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T. G. Kavanagh, J.
Defendant was convicted of perjury in connection with an Oakland County "one man” grand jury. He was charged on five counts, count I of which was dismissed on motion during the course of the trial, and the jury found him not guilty on count III, but guilty on counts II, IV, and V. The Court of Appeals affirmed his convictions.
The counts in the information upon which defendant was convicted read as follows:
’’COUNT U — PERJURY
"On or about the fifth day of April, A.D. 1966, LONNIE C. CASH, upon his oath before the Honorable Philip Pratt, conducting the Judicial Inquiry ordered in the above cause, did feloniously, wilfully, corruptly and falsely swear, in that he answered, 'No’ to the following question asked him: 'So you have never told anyone that there was any money set aside for you by the numbers men?’, whereas in truth and in fact the said LONNIE C. CASH, on or about the seventh day of May, 1965, did tell one Thomas Bowles, in the presence of one Aaron Butler, that there was some money set aside for him by the numbers men, said statement being made at the William Beaumont Hospital located in the City of Royal Oak, Oakland County, Michigan, Contrary to Section 750.422 of the Compiled Laws of 1948: (M.S.A. Section 28.664). (Maximum penalty — 15years).
’’COUNT IV — PERJURY
"On or about the fifth day of April, A.D. 1966, LONNIE C. CASH, upon his oath, before the Honorable Philip Pratt, conducting the Judicial Inquiry ordered in the above cause, did feloniously, wilfully, corruptly and falsely swear, in that he answered, 'No, sir’, to the following question asked him by the Honorable Philip Pratt: 'Have you ever given him (Ernest Wilson) any money after he had exercised his discretion, or judgment, on any matter that came to him as a Township Officer?’, whereas, in truth and in fact, the said LONNIE C. CASH paid Ernest Wilson the sum of approximately $180 on each of two separate occasions; said money being paid to Ernest Wilson under an agreement, whereby he, as the Co-ordinator of the Royal Oak Township Police and Fire Departments, was to initiate a program designed to increase the number of traffic tickets issued, and in return for this effect increase, he (Wilson) was to receive fifty cents per ticket from LONNIE C. CASH, Contrary to Section 750.422 of the Compiled Laws 1948: (M.S.A. Section 28.664) (Maximum penalty — 15 years).
"COUNT V — PERJURY
"On or about the fifteenth day of July, A.D. 1965, LONNIE C. CASH, upon his oath, before the Honorable Philip Pratt, conducting the Judicial Inquiry ordered in the above cause, did feloniously, wilfully, corruptly and falsely swear, in that he stated, 'Trooper Aird has never brought before me a single prostitute, yet I have been in the car with him while prostitutes were present therein at late hours of the night. I speak with special reference to Roselyn Capers. He played with her intimately and said that he would get her one day. He never did’, whereas, in truth and in fact the said LONNIE C. CASH was never in a State Police car with the said Roselyn Capers and Trooper John Aird, nor with Trooper John Aird and any other female person, Contrary to Section 750.422 of the Compiled Laws of 1948: (M.S.A. Section 28.664). (Maximum penalty — 15 years). ”
This appeal makes four assertions of error:
1. The perjury information should have been dismissed because the information was fatally defective for failure to allege the purported false swearing was material to the inquiry.
2. It was reversible error to deny defendant’s counsel an opportunity to examine the grand jury testimony of Thomas Bowles.
3. An investigator for the grand jury may not testify before it.
4. There was inadequate corroboration of the testimony contradicting defendant’s testimony.
Our decision on the second assertion of error regarding the availability of the transcript of the grand jury testimony is controlled by People v Bellanca, 386 Mich 708 (1972).
We find no merit in the third assertion of error.
The trial judge, on a separate record, heard testimony and argument that Trooper Aird was employed by the grand juror. No evidence was adduced that Trooper Aird was paid by the grand juror, Oakland County or anyone other than the State Police. From all of the evidence before him the trial court concluded that Trooper Aird was not an employee of the grand jury. We are not persuaded this conclusion was clearly erroneous.
We are persuaded that the first and fourth assertion of error do have merit, however, and require reversal of defendant’s conviction.
Regarding the issue of whether there must be an averment of materiality of the allegedly false swearing, we are satisfied the Court of Appeals incorrectly stated the law.
That Court held that People v Kaplan, 256 Mich 36 (1931), apparently abandoned Michigan’s long standing requirement that materiality of the false swearing to the matter in question must be alleged or it must clearly appear so from the statements alleged to be false. See People v Collier, 1 Mich 137 (1848); Hoch v People, 3 Mich 552 (1855); and People v Vogt, 156 Mich 594 (1909).
In People v Kaplan, supra, the indictment charged:
" 'The said Jacob Kaplan * * * knowingly, falsely, wilfully, maliciously, corruptly, and feloniously did so depose and swear, well knowing that said testimony was false and * * * that the matters so sworn to before said grand jury were material matters.’ ”
The Court in that case approved an amendment to the indictment to charge specifically that the perjured testimony was false and material, although it held that the indictment as first framed was sufficient.
Thus Kaplan did not change the rule enunciated in Collier; supra. The language approving the statutory form of indictment was dicta which in our view no fair reading would stretch to cover the point asserted by the Court of Appeals. We hold that the Collier rule is still an accurate statement of the law in Michigan, viz, materiality of the false swearing to the matter in question must be alleged or it must clearly appear so from the statements alleged to be false.
We test each count against this standard.
Count II.
The people established that defendant visited Thomas Bowles in a hospital and had a conversation with him which was recorded. Part of the recording allegedly showed that the defendant said in essence:
"I know the bag men in town, I know where the money goes. These people know that I know that, and they know deep in their heart that I am not involved. There’s a little sack for me, but I don’t get it, and I don’t intend to.”
In his grand jury testimony the following question was posed to defendant:
"So you have never told anyone that there was any money set aside for you by the numbers men?”
and he answered: "No”.
Whether defendant ever told anyone that any money was set aside for him by the numbers men is not alleged to be material to the issue in question, to wit — whether certain crimes, offenses or misdemeanors have been committed. Neither does it appear so from the statement alleged to be false: "I never told anyone there was any money set aside for me by the numbers men.”
The motion to quash should have been granted as to Count II.
Count V
This count was based on defendant’s statement to the grand juror:
“Trooper Aird has never brought before me a single prostitute, yet I have been in the car with him while prostitutes were present therein at late hours of the night. I speak with special reference to Roselyn Capers. He played with her intimately and said that he would get her one day. He never did.”
At defendant’s trial both Trooper Aird and Roselyn Capers denied the accusation.
The crimes, offenses and misdemeanors the judicial inquiry was to investigate did not include asserted sex offenses by Trooper Aird or anyone else. The defendant’s statement that he was in the car with Trooper Aird at late hours of the night when prostitutes were present in the car and that on one occasion the Trooper played intimately with prostitute Roselyn Capers and said that he would get her one day — is not alleged to be material to the issue in question nor does it appear to us to be so.
The motion to quash should have been granted as to Count V.
Count IV
With respect to Count IV, however, we are satisfied that under the rule of Collier there is a sufficient charging.
Whether or not defendant paid Ernest Wilson money for the exercise of his discretion as the Co ordinator of the Royal Oak Township Police and Fire Departments was manifestly material to the issue in question. The truth or falsity of defendant’s statement of denial would indeed be material to his guilt of perjury.
The motion to quash Count IV was properly denied.
The fourth assertion of error really states two problems: 1) the admissibility of the "traffic book” and 2) the sufficiency of the evidence including the "traffic book” to corroborate the testimony of Ernest Wilson.
Count IV was based upon defendant’s testimony regarding payments to one Ernest Wilson, Township Traffic Co-ordinator.
The grand juror asked the defendant (according to the information):
"Have you ever given him (Ernest Wilson) any money after he had exercised his discretion, or judgment, on any matter that came to him as a Township Officer?”
Defendant answered "[n]o, sir.”
Ernest Wilson subsequently testified that defendant agreed to pay him fifty cents per violation if the traffic tickets in\ Royal Oak Township were increased. He also testified that defendant made several payments to him of approximately $180 each in connection with traffic tickets.
Over defendant’s objection, a "traffic book” which was kept under Wilson’s order, which indicated some of the traffic tickets issued in Royal Oak Township during a certain time, was admitted into evidence.
This "traffic book” was a log of traffic tickets issued by the police department. It was the practice of the department to maintain this log at the time Mr. Wilson came into the department and it continued while he was Co-ordinator. Entries were made by the officer issuing the ticket, the officer on the desk, or a clerk. Ernest Wilson testified that the defendant made payoffs to him at the rate of fifty cents per ticket and that the amount of the payoff was checked against the traffic book. It does not appear to us that it was clearly erroneous to admit the traffic book.
But though we find the traffic book admissible, we are compelled to agree with defendant that it is not adequate to corroborate Ernest Wilson’s testimony that he paid the defendant as alleged.
Conceding the people’s assertion that it reflects an increase in the number of tickets issued during the alleged payoff period, such fact does not tend to establish the bribe.
The law is well established that to sustain a conviction for perjury the prosecution must prove the falsity of the statement made by the defendant. This is done by establishing the truth of its contradiction. It is not enough simply to contradict it, but evidence of the truth of the contradiction must come from evidence of circumstances bringing strong corroboration of the contradiction. People v Kennedy, 221 Mich 1 (1922); People v McClintic, 193 Mich 589 (1916).
The increase in the volume of traffic tickets shown by the traffic book is ambivalent and standing alone cannot establish the corpus delicti.
"This testimony has its rightful place in the case, but it is as capable of being harmonized with the theory of innocence as with that of guilt. It has no direct bearing on the corpus delicti and is not of that force and character that the law requires of corroborating circumstances in perjury cases.” People v Kennedy, supra, at p 4.
There is no other evidence in the record to corroborate Wilson’s charge and accordingly the conviction must be reversed.
Defendant discharged.
T. M. Kavanagh C. J., and Adams, T. E. Brennan, and Swainson, JJ., concurred with T. G. Kavanagh, J.
Williams, J., concurred in the result.
Black, J., did not sit in the case. | [
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Starr, J.
Defendant appeals from an order which denied his petition to modify a decree of divorce by cancelling unpaid alimony, and which directed the friend of the court to “bring on contempt proceedings” against him.
In February, 1927, plaintiff obtained an uncontested decree of divorce from defendant and was given the care and custody of their minor son Jack, born May 9, 1922. The decree granted her alimony of $10 a week for the care and maintenance of said child until he attained the age of 16 years or until the further order of the court. Five days after obtaining her divorce, plaintiff remarried and four children were born of such venture. The son Jack went through school and was graduated from high school under the surname of his stepfather “Watts.” He became 16 in May, 1938, and in October, 1941, joined the Royal Canadian Air Force.
On plaintiff’s petition an order for defendant’s attachment for nonpayment of alimony was entered January 6, 1928, and on January 23, 1928, he filed petition to modify the decree by cancelling past-due and future alimony. Apparently such attachment was not served on defendant, nor was his petition for modification heard and determined. Thereafter, on one or more occasions, plaintiff interviewed the friend of the court regarding defendant’s failure to pay the alimony, but no proceedings were instituted against him until March 12, 1942, when she filed petition for an order to show cause why he should not be held in contempt for nonpayment. Five days later, on March 17th, he filed a petition to modify the decree by cancelling all accumulated unpaid alimony. It appears that the order to show cause in the contempt proceedings and defendant’s petition to amend the decree were brought on for hearing together, and testimony was taken bearing upon both issues.
Prior to the hearing the matter was referred to the friend of the court, who “recommended that upon payment of $300 by (defendant), * * * the alimony arrearage be cancelled.” On January 11, 1943, contrary to such recommendation, the trial court entered an order which denied defendant’s petition to amend the decree, and which directed the friend of the court “to bring on contempt proceedings” against him. Defendant appeals from such order. This being a chancery matter, we consider the same de novo.
On February 4, 1943, the trial court entered an order directing defendant to pay $20 a month, pending the present appeal, to apply on the accumulated ' unpaid alimony, such payments to be “without prejudice to the rights of either party.” The record indicates that further action in the contempt proceedings awaits our decision on this appeal.
It was shown that defendant had paid only $25 in 1927 and $50 in 1941, and that a balance of about $5,775 remained due and unpaid under the decree at the time the son Jack became 16 in 1938. The testimony of plaintiff and defendant as to why the alimony was not paid is in direct conflict. Defendant claimed that after the decree of divorce was entered in 1927, he was not permitted to visit or talk with his son, and that plaintiff agreed orally that if he would not visit the son, she would not collect the alimony. Plaintiff denied making such agreement and claimed that she had used her best efforts to make collection. The record shows that defendant remarried in 1931; that, except for about two years spent in Maine and a few months at Croswell, Michigan, he had resided continuously in the city of Detroit; that he was unemployed for about two years during the depression; that he was earning $38 to $40 a week; and that he had no property except about $100 in government bonds. Prior to bis becoming 16 in 1938, tbe son Jack had been supported by plaintiff and her second husband Watts, whose surname be bad assumed.
Tbe principal question before tbe trial court and before us on this review is whether or not there was such a change in tbe circumstances and condition of tbe parties as to justify modification of the divorce decree as regards alimony. Baxter v. Baxter, 296 Mich. 567. While recognizing tbe general rule that the amendment of a divorce decree is discretionary with tbe trial court, nevertheless, ,we are convinced that bad we been sitting as tbe trial court in tbe present case, we would have reached a different conclusion. The rights of tbe son are not involved, as tbe alimony allowance terminated when be became' 16, and apparently be is now self-supporting. Through tbe present contempt proceedings plaintiff is endeavoring to collect unpaid alimony to reimburse herself for moneys which she and her second husband expended for tbe support and maintenance of tbe son. Defendant promptly answered such proceedings by filing petition to amend tbe decree by cancelling tbe unpaid alimony.
Plaintiff bad no absolute right to tbe accumulated alimony, as tbe amount thereof could be changed from time to time and reduced in tbe discretion of tbe court. In Wellman v. Wellman, 305 Mich. 365, 371, we quoted with approval from Perkins v. Perkins, 10 Mich. 425, as follows:
“The decree of alimony vests in the wife no absolute right to the allowance, as it may be changed from time to time, and reduced or enlarged in the discretion' of the court.’!
See Loomis v. Loomis, 273 Mich. 7; Camp v. Camp, 158 Mich. 221.
In the Loomis Case a decree of divorce obtained by plaintiff Marie Loomis in September, 1928, ordered defendant to pay alimony of $20 a week for the support of their minor children. Defendant-failed to make snch payments, and in March, 1934, plaintiff filed petition for attachment. Defendant then moved to amend the decree by reducing the amount of the unpaid alimony. Plaintiff appealed from an amended decree which reduced the amount of alimony due her to $460. In affirming such amendment, we said:
“That the court may modify and revise provisions for alimony is unquestioned, Sherman v. Kent, 223 Mich. 200, also 3 Comp. Laws 1929, §§ 12739, 12748 (Stat. Ann. §§ 25.97, 25.106). However, there must be a change in the condition of the parties arising since the decree to justify the modification of a decree for maintenance of children. Gould v. Gould, 226 Mich. 340. And where alimony is due and unpaid, the court may modify the decree as to the accrued amount. Nixon v. Wright, 146 Mich. 231 (10 Ann. Cas. 547).”
We note that the procedure in the Loomis Case, where plaintiff filed petition for attachment for nonpayment of alimony and defendant answered with a motion to amend the divorce decree, was substantially the same as that in the present case, where plaintiff began contempt proceedings and defendant countered with a petition to amend the decree.
Plaintiff certainly was dilatory in her efforts to collect the alimony from year to year. Her failure for a period of nearly 15 years to use reasonable efforts to obtain payment through the means provided by law lends credence to defendant’s claim that she agreed not to collect it if he would agree not to visit the child. Apparently she elected to support the child herself rather than to compel defendant to contribute the decreed alimony for his support. We do not overlook the fact that she remarried within five days after divorcing defendant, but the four children resulting from such second marriage cannot operate to impose any additional obligations on defendant. Her claim for alimony long past due, which she failed to use reasonable efforts to collect, is in large part a stale claim.
In the case of Smith v. Smith, 246 Mich. 80, involving proceedings for the nonpayment of alimony, we said:
' ‘ Over 20 years elapsed between the time payment was due under the decree and the date of filing this petition. While the proofs disclose that the defendant was absent from this State during a large portion of this period, it appears that he resided within the State for eight and a half years. * * * While courts should render every reasonable assistance in enforcing their decretal orders affecting property rights, they are not bound to aid litigants who are not reasonably diligent in the enforcement of such rights.”
See Sullivan v. Sullivan, 300 Mich. 640; Stone v. Stone, 162 Mich. 319; Zoellner v. Zoellner, 46 Mich. 511; Price v. Price, 80 Col. 158 (249 Pac. 648); Franck v. Franck, 107 Ky. 362 (54 S. W. 195); Bogert v. Watts, 32 N. Y. Supp. (2d) 750.
In the case of Van Dommelen v. Van Dommelen, 218 Mich. 149, 154, we said:
“In making the award (of alimony), and later in enforcing it, the court is expected and required to have due regard to the ability of the husband, the character and circumstances of the parties and all other circumstances of the caseW
See Barry v. Barry, 291 Mich. 666; Tyson v. Tyson, 283 Mich. 192; Kelly v. Kelly, 194 Mich. 94; Aldrich v. Aldrich, 166 Mich. 248.
In view of defendant’s present financial condition and the facts and circumstances shown by the record, it certainly would be inequitable and purposeless to saddle him with a debt of $5,775 for the reimbursement of plaintiff, which debt he apparently would never be able to pay. "We are impressed with the recommendation of the friend of the court that, upon defendant’s paying plaintiff $300, the balance of the accumulated alimony be cancelled. The record clearly indicates such a change in the circumstances and condition of the parties as to justify the amendment of the decree by cancelling all unpaid alimony except the sum of $300 find the $20 per month allowance pending this appeal. Such amounts are all that defendant, in his present financial condition, can reasonably be expected to pay.
"We conclude that, upon defendant’s paying to the friend of the court for plaintiff’s benefit, the $20 per month, pending this appeal, as provided by the trial court’s order of February 4, 1943, and paying the further sum of $300 in monthly instalments of $20- each, the balance of the accrued and unpaid alimony shall be cancelled.
The order of the trial court entered January 11, 1943, is vacated and set aside and a decree may be entered in this court in accordance with this opinion. Such decree shall remand the case to the trial court for such further proceedings as may be necessary. In view of the financial condition of the parties no costs are allowed.
North, C. J., and Wiest, Boyles, and Reid, JJ., concurred with Stare, J. | [
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Butzel, J.
Plaintiff as father of a deceased minor brought suit against Fredericka Schuknecht, herein called the defendant, and the American Bonding Company, the surety on her bond, claiming that his son’s death was due to a violation of the liquor law by the defendant who ran the tavern. Liability is claimed under Act No. 8, § 22, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 281, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 9209-37, Stat. Ann. 1943 Cum. Supp. § 18.993). On June 28,1942, plaintiff’s decedent, almost 18 years of age, accompanied by two other young men over 21 years of age, all residing in Algonac, Michigan, went to Detroit. After dinner they went to a theater and then drove back home. They stopped at the Schuknecht tavern near Algonac, Michigan, at 11:30 p. m. It was shown that defendant sold each of the boys two and one-half glasses of beer. The boys then went to the Tassie tavern, also not far from Algonac, and there each of them was served with three bottles of beer. They remained at the Tassie tavern until its closing time about 2 a.m. As they started for their car, the path led through a wooden archway consisting of two upright posts with an eight-inch beam on top of the posts about nine feet from the ground. Plaintiff’s decedent leaped in the air, caught the cross-beam, swung on it and jumped off. The other boys who were shorter in stature were not able to perform this feat. Plaintiff’s decedent then attempted it a second time. The swinging on the beam evidently moved it off the upright posts and as plaintiff dropped to the ground, the beam fell upon his head and crushed his skull. He died shortly thereafter. Plaintiff began suit against defendant and her bonding company and also against the owners of the Tassie tavern and their bonding company. The suit was discontinued as to defendant and her bonding company and the instant suit was begun against them alone. The suit against the Tassies and their bonding company was dismissed upon the payment to the plaintiff of the sum of $1,800 in. consideration of a covenant not to sue the Tassies and their bonding company. Defendant in the instant suit did not set forth this agreement not to sue in the original answer, bnt at the opening of the case in the absence of the jury, the attorneys for defendant moved the court that they be permitted to amend their answer so as to show as a special defense that the sum of $1,800 had been paid in full compensation for the damages or in mitigation of any damages that might be recovered for the injury. In the declaration in the instant case, it was sought to recover ordinary and exemplary damages for the entire injury.
Plaintiff’s attorney stated that he made no objection as to the timeliness.of the motion but insisted that it be denied for legal reasons. The trial judge stated that there was only one case before him and what happened in another case, in which the defendants were not parties, had nothing to do with the issue in the case being tried, and he therefore denied the motion. No testimony was introduced showing the payment of $1,800 from the Tassies and their bonding company. The jury awarded a verdict of $1,500 against defendant. The judge denied a subsequent motion by defendants asking for the satisfaction of the judgment of $1,500 in the instant case on the ground, as the jury found, that the entire damage for the injury was only $1,500 and plaintiff had already received $1,800, more than the amount of the judgment for damages for the same injury. Defendants appeal claiming that they should have been permitted to show the. receipt of the $1,800 in mitigation of the damages or in full satisfaction thereof.
Under Act No. 8, § 22, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 281, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 9209-37, Stat. Ann. 1943 Cum. Supp. § 18.993), suit may be brought against any person or persons who caused or contributed to the intoxication or to the injury resulting therefrom. Suit may be brought against persons jointly or severally. The present case is not one where there have been repeated injuries brought about by intoxication but there has been one injury for which the jury found defendant responsible. This is the same injury for which plaintiff had received $1,800 from the Tassies. We shall not discuss which of the taverns was to blame but, under plaintiff’s theory, had plaintiff’s decedent stopped at six different places instead of at two to buy the two and one-half glasses and three bottles of beer, plaintiff could recover from each one of them a substantial amount without disclosing what he had received from the others. The damages are not punitive; they may be exemplary as provided for by the statute. It is true that if each one of the tavern keepers was responsible for the intoxication or for contributing to it and the intoxication caused decedent’s conduct resulting in death, suit could be brought against all who contributed to the same intoxication for all damages resulting to the plaintiff within the purview of the statute. 1 Cooley on Torts (3d Ed.), p. 527, citing Johnson v. Johnson, 100 Mich. 326; Jewell v. Welch, 117 Mich. 65. The covenant not to sue did not release defendant from any liability that existed. However, while it is true that the release of the Tassies did not release defendant, nevertheless, plaintiff could have but “one satisfaction for his injuries; the amount paid to the person in whose favor the covenant not to sue is given will be regarded as a satisfaction pro tanto as to the joint tort-feasors.” 50 A. L. R. 1085, and the citations thereunder; also in 66 A. L. R. 206 and 104 A. L. R. 931; also, 4 Eestatement, Torts, § 885. This principle was also referred to in Garstka v. Republic Steel Corp., 294 Mich. 387.
Plaintiff’s attorneys claim in their brief that al though the arguments to the jury were not taken down stenographically and, therefore, do not appear in the record, the fact was repeatedly called to the attention of the jury that the Tassies were parties to another suit. Defendants filed no reply brief denying this claim. We only consider what appears in the record. However, it is quite conceivable that the jury considered the Tassies more responsible for the boy’s death than the defendant in the instant case, and concluded in assessing damages that recovery also would be had from the Tassies. There was error in not permitting appellants to amend arid show that plaintiff had received a substantial sum on account of the damages.
While some doubts may be expressed because of certain previous decisions, it is now settled that moneys paid by a tort-feasor in consideration of a covenant not to sue does not operate as a release of the other tort-feasors for any damages above the amount paid by the tort-feasors against whom the suit has been discontinued. Under Act No. 303, § 2, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 14497b, Stat. Ann. 1943 Cum. Supp. § 27.1683 [2]), it is provided:
“It shall be lawful for all persons having a claim or cause of action against 2 or more joint tortfeasors to compound, settle with, and discharge, at any time prior to rendition of a judgment in said action, any and everyone or more of said joint tortfeasors for such sum as such person may deem fit, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the remaining joint tortfeasors, against whom such person, or persons, has such claim or cause of action, and not so released.”
Plaintiff has the right to continue his suit against the defendants to recover such damages, if any, that the jury shall determine plaintiff suffered, over and above tbe sum plaintiff has already received in consideration of the covenant not to sue from the tortfeasors against whom the suit has been discontinued. Defendants have the right to show this payment pro tanto in the continuation of the suit against them.
The judgment is reversed, with costs to defendants, and the case remanded for new trial.
North, C. J., and Starr, Wiest, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Reid, J.
Plaintiffs appeal from a judgment of the circuit court, which judgment affirmed the judgment for the defendant rendered by a circuit court commissioner, in a summary ouster proceeding brought by plaintiffs against the defendant corporation.
Plaintiffs are the owners of the property involved in the proceeding, situate at 467 South Woodward, Birmingham, Michigan. The building on this property was constructed for automobile business.
On December 31, 1945, defendant entered into an agreement with plaintiffs to lease the premises for a •term of 5 years commencing September 1, 1946, to be used for conducting a Lincoln and Mercury sales and service business. The agreement to lease provided that defendant should have possession of parts of the building as soon as plaintiffs should be able to dispossess the then tenants of various parts of the building, and not later than August, 1946. Defendant was to have possession of all of the building not later than September 1, 1946, at which time a lease for 5 years was to be executed, which lease was to be for $350 rent per month and defendant at the end of the 5-year period was to have the option of renewal for another 5-year period, at the same rent. Defendant obtained possession of part of the premises in the spring of 1946 and thereafter paid a proportionate part of the rent. Defendant in June, 1946, after obtaining possession of part of the building but before obtaining full possession of all the building, leased another building more suitable for defendant’s business, and notified plaintiffs that defendant would not be able to use the premises as originally intended. In the ensuing discussion, plaintiffs were not willing to release defendant from its agreement to lease the property. A lease between plaintiffs and defendant was signed September 1, 1946, and contained the provision that the premises were to be “used and occupied only for the purpose of conducting an automobile dealership, for any lawful purpose in accordance with any city ordinance,” and among other things also provided that the “landlord hereby agrees that the tenant may assign or sublet the above premises or any part thereof.” Thereafter and on October 29, 1946, defendant informed plaintiff George M. Dwelley by letter that defendant had arranged to sublease the premises to Berry Door Company and that defendant sought Dwelley’s written approval, and George M. Dwelley’s approval was signed at the bottom of the letter.
On August 24, 1951, a few days before the lease of September 1, 1946, expired, defendant wrote to plaintiffs that it “elects to exercise the option to renew, for an additional period of 5 years, the lease from you to it, dated September 1,1946.” Plaintiffs refused to extend the lease for the additional 5-year period and instead, brought the summary ouster proceeding which is • before this Court on appeal herein.
Plaintiffs claim that the subletting is beyond and outside of the scope of defendant’s charter, and that by the subletting defendant rendered the lease from plaintiffs void. The trial court found that defendant fully performed the lease on defendant’s part and timely exercised defendant’s option to renew the lease.
Article 2 of the defendant’s incorporation is as follows:
“The purpose or purposes of this corporation are as follows:
“To buy, sell, own, lease, deal in and deal with, store and repair automobiles, trucks, and all other types of motor vehicles;
“To manufacture, buy, sell, deal in and deal with parts and accessories used in and about motor vehicles, together with all articles and supplies used in connection with the purchase, sale, storing and repairing of motor vehicles of all descriptions;
“To buy, sell, own, lease and operate garages, service stations, and repair shops for all types of motor vehicles.
“(In general to carry on any business in connection therewith and incident thereto not forbidden by the laws of the State of Michigan and with all the powers conferred upon corporations by the laws of the State of Michigan.)”
Plaintiffs cite and rely upon Anderson v. Conductors Protective Assurance Co., 266 Mich 471, 476, 477, as upholding plaintiffs’ claim as to effect of ultra vires. The Anderson Case was decided April 3 1934.
’ Our statute, CL 1948, § 450.11 (Stat Ann § 21.11), effective June 6, 1935, provides:
“The plea of ultra vires shall not be made by anyone except by (1) the corporation in an action between it and a director or officer thereof or a person having actual knowledge of the ultra vires character of the act or (2) by either party in an action between a shareholder and the corporation. The foregoing provision shall be construed as a limitation on tlie power of a corporation.
“The plea of ultra vires shall not be made by any foreign corporation or any other party in any action brought in this State except (1) between such corporation and a director or officer thereof.or a person having actual knowledge of the ultra vires character of the act or (2) by either party in an action between a shareholder and the corporation.”
The Anderson decision is not considered by us as preventing the application of the later enacted statute just cited above to the case at bar. Plaintiffs are barred by the above-cited statute, CL 1948, § 450.11 (Stat Ann § 21.11), from availing themselves of the claim that the lease in question was ultra vires as to defendant corporation.
Plaintiffs seek in this Court, for the first time,- to raise the question that defendant violated the lease, and plaintiffs claim here and now the right to have the lease declared void and terminated by reason of breach by defendant.
Plaintiff George M. Dwelley in his letter to defendant dated July 12, 1951, complained of defendant as breaching the covenants of the lease.
Plaintiffs’ attorney made the claim and position óf plaintiffs known to the circuit court, at the beginning of the trial, as follows:
“The reasons which Mr. Dwelley gave as to why it should be given up we will not go into because we have decided that the legal question should control in this matter, and the legal question is that at the time the defendant corporation made this contract they were not empowered to make it, it was ultra vires and void and is void and being void from its inception, no right of renewal exists in the defendant.”
The question as to whether defendant breached the lease will not be considered in this Court where it was not raised in the trial court.
“We have repeatedly held that a case in the Supreme Court will not be reviewed on a theory different from that on vthich it was tried below.” Gustin v. Ziem, 289 Mich 219, 224.
Judgment for defendant is affirmed, with costs to defendant.
Dethmers, Btjtzel, Carr, Btjshnell, Sharpe, and Boyles, J J., concurred.
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Carr, J.
Plaintiff brought suit for separate maintenance under the provisions of CL 1948, § 552.301 ,(Stat Ann § 25.211), alleging in her bill of complaint desertion and nonsupport as the bases for the relief sought. Defendant by answer denied the charges made against him. He also filed a cross bill alleging that plaintiff and cross-defendant had been guilty of conduct constituting extreme and repeated cruelty as to him. Cross-defendant filed answer denying such charges,- and the case was heard on the pleadings and proofs of the parties. The trial judge came to the conclusion that plaintiff had failed to establish her right to the relief sought by her, and that her conduct had been such as to justify and require the granting of an absolute decree of divorce to defendant and cross-plaintiff. A decree was entered accordingly and plaintiff has appealed.
The parties were married in 1922. Of such marriage 3 children were born, the youngest now being-19 years of age. Cohabitation in the marital relation ceased in 1932, following the birth of the youngest child, but the parties continued to live under the same roof until on or about May 1, 1942, at which time defendant and cross-plaintiff left the home. On. the trial of the'case'it was his claim in substance that cross-defendant’s attitude toward him was such that the situation was intolerable and that no course was open to him other than to establish a residence elsewhere.
Although defendant earned good wages during the time that the parties lived together it does not appear that they accumulated any property. It is a fair conclusion from the proofs in the case that prior to 1942 he' supported his family in a reasonable manner, and'that after he left the home he contributed to the support of plaintiff and the then minor children who remained in the home. The son of the parties, then 16 years of age, left his mother during the year 1942. On the trial of the case he testified that he did so because of her irritating attitude toward him, claiming that she was “hard to get along with.” Prior to the starting of the present case in April, 1949, the younger daughter of the parties also left her mother, thereafter making her home with her father and being supported by him.
The decree entered by the trial court granted to cross-defendant as permanent alimony the sum of $20 per week, such payments to continue for the duration of her life, or until her remarriage, or until the further order of the court. It was also provided that cross-plaintiff pay to her the sum of $500 to help her defray the fees and expenses of the attorneys who represented her on the trial, and other attorneys appearing in her behalf at different stages of the proceeding. In the event that cross-defendant deemed herself in need of medical or dental care, she was authorized by the decree to file a petition with the friend of the court to the end that her claim for such assistance might be investigated and a determination reached as to whether cross-plaintiff should be required to furnish the requested medical or dental care.
It is the claim of the appellant that the trial court was in error in denying relief to plaintiff and in granting a decree of absolute divorce to cross-plaintiff. It is argued in substance that the conclusions on which the decree was based were not in accord with the proofs. The testimony on the trial as to the conduct of the parties resulting in their marital difficulties and separation was in conflict. The determination of disputed issues rested largely on the matter of credibility of witnesses, especially the parties to the case. The trial judge having had opportunity to observe the parties and to listen to their claims was in better position than is this Court to determine the weight to be given to specific testimony. In Chubb v. Chubb, 297 Mich 501, 506, it was said:
“While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration, is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances. Brookhouse v. Brookhouse, 286 Mich 151; Stratmann v. Stratmann, 287 Mich 94; Westgate v. Westgate, 291 Mich 18.”
The statement, above quoted, has been referred to in many subsequent decisions of this Court. Kolberg v. Kolberg, 312 Mich 42; Johnson v. Johnson, 314 Mich 376; Wells v. Wells, 330 Mich 448.
The proofs in the ■ case fully justify the conclusion that plaintiff habitually indulged in conduct that made the home life of the parties extremely unpleasant. The trial judge concluded that she was “emotionally unstable.” It was defendant’s claim that he sought to avoid quarrels by staying away from home on occasions when otherwise he would have been with his family. The difficulties between plaintiff. and the 2 younger - children, resulting in their leaving her home, are indicative to some extent at least of her general attitude as a wife and mother.
It also appears that after cross-plaintiff left the home in 1942 plaintiff procured his arrest on a warrant charging nonsupport, such proceeding resulting in the entering of an order in the recorder’s court of the city of Detroit for the making of weekly payments by him for her support. He complied with the order but notwithstanding such fact plaintiff procured the issuance of a second warrant, the proceedings on which were dismissed when the situation was called to the attention of the court. Evidence was also introduced in the case showing that she had complained to cross-plaintiff’s employers concerning his alleged conduct, causing him em barrassment. We are in accord with the conclusion of the trial court that cross-plaintiffs conduct was not commendable in all respects, but that the situation created by plaintiff was, in the main, responsible therefor. Her actions were such as to indicate a total lack of affection for him on her part and a desire to cause him embarrassment and injury. We think that the proofs in the case did not sustain the 'claim of the plaintiff that she was entitled to separate maintenance on the grounds of desertion and nonsupport as alleged in her bill of complaint, and that the action of the trial court in granting a decree to cross-plaintiff is fully supported by the record.
Appellant also contends that the amount of alimony provided in the decree is insufficient for her needs and that the earning ability of the cross-plaintiff is such as to justify a larger payment per week. As before noted, the prescribed payments at the rate of $20 per week are to continue, under the decree entered, until the death or remarriage of the plaintiff, or “until the further order of this court.” If conditions change in such manner as to render necessary an increase in the payments of alimony plaintiff will have her remedy by way of petition for modification of the decree.
The claim was stressed in the trial court, and also on this appeal, that plaintiff is not in good ■.health. The trial judge, as is indicated by his opinion in the case, came to the conclusion that she was not incaioacitated from working and, further, that it would be much better for her if she were suitably employed. Inasmuch as the decree, as above pointed out, is subject to modification under changed circumstances, we think that the alimony provision therein should not be modified at this time by an increase in the amount of the weekly payment.
The decree of the trial court is affirmed, without costs.
Dethmers, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
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Swainson, J.
Plaintiffs own a 15-1/2 acre tract of land in the City of Warren. In 1967 the tract was zoned for multiple family dwellings. Plaintiffs desired to construct low-rise multiple dwellings and submitted a site plan to defendant planning and urban renewal commission in July 1968. The commission failed to approve the plan and plaintiffs commenced an action for writ of superintending control in the nature of mandamus.
Hearing was had before the trial court on January 13, 1969. Defendant asserted at the hearing that four of plaintiffs’ proposed buildings were situated too close to Mound Road because the State Highway Department proposed to build an expressway over Mound Road and this proposed expressway had been incorporated into the city’s master thoroughfare plan. Mound Road is presently 204 feet wide. The State Highway Department’s plans called for widening Mound Road by 200 feet on the west side of the existing road. (This is the side of the road that abuts plaintiffs’ property.) When, or if ever these plans will be implemented, is uncertain, although defendant contends that the proposed plans call for the State Highway Department to commence acquiring property for such widening in 1971 or 1972. Under plaintiffs’ plan as submitted to the planning commission, their buildings 1, 2, 3 and 6 would be located in the path of the proposed widened Mound Road.
At the conclusion of the hearing, the court suggested that the parties attempt to relocate some of the proposed buildings outside the path of the proposed widened Mound Road. The parties met pursuant to the trial court’s suggestion, and they agreed that buildings 1 and 2 would be built as shown on the site plan; also, that buildings 3 and 6 could be relocated west of a line 240 feet west of the existing boundary of Mound Road — 200 feet for the new right-of-way and 40 feet for a setback required under the local zoning ordinance. The reason all four buildings could not be relocated was because of the city ordinance regulating the density of the project.
The agreement, by reference to certain site plans, was embodied in a judgment entered on January 20, 1969. Construction was begun and it was then discovered that a mistake had been made by plaintiffs’ planning consultant, so that it appeared there were 69 additional feet in the existing right-of-way than actually existed. This mistake occurred because the judgment order entered on January 20, 1969, incorporated by reference plaintiffs’ revised site plan, and, according to the site plan, the center of Mound Road and the east line of section 5 (Town 1 North, Range 12 East, of the City of Warren) appeared as one and the same. However, the east line of section 5 was actually 69 feet east of the center of Mound Road. Due to this error, buildings 3 and 6 were being constructed east of and within the 240-foot line. Buildings 3 and 6 were, respectively, 185 feet and 195 feet west of the present westerly line of Mound Road, and buildings 1 and 2 were, accordingly, also 69 feet closer thereto.
On September 26, 1969, defendant filed complaint for injunctive relief and an order to show cause why all four buildings should not be removed because they were not being built in accordance with the site plan. The trial court ruled that buildings 1 and 2 could remain, provided buildings 3 and 6 were removed.
On appeal to the Court of Appeals, the majority opinion held that the original judgment was based on a mutual mistake and the parties should, therefore, not be bound by it. The Court further held that on the merits of the case, the city was not authorized to prevent the construction of the buildings. 29 Mich App 309. The dissenting opinion held that the parties entered into a consent judgment and were bound by it. We granted leave to appeal. 384 Mich 827.
On appeal to this Court, the following four issues were agreed to by both parties:
1. Whether the judgment order of January 20, 1969, was a consent judgment?
2. Whether there was a mutual mistake of a material fact?
3. Whether the City of Warren has the power to prevent a landowner from constructing buildings within a proposed right-of-way as designated by a recorded master thoroughfare plan?
4. Whether the trial judge exceeded his equitable powers in ordering the demolition of plaintiffs’ partially completed multiple-dwelling buildings, which were not constructed in accordance with the judgment of January 20, 1969?
We agree with the majority of the Court of Appeals that there was a mutual mistake of fact which abrogates the judgment of the circuit court. We further hold that based on the merits, the ordinance of defendant city is unconstitutional as a violation of due process of law.
I
Under the revised site plan, the center line of Mound Road and the east section line of section 5 were shown to coincide. In fact, the present center line of Mound Road is 69 feet west of the east section line. The parties thus mistakenly believed that they had an extra 69 feet within which to locate these buildings. Because they did not, buildings 3 and 6 would be within the proposed widening of Mound Road.
Plaintiffs contend that they entered into the agreement only because they believed their buildings would be west of the 240-foot line. Defendant asserts that a representative of plaintiffs made the mistake and that plaintiffs should be bound by it. It is true that the mistake was made by a planning consultant employed by plaintiffs. One of plaintiffs’ construction personnel was, in fact, also aware of this mistake. However, it is also clear that plaintiffs themselves did not have any knowledge of this fact. Both plaintiffs and defendant honestly and in good faith believed that the site plan was proper and that the agreement worked out by the parties could be fulfilled. Thus, we hold that there was a mutual mistake of fact which occurred in the original judgment entered by the trial court.
The question of whether there was a consent judgment is not necessary to a resolution of the issues in this case. Once a determination has been made that a mutual mistake of fact occurred, a court has the power to correct that mistake by vacating the judgment. This is true even in the case of a consent judgment. Hews v Hews, 145 Mich 247 (1906); Horning v Saginaw Circuit Judge, 161 Mich 413 (1910); J L Hudson Co v Barnett, 255 Mich 465, 469 (1931). See, also 46 Am Jur 2d, Judgments, § 717, p 870.
We believe such a mistake of fact did occur and we agree with the Court of Appeals that the rights of the parties should be adjudicated on the merits.
Defendant contends that the City of Warren has the authority to prevent a landowner from constructing buildings within a proposed right-of-way as designated by a recorded master thoroughfare plan, and relies on MCLA 125.51 et seq.; MSA 5.3007(1) et seq. in support of such contention. This statute allows a planning commission, after the adoption of a master plan, to certify plats of precise proportions to the local legislative body and to regulate buildings within such lines.
Defendant cites 26 Am Jur 2d, Eminent Domain, § 169, pp 843-844, and Miami v Romer, 73 So 2d 285 (Fla, 1954), for the proposition that such statute is constitutional and does not constitute a taking of land. However, the difficulty with defend ant’s position is that it has failed to follow the procedures outlined in the statute. MCLA 125.52; MSA 5.3007(2) provides in part:
"The legislative body of any city or village may by ordinance adopt any such precised plat certified to it by the planning commission as provided in section 1: Provided, That notice of time and place when and where it shall be considered for final passage shall be sent by mail to the record owners of land located within or abutting on the new lines of such proposed streets, ways, places, parks, playgrounds or other public grounds or extensions thereof designated on the plat.”
Defendant concedes the statutory notice was not sent to every property owner, including plaintiffs. It contends, however, that actual notice was not necessary because plaintiffs had constructive notice, since the plan was recorded in the register of deeds’ office. It further asserts that plaintiffs are estopped from contending violation of the statutory provisions since they did not challenge same in the original proceedings. However, we have held that due to the mutual mistake which occurred, we would decide the rights of the parties as if no judgment had been entered, and, thus, no estoppel has occurred.
The terms of the statute are clear. It says, "notice of time and place when and where it shall be considered for final passage shall be sent by mail to the record owners of land located within or abutting on the new lines of such proposed streets”. No exception is provided for constructive notice. The Legislature in clear and unequivocal language stated that property owners must be given actual notice. This was admittedly not done, and defendant may not now rely on this statute.
Two other pertinent statutes to be considered in this context are the city or village zoning act (MCLA 125.581 et seq.; MSA 5.2931 et seq.) and the home rule act (MCLA 117.1 et seq.; MSA 5.2071 et seq.), particularly section 4i thereof, MCLA 117.4Í; MSA 5.2082. Defendant asserted in the Court of Appeals that these statutes were enabling legislation to permit the action taken. However, we agree with the holding of the majority opinion of the Court of Appeals, wherein Judge Levin stated, supra 326-327:
"We are persuaded that the legislature did not intend when it adopted the zoning enabling act in 1921 and the pertinent provision in the home rule act in 1929 to confer upon cities the authority to require that land be set aside for roads and streets. Zoning regulation of the area of 'yards, courts and other open spaces’ is, as the home rule act expressly provides, largely intended to provide for adequate light and ventilation between structures. It also serves traffic safety, fire protection and aesthetic interests. Zoning is justified under the police power, but, except in extraordinary circumstances, not present in this case, private property cannot be appropriated without compensation under the police power.
"The conceptual difference between requiring a yard setback for light and air (which the State need not pay for) and requiring that land be set aside for a public use (which, before it can be put to that use, the State must pay for) may not be readily explicable. It is, nevertheless, perfectly clear that there is a difference, a constitutional difference, between telling a property owner that he must provide space between his building and that of his neighbor and telling him to set aside land for possible future condemnation.
"Just as the taking of property without payment cannot, except in extraordinary circumstances, be justified as an exercise of the police power, so too the State may not, in the name of the police power, require a property owner to refrain indefinitely and without payment from using and enjoying his property. The Michigan legislature did not, when it adopted zoning enabling legislation, ignore this constitutional limitation; it did not authorize local units of government to use the police power to require the reservation of property that a public authority might some day wish to condemn.”
Thus, there was no enabling legislation which permitted the City of Warren to enact the zoning ordinance upon which it relied. Moreover, we believe that section 4.36 of the Warren zoning ordinance is unconstitutional on its face. This section provides:
"4.36 Building Setbacks on Major Streets and Highways
"(a) No building or structure shall be erected or constructed within the area set down by the city’s master thoroughfare plan.
"(b) All setbacks, where required, shall be measured from the proposed right-of-way established by the city’s master thoroughfare plan.”
We agree with the Court of Appeals that this ordinance contains none of the safeguards which could sustain its constitutionality. The city’s master thoroughfare plan was adopted without notice to plaintiffs. The ordinance contains no time limit for resolution of the question of whether the land will ever be condemned. The ordinance, in effect, requires the dedication by plaintiffs of a large portion of their property for public purposes without any provision for compensation, and, if a condemnation authority does eventually condemn the land, it could very well be considerably depreciated from its present worth. For each of these reasons, we hold the zoning ordinance unconstitutional.
The Court of Appeals is affirmed. Costs to plaintiffs.
T. M. Kavanagh, C. J., and Black, Adams, T. E. Brennan, T. G. Kavanagh, and Williams, JJ., concurred with Swainson, J.
The Court of Appeals summarized the manner in which the mistake occurred as follows (29 Mich App 309, 319 [fn 11]):
"The testimony and exhibits introduced into evidence tend to show how the mistake occurred. As originally established, the center line of Mound Road (then 66 feet wide) coincided with the east line of Section 5. When Mound Road was widened to its present 204 feet the entire additional 138 feet was taken from the west side of Mound Road, not 69 feet from each side; thus the center line of old Mound Road was moved westerly 69 feet to its present location. Accordingly, while the east section line is 171 feet from the west line of Mound Road (the east property line) the present center line of Mound Road is only 102 feet east of the east property line. The planning consultant engaged by the plaintiffs was unaware that the entire additional 138 feet required for,that widening of Mound Road was taken from the west side of Mound Road; he mistakenly assumed that 69 feet was taken from each side and on that assumption drew the site plan showing that the center line of Mound Road remained where it was originally located, i.e., coincident with the east line of Section 5.” | [
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Starr, J.
On February 11, 1939, plaintiff owned a six-room house on Marquette avenue near the Muskegon city limits, which was rented to and occupied by Herbert Curtis and wife. On that date the house and contents were destroyed by fire, alleged to have been caused by the explosion of a kerosene stove which the tenants had purchased from defendant’s store in Muskegon. Plaintiff sued to recover the value of the house, alleging in substance that defendant was negligent in failing properly to inspect and repair said stove, which had twice been returned to its store for repairs; and that such negligence was the proximate cause of the explosion which resulted in the destruction of her house. The trial court reserved decision on defendant’s motion for a directed verdict and submitted the case to the jury, which returned a verdict of $1,720 on which judgment for plaintiff was entered. Defendant’s motion for judgment non obstante veredicto or, in the alternative, for a new trial was denied, and it appeals.
The testimony relative to the purchase, faulty operation, repair, and explosion of the stove is substantially the same as was considered in the case of Curtis v. Sears, Roebuck & Co., 298 Mich. 539, in which the tenants sued to recover the value of the contents of the house. In that case we held, in effect, that the conflicting testimony regarding the cause of the explosion presented a question of fact for jury determination as to whether or not defendant was negligent in failing to inspect and repair the stove properly. We affirmed a judgment of $938 entered on jury verdict for plaintiffs. Our opinion in the Curtis Case, which, fully sets forth the facts, should be read- in preface to this opinion.
In the present case defendant denies liability on the ground that it had no contractual relations with plaintiff; that a kerosene stove is not, per se, a dangerous instrumentality; and that, in the absence of proof that it had knowledge of defects in the stove, plaintiff cannot recover. In support "of its denial of liability, defendant cites Camden Fire Insurance Co. v. Peterman, 278 Mich. 615; Pickens v. Crowley-Milner & Co., 258 Mich. 102; Pesavento v. E. I. Dupont de Nemours & Co., 240 Mich. 434; O’Neill v. James, 138 Mich. 567 (68 L. R. A. 342, 5 Ann. Cas. 177, 110 Am. St. Rep. 321, 17 Am. Neg. Rep. 561); Borg-Warner Corporation (Norge Division) v. Heine (C. C. A.), 128 Fed. (2d) 657. (See, also, Macres v. Coca-Cola Bottling Co., Inc., 290 Mich. 567.) However, such cases involved only the question of liability of a manufacturer or seller, because of inherent defects in, or imminently dangerous nature of, the article sold. They did not involve, as in the present case, the question of the seller’s liability for alleged negligence in subse-' quently failing properly to inspect and repair defects' in the article sold. Therefore, such authorities are not determinative of the question now before us.
Defendant assumed the obligation of inspecting and repairing the stove which it had sold to plaintiff’s tenants. If it was negligent in making such inspection and repair, then it would be liable for the resulting damages, not only to the tenants who purchased the stove, but also to other persons subjected to the danger created by its negligence. In other words, if, because of its negligence, defendant was liable to Curtis and wife as tbe purchasers of the stove, it would also be liable to plaintiff as the -owner of the house in which the stove was operated. It cannot escape liability to plaintiff for its negligence on the ground that it had no contractual relation with her.
In the Curtis Case the question of defendant’s alleged negligence in .inspecting and repairing the stove was submitted to the jury, whose verdict for the plaintiffs was, in effect, a finding that defendant was negligent. We held that the verdict of the jury was supported by the testimony and affirmed the judgment entered thereon. In the present case, substantially tlie same testimony as was adduced in the Curtis Case likewise presents a question of fact for jury determination as to the cause of the explosion and as to whether or not defendant was negligent in inspecting and repairing the stove. See authorities cited in Curtis v. Sears, Roebuck & Co., supra. There was testimony supporting the jury’s verdict, which we conclude was not against the great weight of the evidence.
We find no merit in defendant’s further contention that the trial court committed prejudicial error in his questioning of witnesses or in his remarks and conduct of the trial. The trial court did not err in refusing to strike the testimony of plaintiff’s witness Andrews as to the value of the house in question, or in overruling defendant’s objections to hypothetical questions propounded to plaintiff’s expert witness Kibbe.
Defendant also contends that the jury’s award of damages was excessive. The six-room house with attached shed was completely destroyed. The testimony indicates that it was an old house which, plaintiff stated, she had remodeled in 1927 at a cost of about $1,500. It was plastered, papered, and wired for electricity, but without running water or inside toilet facilities. Tenants Curtis and wife, who had occupied the house for about eight years, were paying a rental of $10 a month at the time of the fire. It also appears that they made some repairs about the house at their own expense, which was considered in fixing the amount of rent. A witness, engaged in the real-estate business in Muskegon, who was called by plaintiff, placed a valuation of $1,800. on the house. A witness called by defendant valued it at $900, but based such valuation on the rental of $10 a month without taking into consideration the fact that the tenants made some repairs, which he admitted would increase his valuation. It was agreed between the parties in open court that if the jury found for plaintiff, they should be instructed to “determine the fair market value of the property and allow interest thereon at five per cent, from February 11, 1939, to the present time” (March, 1943). The jury returned a verdict of $1,720, which indicates that they placed a valuation of about $1,425 on the house. Such valuation was well within the range of the testimony, and we are not disposed to interfere with the jury’s determination.
The trial court did not err in denying defendant’s motions for directed verdict and for a new trial. Other errors assigned do not merit consideration. The judgment for plaintiff is affirmed, with costs.
North, C. J., and • Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Butzel, J.
Josephine Solomon of Monroe, Michigan, testatrix, died March 27, 1950, at the age of 70 or thereabouts. In her will executed on August 15, 1949, she left her daughters Mary Badalamenti and Anna Migliore, contestants, only a nominal bequest of $5 each. She left 2 parcels of property to ’the’ local Catholic church; a life estate in 6 houses and lots to her son Jacob with remainder to the Infantile Paralysis Foundation; a life estate in 4 houses, stores and lots, with a frame building at the • rear of one location, to her son Leo with remainder to the cardinal of the archdiocese of Michigan, for secular purposes. She left a house and lot with the furniture and personal effects of her home to a granddaughter.
Upon the will being presented for probate by testatrix’s son Leo, the daughter Mary filed objections claiming mental incompetency of testatrix both before and after and at the time of the execution of the will. No claim of undue influence was made. The contest was certified to the circuit court for the county of Monroe where it was heard by the judge without a jury. He made no direct finding as to general incompetency but in disallowing the will he based his opinion upon the ground that during the 6 months preceding August 15,1949, the date of the will, testátrix had insane delusions in regard to the daughters, whom she practically disinherited. Proponent has •appealed.
Testatrix came to this country from Italy at the age of 14 and, after living in Louisiana for a number of years, moved to Monroe, Michigan, with her husband, the father of the 4 children. He died in 1920. By dint of industry, economy and ability, testatrix amassed considerablé real estate. Eor a long period she ran a grocery store. She looked after her home and managed her various properties, acquiring one after another. Her estate was inventoried at about $50,000. Her son Jacob lives in Texas, the other 3 children in Monroe, Michigan. Leo seems to have been close to her as he assisted with the handling df the property, did some painting, minor repairs, et cetera. Por a short time he helped run the grocery '•store and in 1936 testatrix gave him the grocery husiness, which he ran for a while and later sold, realizing the net sum of $300 from the proceeds of the grocery stock. He did a few odd jobs for others but apparently lived partly on what his mother paid or gave him. The testimony does not indicate the degree of intimacy and affection between the mother and daughters prior to the time when she became sick. It is quite significant, however, that James Kelley, Sr., attorney for testatrix for many years and who drafted the will in question, testified that at the time it was drawn:
“I did call her attention to the fact that she was leaving practically nothing to the girls and nothing to Jake although when I made a will for her before there was a similarity.”
In February, 1949, testatrix became afflicted with a dangerous skin disease, later found to be pemphigus vulgaris, which is characterized by numerous large suppurating blisters of the skin and mucous membranes, a sapping of the blood, itching, intense discomfort and pain. The disease usually is fatal although there may be a period of remission as there was in the present case. At this time, testatrix was also suffering from obesity, high blood pressure, and hardening of the arteries. On February 17, 1949, accompanied by 1 of her daughters, testatrix consulted Dr. James, a dermatologist in Toledo, Ohio, who tentatively diagnosed her plight as pemphigus. He testified for contestant, stating that he could not understand testatrix’s incoherent statements, even making allowance for her English interspersed with Italian, that she did not have the mental capacity to make a will, that she would neither know what property she possessed, consider and know the natural objects of her bounty, nor understand the disposition thereof she was making in her will. The testimony of what occurred in August completely shows that Dr. James was mistaken in his diagnosis of testatrix’s mental capacity during a period of. remission, for he stated that the disease becomes progressively worse and the patient does not recover his or her mental faculties. He did not see her from February 17, 1949, to February 20, 1950, when she again visited him. Testatrix was dissatisfied with the prescription Dr. James gave her on her first visit, and threatened to sue him; it was only with the utmost difficulty that her family dissuaded her from her purpose.
Following her first visit to Toledo on February 17,1949, testatrix went to the Monroe Hospital where the 2 daughters visited her regularly. She constantly complained of the hospital treatment and quarreled violently with one nurse. After consultation by the doctors and at her own request she was transferred by ambulance to the University Hospital at Ann Arbor, Michigan, where Dr. Curtis, the head of the dermatology • department, looked after her. She was an extremely difficult patient. Although it was against the precepts of her religion, she asked to be killed. She was in pain, exceedingly unhappy away from home, intractable, uncooperative, and extremely disoriented, although Dr. Curtis could not recall any delusions indicated by her conversation with him. He stated that her physical ailments could ■result in mental disturbances as she did have sueh and could easily develop various types of delusions, hallucinations or fixations, and that most fixations of this type are directed against intimate friends, relatives, attorneys, et cetera, and from what he knew March 17,1949, he felt there was little possibility of her being competent to make an unbaised will the following August. He did state, however, that he did not ever see her again after March 17, 1949, some 5 months before she made her will. One of the daughters testified that when she went to the University Hospital testatrix stated that the hospital staff were trying to kill her and that they were neglecting her. She complained that she had not seen her son Leo. She refused injections and bandages, was belligerent and extremely uncooperative. The daughters had her transferred from a ward to a private room. It was finally arranged to have her returned' on March 17, 1949, to the Monroe Hospital where Dr. Pinkus, a specialist in dermatology, recommended by Dr. Curtis, took charge of her in conjunction with a general practitioner.
Upon her return to the Monroe Hospital she for some time continued similar accusations against the hospital personnel, told her daughter there were “cops” in her room, that people were trying to hit her on the head with a stick, that she was drowning, and that she wanted to use a nonexistent gun in her purse. ’ At one time Dr. Pinkus discussed the possibility of consulting an Italian-speaking psychiatrist with the children. On April 18, 1949, she sent for Mr. Kelley, her attorney, to make arrangements to have money withdrawn from her safety deposit box and placed in her checking account while she was ill in bed. .Kelley suggested that the 2 daughters accompany him as witnesses but at first testatrix objected, saying that her daughters did not care for her anyhow and she did not want them to have anything to do with it. She said that she wanted someone to handle her business because she could not trust her children. She accused her daughters of stealing money from her. It appears that Mary during her mother’s illness had been handling certain of her mother’s finances, using cash found in her possession, withdrawing money from her savings account on signature of testatrix, and at one time, taking money from the safe with permission of testatrix.. At one time upon returning from the bank, testatrix accused Mary in front of her sister and brother of always trying to get money from her and that she owed her $300 which she had never returned, that Mary had a private nurse give her an injection so as to make her sign a note to obtain money from a savings bank. Testatrix told Leo that she had told the sisters to hold the $300 and later when she asked for it they refused to return it. Aft er these accusations Mary completely stopped handling the affairs of testatrix, although she continued to visit her until she left the Monroe Hospital. Anna thereupon took over the handling of affairs of testatrix until she left the hospital and. resumed management of her own affairs. No direct accusations were made by testatrix against Anna, although during the summer months she repeated to Leo that the daughters had stolen $300 from her. Evidently testatrix felt that Mary was primarily responsible but that Anna was also involved. When Leo informed Anna of the accusations in the latter-part, of July, 1949, Anna stopped any attempt to help .her mother.
Testatrix returned to her home the latter part of May, 1949, and resumed a normal life from that time until the early part of 1950. Dr. Pinkus visited her on June 17,1949, and found her'in a good mental condition. Neighbors and women she had in to do her work testified that she was handling her property with her old competence. There is some testimony that she was dissatisfied with her help, alleging that they stole soap and perfume from her, and that- she was depressed and in poor spirits most of the time but there is no indication that this impaired hér faculties. Significantly, the lady- who lived above testatrix’s apartment testified that Leo was the one often called when testatrix was ill at night and unable to move around during this period. On September 19, 1949, Dr. Pinkus again visited her and found that a few blisters were reappearing at that time. However, from his limited conversation he felt that her mental condition was still good. Dr. Pinkus stated that although pemphigus eventually is a fatal disease, there may be periods of remission, when blisters dry up and the patient lives a perfectly normal life until the next attack, that from his observation the patient was going through this period of remission. Drs. Curtis and James did not see the decedent at the time Dr. Pinkus did. It is quite significant that she- was able to leave the hospital, return home and tend to her own affairs and did not have occasion to call on Dr. Pinkus again until after the middle of September, 1949. Prom his testimony, we are inclined to give much credibility to his conclusions. It is true that he stated he had attended only 20 cases of pemphigus during his medical career, but it is shown that it is a rare disease, although its characteristics are well known.
On August 15,1949, during the period of remission and over 2 months after testatrix left the hospital, she went to Mr. Kelley’s office to have a new will drawn. Mr.- Kelley had been her attorney for over 20 years, had performed legal services for her at various times including some also after the will was drawn. She had previously spoken to him about making a new will. He was familiar in general with her affairs; she gave him all the data in regard to the provisions of the proposed will and they were carefully discussed. Testatrix stated that she did not want to leave her daughters anything but at Mr. Kelley’s suggestion she left them nominal bequests. Mr. Kelley testified that the mental condition of testatrix was very good; she knew exactly what she wanted; she stated that she did not want to leave her daughters anything because they had stolen money from her and had lied to her, and also because she had already given them considerable money. The will states that the sole reason for leaving them only the nominal bequest was that she “had already given them considerable money.” After the will was dictated and transcribed Mr. Kelley called in his secretary and in her presence carefully read the will to testatrix before she executed it. Mr. Kelley testified that testatrix discussed the details of the will and that she had an excellent memory, even knowing the street, numbers of the many houses she owned with out the use of memoranda, which she later consulted to make sure that she was correct.
After testatrix suffered a recurrence of the disease in February, 1950, she again visited Dr. James. He then found her physically and mentally in a very bad condition. She was almost completely irrational. Significantly, she at first put her 2 girls out of her room, but later allowed them to come and see her. They had not visited testatrix since the dispute of the summer before. Anna stated that this was because Leo said that their mother wanted to kill them, or have them arrested because of the alleged theft. There is some testimony also that Leo had told Mary that their mother -was satisfied about the $300. She died in Mercy Hospital in Toledo on March 27,1950.
Although the trial court did not pass on the issue of general mental incompetence, contestants argued that testatrix’s general state of mind was such that she was incapable of making a will. A careful examination of the record shows that such conclusion is not warranted about her condition during the period of remission. Upon her return from the hospital in May or June, 1949, she resumed a normal life, ham-died all of her business affairs, collected her rentals, ran her household without the assistance of her children, despite somewhat understandable fits of depression due to her weakened physical condition. No substantial evidence was adduced to rebut the presumption that at the time of making the will she was in full possession of her mental faculties.
During the direct examination of Mary Badalarnenti she was asked by her counsel the leading question of whether her mother had accused her of stealing $3,000 at one time. She replied in the affirmative and stated that her sister and brother and sister-in-law were present. When the other contestant was examined and was asked about being present she made no reference to the amount at issue. The amount claimed was $300 as' shown by all the other testimony even if Mary named the first sum as $3,000 in response to a leading question. Testatrix undoubtedly was convinced that her daughters had stolen or withheld some money from her during the time they handled her affairs while she was in the hospital. Her daughters categorically deny the charge and proponent has no witness or any kind of proof to sustain it. However, the record does indicate a number of transactions involving withdrawals from the savings account, from the safe, and cash moneys. Even with the figures that were brought out at the trial we cannot determine whether $300 was or was not missing. It would take an accounting.
Wide latitude was given by the judge in the taking of the testimony and that of the 2 contestants was received without objection. We have frequently commented on the unsatisfactory nature of. testimony of this character. The lips of testatrix are sealed by death so that there is no way of -knowing on what she based her conclusion that $300 was missing and that her daughters had taken it. Without testatrix’s testimony it was not proven that $300 was taken or was missing but there appear sufficient circumstances so as to show that any such belief of testatrix was not an insane delusion. Testatrix in this regard might have possessed mistaken beliefs but we do not believe they were insane delusions in view of the confused state of her finances during the time she was in the hospital. Again, the claim that testatrix had already given contestants considerable money is denied by them. There was no other proof. Without testatrix’s testimony there was no way of rebutting the testimony of contestants given after the death of'testatrix. It is quite significant that contestants gave no testimony as to the prior relationship between themselves and testatrix, although it was shown that they lived in the same city for many years and were on speaking terms. We'have heretofore called attention to the-fact that testatrix had previously made a will which her attorney said was a “similarity” to the new -will. From the very beginning of her illness, testatrix at various times indicated a distrust of her daughters. In view of the distrust, it is not surprising that she drew the conclusion she did.
We have examined the number of decisions cited to us concerning the instant problem. Many, by reason of their facts, are not controlling here. There are, however, certain tests laid down by the decisions which will aid us in reaching a correct result.
We said in Re Raven’s Estate, 279 Mich 334 (quoting syllabus 2):
“An insane delusion exists when a person persistently believes supposed facts which have no real existence, and so believes such supposed facts against all evidence and probabilities and without any foundation or reason for the belief, and conducts himself as if such facts actually existed.”
What will be considered sufficient foundation or reason for a mistaken belief? In Re Haslick’s Estate, 195 Mich 432 (Ann Cas 1918D, 466), we said. on p 438:
“In considering this question it is to be borne in mind that no capricious or arbitrary dislikes, unjust suspicions or prejudice against relatives, or mistaken beliefs as to their feelings and designs towards him and his property, however visionary, nor belief of acts or facts which have any evidential basis constitute in law insane delusions,”
and cited with approval 1 Underhill on Wills, § 94 (at p 439) :
“If there are any facts, however little evidential force they may possess, upon which the testator may in reason have based his belief, it will not be an in sane delusion, though on a consideration of the facte1 themselves his belief may seem illogical and foundationless to the court; for a will, it is obvious, is .not to be overturned merely because the testator has' ,not reasoned correctly.”- (Italics ours.)
That such facts exist in the instant case cannot' be. denied.
The lack of information as to the past relations between the contestants and the testator has been a subject of notice by the courts. In Bean v. Bean, 144 Mich 599, we said (pp 625, 626):
“I do not understand how it can be determined that the opinion of a father that a son has no regard for him, and is waiting for him to die in order to get a portion of his estate, can be said to have no foundation in fact, and to be the result of insane delusion, except it may be, in cases where relations, induced ,-by a lifetime of dutiful conduct on the one side and of continued and known affection on the other, are suddenly and without known cause interrupted and succeeded by an attitude on the part of the father ■utterly inconsistent with past conduct.”
A review of our numerous past decisions on insane delusions clearly indicates that there must be a great deal of proof that the suspicions or belief of a testator are completely unfounded before they can be held to be an insane delusion. Indeed in the confused financial situation of the testatrix herein, we 'find some justification for a belief, even though mistaken, and not present in many of the former problems before us. See, for example, Leffingwell v. Bettinghouse, 151 Mich 513; In re Doty’s Estate, 212 Mich 346; In re Barlum’s Estate, 240 Mich 393; In re Shuler’s Estate, 242 Mich 576; In re Lacroix’s Estate, 265 Mich 59; and In re Ball’s Estate, 298 Mich 303, cases where a testator’s will was sustained, 'against a claim of insane delusions.
In Jackson City Bank & Trust Co. v. Townley, 268 Mich 340, it was alleged that the testatrix disinherited her son because she believed her daughter-in-law was immoral and the latter’s mother ran a house of ill fame. Although those were accusations not lightly made, we held at pp 346, 347: .
“Contestant had the burden of proving that testatrix believed her statements, she had no reasonable information or evidence supporting them, and¡ but-for such belief, she would not have disinherited him.” (Italics ours.)
The last 2 tests were not met by contestants herein. The will should have been allowed.
Judgment is reversed, with costs to proponent, and the case is remanded to the circuit court to enter judgment sustaining the will and remanding it to the probate court for further proceedings.
North, C. J., and Dethmers, Carr, Bushnell, Sharpe, Boyles, and Beid, JJ., concurred. | [
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Reid, J.
Defendant filed May 11, 1950, in circuit court, in chancery, a petition to modify a decree of divorce granted plaintiff April 24, 1948, and defendant prayed for an award of the custody of 3 young children of the parties to defendant husband instead -pf-.the.award in the decree of divorce to the plaintiff wife. From an order denying him the custody, and dismissing his petition for such modification of the divorce decree, defendant appeals.
The 3 children of the parties are Nancy Ellen, born 'in 1942, George Thomas, born in 1943, and Patrick, born in 1945.
On tbe hearing of the petition, June 2, 1950, it developed that the real ground of the petition was a ■charge that plaintiff wife had been guilty of personal misconduct demonstrating her unfitness to be custodian of her children. She married, March 18, 1950, Charles Beckholt, the father of her fourth child, Stephen, born March 20, 1950. The implied misconduct and plaintiff’s relations with Beckholt, her present husband, prior to their marriage and beginning 2 months before a divorce granted Beckkolt’s first wife, constitute the entire ground for defendant’s petition to deprive plaintiff of the custody of the children of the parties to this case. Defendant claims that the 3 children are embarrassed by their consciousness of the fact of the fourth child’s having been begotten out of wedlock (though born in wedlock) , he being constantly associated with them in the-same household, and consciousness of a disgrace and reproach to their family in the community, resulting from the fact of Stephen’s birth and circumstances preceding his birth.
Upon being examined by the court, plaintiff wife testified as follows:
' “The home I am now living in with Mr. Beckholt, is the home where I lived prior to my divorce from Mr. Kruer, the same home. I have plans to continue.’ to live in that home as husband and wife. As to my expectations to remain in Hart permanently, I wquld have to go wherever my husband’s job would take him; So far as the present is concerned, I have ho plans except to stay where I am now living, I don’t know of any place else right now. Yes, I have stated that Mr. Beckholt is agreeable to having my 3 children remain there with me in my home. As to .my own personal feeling about the mistake I have made, I am very sorry about it, and I certainly don’t want to lose my children. I love them. I realize that the question that is before the court is whether I am a fit and proper person to continue to have the custody of those children. I understand that is the question, and that question has been asked by virtue of the fact that I had had improper relations with the man to whom I am now married before I was married to Mm. Yes, I understand that. Yes, I realize that was a mistake: That was contrary to and in conflict with all the good moral teachings and religious teachings I had had in my own home, that is right. There is nothing about my environment as a child or during the time I have lived in Hart that would encourage me in that sort of thing. I can’t help the past now.
“The Court: The future is entirely in your hands. Is there any danger, if these, children are permitted to stay with you, of any repetition of such immoral acts on your part ?
“A. There certainly won’t be because I want to keep my children.
“Q. Or any other conduct unbecoming a Christian mother ?
“A. No, sir; I would do anything to keep my chil-. dren.
“Q. Ho you assure me, if these children are allowed to remain with you, that you will do everything within your power to bring them up properly?
“A: I can assure ydu I hope they grow up to be a credit to the whole community and that I can be proud of them.”
The testimony showed that aside from the matters with Mr. Beckholt prior to her marriage to him, plaintiff has been an excellent mother, and. has cared for her children; they receive consistent .Christian training, and make good educational progress. Plaintiff is ;skown to- be'a-good housekeeper and gives her children good physical and moral attention. She assured the court of the propriety of her future conduct and of her proper bringing up of her children aiid of her love for them.
Witnesses of excellent standing as good citizens of the city of Hart, where plaintiff and her family live, gave testimony that would show that plaintiff, notwithstanding her error, is well regarded in the community, and to the excellence of her care for her children.
"The court continued the hearing until June 2,1951, at which time the hearing was resumed, and testimony was given as to the happy home the children have with plaintiff, the good care that she gives them, and repeating in general, the good showing on plaintiff’s behalf.
During the year’s interval, defendant remarried and his present wife was a witness on behalf of defendant. She testified to the good and devoted care that she would give the children if their custody was given to defendant. The trial court indicated that if the children had been without a good and suitable home, it would be natural and logical to give the children to defendant.
The children have been with their mother from birth, and to take them from her now would be a very grave disturbance of their happy home life.
For a recent case involving a mother who has ¡committed indiscretions, see Cooley v. Cooley, 329 Mich 91. "When the case of Smilgus v. Smilgus was first before this Court, we reversed the order of the trial court giving a mother the custody of her daughter and gave the custody to a worthy father, where the mother had committed misconduct with one Losey: See Smilgus v. Smilgus, 323 Mich 149; but later the mother satisfied the trial court of her reformation and suitability for the custody, and we affirmed the later award by the trial court of the custody of the daughter to the mother: See Smilgus v. Smilgus, 328 Mich 19.
Plaintiffs remarriage and consistent and-proper home life following the remarriage, point to the propriety of the court’s order leaving the custody of the children with her, in view of the entire testimony of the excellent care she gives them and her promise of proper future conduct.
The order appealed from denied defendant’s petition to award the custody of the children to him, but without prejudice to his right to renew the petition in the event that future facts and conditions warrant his so doing, which order we affirm. No costs are asked for and none are awarded.
Dethmers, Butzel, Carr, Bitshnell, Sharpe, and Boyles, JJ., concurred.
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Sharpe, J.
On March 24, 1942, Samuel Senica Watts sustained an accidental injury, arising out of and in the course of his employment with defendant General Motors Corporation, Fisher Body Detroit Division, which resulted in death on March 30,1942.
Two “wives,” Winifred Watts of Detroit and Mabel Euth Watts Jones of Memphis, Tennessee, filed claims, each alleging to be the widow of the deceased. The department of labor and industry granted an award to Winifred Watts of Detroit, Michigan. Mabel Euth Watts Jones and defendant company appeal.
The record indicates that deceased and Mabel Euth lived together in Mississippi, Kentucky, Missouri, Alabama, and Tennessee from 1917 to 1923 when the deceased left her and later came to Detroit ; and that about 18 months after the separation, Mabel Euth, believing Watts to be dead, married her present husband, Mr. Jones.
During the month of June, 1930, deceased and Winifred began living together as husband and wife. At this time Winifred was married to one Samuel J. Morris. After Samuel J. Morris secured a divorce from Winifred and in 1933, Winifred and deceased again entered into a so-called common-law marriage. They lived together until the death of Mr. Watts.
It is the claim of Winifred Watts that she is the widow and dependent of deceased; that in 1933 she entered into a common-law marriage with Samuel Senica Watts; and that at the time she entered into the common-law marriage, she was eligible to enter into such a marriage and the presumption is that Mr. Watts was also eligible to enter into such a marriage.
It is the claim of Mabel Ruth Watts Jones that she entered into a ceremonial marriage with Mr. Watts in 1917 from which two children were born, one of whom is now living; that deceased left her in 1923 and about 18 months thereafter she married Mr. Jones; that she has sustained the burden of proof in showing her marriage to Mr. Watts; and that the facts show a common-law marriage to exist from 1917 to 1923.
Defendant General Motors .Corporation urges that Mabel Ruth Watts Jones was the legal wife of decedent, but denies that she is a dependent within the meaning of 2 Comp. Laws 1929, § 8422 (Stat. Ann. § 17.156), the workmen’s compensation law.
The department of labor and industry found:
“That the testimony of the claimant, Mabel Ruth Watts Jones, was not sufficient to justify a finding that she was the wife of the deceased, Samuel Senica Watts, and that her testimony in this regard was insufficient inasmuch as she claimed a ceremonial marriage and the best-evidence rule should prevail and a public record of said ceremony should be presented in evidence. * * *
“The record substantially proves a common-law marriage between claimant, Winifred Watts, and the said deceased and we so find that she is the widow of said deceased, Samuel Senica Watts, and entitled to compensation at the rate of $18 per week for total dependency for a period not to exceed 300 weeks from the date of the accident on March 24, 1942.”
Claimant Mabel Ruth Watts Jones and defendant company each have filed separate appeals.
The common-law marriage of Winifred to Samuel Senica Watts in 1933 depends upon the legal capacity of each of the contracting parties. The record clearly shows that Winifred was eligible to enter into such a marriage; and the record also shows that deceased was married in 1917 to Mabel Ruth. The evidence is conclusive that Mabel Ruth and Watts entered into what might be termed a common-law marriage, lived together for a period of about six years and were the parents of two children.
In Howard v. Kelly, 111 Miss. 285 (71 South. 391, Ann. Cas. 1918 E, 1230), quoted with approval in May v. Meade, 236 Mich. 109, in speaking of a common-law marriage, the court said:
“We are persuaded that every presumption should then be indulged in favor of the legality of a union thus shown in the same way and to the same extent as the law indulges in favor of a ceremonial marriage.”
In Killackey v. Killackey (syllabus), 156 Mich. 127, we held:
“In the absence of any evidence as to the date of a prior marriage, or as to the relation of the parties since such marriage, or as to the continuance or termination of such relations, the presumption of legality which attaches to a second marriage is held not to have been impeached.”
See, also, May v. Meade, supra.
The “presumption of legality which attaches to a second marriage” as stated in the Killackey Case, supra, arises because the law presumes morality and not immorality, and every intendment is in favor of matrimony. But, as was said in Colored Knights of Pythias v. Tucker, 92 Miss. 501 (46 South. 51):
“It is universal law that the presumption in favor of the validity of a formal marriage is one of the strongest known to the law, because of its sacredness and public importance; * * * it is but a presumption of law, not conclusive, and therefore capable of being overcome by such testimony as satisfies the mind of the jury that there is no valid marriage. ’ ’
In our opinion the evidence clearly establishes the common-law marriage of Mabel Ruth and deceased in 1917. The presumption of the legality of the second marriage is overcome by competent proof. It follows that the alleged common-law marriage of Winifred and deceased in 1933 was void as being contrary to 3 Comp. Laws 1929, § 12694 (Stat. Ann. § 25.5).
Whether Mabel Ruth Watts Jones is entitled to an award of compensation is governed by 2 Comp. Laws 1929, §8422 (Stat. Ann. §17.156), which provides :
“The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:
“(a) A wife upon a husband with whom she lives at the time of his death, or from whom, at the time of his death the department of labor and industry shall find the wife was living apart for justifiable cause or because he had deserted her.”
It is apparent that the department of labor and industry did not consider that Mabel Ruth and deceased could have entered into a common-law marriage. It concluded that Mabel Ruth and deceased had not entered into a ceremonial marriage and, therefore, it did not give due consideration to the fact that Mabel Ruth was the widow of Samuel Senica Watts as a result of a common-law marriage. Whether Mabel Ruth is entitled to an award for compensation by virtue of her common-law mar riage to deceased is a fact to be determined by tbe department of labor and industry.
The award is reversed and the cause remanded to the department of labor and industry for a determination of this fact. Plaintiff Mabel Buth Watts Jones and defendant General Motors Corporation may have costs as against Winifred Watts.
Starr, Butzel, Bushnell, Boyles, and Beid, JJ., concurred with Sharpe, J. Wiest, J., concurred in the result. | [
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North, C. J.
On trial before the court without a jury, plaintiff had judgment against defendant, the suit being based on a $1,000 note given by defendant to plaintiff. Defendant has appealed. In the main, the defense urged is that there was “conditional delivery” of the note, and since the condition has not been fulfilled defendant is not liable on the note.
In 1938 defendant entered plaintiff’s employ as a salesman for certain of plaintiff’s products. During that year defendant became indebted to plaintiff for $1,000 borrowed from plaintiff. In 1939 defendant entered into a new contract of employment with plaintiff. On July 5, 1939, plaintiff’s treasurer, Milton E. Stover, wrote defendant a letter in confirmation of the terms of the 1939 contract. It contained the following paragraph:
“By accepting this letter, you acknowledge your indebtedness to the company in the amount of $1,000, which was advanced to you in 1938. This $1,000 is to be deducted from commissions when, as and if your total earnings amount to over $8,000. In other words, on amounts that may become due over $8,000.”
Defendant’s earnings - in 1939 did not exceed $8,000 and his indebtedness to plaintiff continued in the amount hereinbefore noted. Again in 1940 a contract of employment was entered into between the parties. On April 2, 1940, a letter written by R. B. Evans, plaintiff’s vice-president, to defendant intimated the writer had been advised that defendant had taken the position he would never repay to plaintiff the $1,000 loan. In this letter the vice-■president stated:
“I have been severely criticised on account of this '(making the loan to defendant) and must take the stand that the note (evidently enclosed in the letter) must be signed or we will have to ask for your resignation. That’s pretty strong, but so is your refusal (to repay the indebtedness).”
On April 4th defendant wrote a letter in reply in which he inclosed the executed note. In explanation of his attitude in part he said:
“Later (sometime after February, 1939) in your office you asked me to agree to have this amount deducted from all earnings for 1939 in excess of-$8,000. On July 5, 1939', Mr. Stover (treasurer of plaintiff company) dictated a letter of agreement stating this condition. It was my understanding then that if the earnings for 1939 did not exceed $8,000 that the indebtedness would be wiped out in view of my losses in 1938-.”
The above clearly refers to the portion of the letter of July 5, 1939, first above quoted; and the quoted portion of the July 5th letter is all that there was in the letter in reference to defendant’s $1,000 indebtedness. Defendant, as a witness in his own behalf, produced, and there was received in evidence over plaintiff’s objection, a carbon copy of a memorandum (exhibit 5) reading as follows:
“April 4,1940.
“The attached note is signed with the understanding that payment is to be made in the same manner and under the same conditions as outlined by M. E. Stover in his letter -written on July 5,1939.
(Signed) R. S. Beale.”
Concerning this memorandum and defendant’s letter of the same date, and also his note inclosed with the letter, defendant testified:
“The note that I signed was attached to the original of this carbon copy and clipped with the letter altogether with an ordinary paper clip and inclosed in an envelope and addressed, and was mailed to Mr. Robert Evans.”
As against the foregoing testimony Mr. Stover, plaintiff’s treasurer and comptroller, testified:
“It (the note in suit) came to my desk in the usual course of business in the Evans Products Company. At the time that note came to my desk there was not to my recollection any attachment to it. In the usual course of business, anything that came along with it would be attached. I don’t recall seeing exhibit 5 before. I did not see that document attached to the note which is exhibit 11/ I don’t recollect ever seeing the original of exhibit 5.”
Defendant’s services with plaintiff were terminated October 1, 1940. At no time during defendant’s employment did his earnings exceed $8,000 per year. As above noted, for that reason, and claiming that the note to plaintiff was conditionally delivered, defendant asserts nonliability. On this issue the trial judge said:
“I think a fair construction of this language (above quoted from the letter dated July 5, 1939) must lead to the conclusion that the language pertaining to the earnings of $8,000 merely has to do with the time and method of payment and does not absolve the defendant from his liability. It can be seen from this language that the plaintiff was in a position that at any time in its judgment if the defendant’s commissions should reach the sum of $8,000 or in excess of that sum, that it then could deduct the entire obligation.”
The record convinces us that the holding of the trial judge was correct. Clearly the quoted portion of the July 5th letter was merely an expression of an understanding that in payment of the $1,000 loan plaintiff might deduct any commission in excess of $8,000 earped by defendant in the current year. So far as disclosed by the record, there was no justification for defendant’s assumption: “that if the earnings for 1939 did not exceed $8,000 that the indebtedness would be wiped out.” That such was not his understanding' quite conclusively appears from his having written plaintiff as late as July 19', 1940, as follows: “Why not apply this commission which I figure amounts to $943.68 against the note that you hold signed by me for $1,000.” Further, we do not find that defendant has any ground for complaint because of the fact that the commission of $943.68, just above noted, was applied against other indebtedness due from defendant to plaintiff rather than in part payment of the note in suit.
The judgment entered in the circuit court is affirmed, with costs to appellee.
Starr, Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Reid, J.
This is a bill to enjoin defendant, plaintiff’s tenant, from removing a streetcar body from a lot owned by plaintiff. The structure was used as a lunch room, had been set on loose blocks and had a lean-to attached. Under the lean-to some of the supporting cement blocks had been lowered into the ground to make the lean-to come to the same level with the streetcar body. Plaintiff’s lots are 129 and 130, Loire Lawn subdivision, in the city of Lincoln Park.
In December, 1935, defendant applied to the city for a permit so to locate his streetcar body. The request was granted by the city on condition that he post a bond of $500 to guarantee the removal of the streetcar body at the discretion of the mayor and common council.
In May or June, 1936, pursuant to an oral agreement to rent lot 129 for $18 per month, defendant placed the streetcar body in position for the purpose of conducting a dining car and lunch counter business and caused sewer, water, gas and electrical connections to be made. The place opened for business about July 4, 1936.
Plaintiff, in his brief, says:
“Defendant and appellant was not to pay taxes on the land under the rental agreement.”
The testimony was all to the same effect. Subsequently the buildings of defendant were extended onto adjacent lot 130, also owned by plaintiff, for an additional rental of $12 a month. No assessment was made on the building by the city of Lincoln Park for 1932 to 1937, inclusive, as real property but in the year 1938 the city assessor classified the buildings as real estate and placed an assessment of $100 on the buildings. The city assessor’s testimony indicates that the assessment for 1938 on lot 129 was $1,050 on the land and $100 on the building, making a total of $1,150 on that lot. There was no assessment on the buildings, if any, located on lot 130.
The following is from the testimony of plaintiff:
“All during the time Mr. Hegarty occupied that lot I knew I had to pay the taxes. I was the owner of it and supposed to pay. the taxes. I knew that by law the owner was required to pay the taxes. There was never any question in my mind that Mr. Hegarty should pay them. The $18 a month that, was paid for the use of the property, with the exception of the time that this little additional $12 was paid, was for Mr. Hegarty’s enjoyment of lot 129. He was not to pay anything extra or give me anything extra that I know of. * * * I never talked with Mr. Hegarty about the question of removal. No question of that kind was ever brought up. I didn’t talk to him about the buildings becoming a part of the land there.”
The following is from the testimony of defendant:
“When I rented it, I informed him that this was a lunch car I wanted to put on. I told him it was an experiment, I didn’t know how good it would be and if it didn’t work out I wanted to move it off after. He said all right, as far as I could tell, it was O. K. with him. He never to my knowledge made claim to the ownership of the building. I always, while I occupied this lot, treated those buildings as personal property. The mover put them on there and he put ■ some cedar blocks under it and put six under the car, and the little piece that I built onto it has some cement blocks laying under it, not cemented in any way, just laid under there loose to level it up. These blocks that I speak of are anchored in the ground. They are in the ground I would say around a foot, maybe 18 inches. They were just a little bit too long and instead of cutting them off we set them down a little bit. Then when I went in there I put sewer and water into the building. I would have to do that to use it for dining car purposes. I also tapped the gas main and put gas in. * * When Mr. Smith bought the property back on land contract I again resumed payments to him for the ground rent. I had no conversation with him at that time that I particularly recall. * * * I never was assessed to my knowledge or nobody ever asked me about taxes. I never received a personal tax bill or real estate bill affecting that lot, either 129 or 130. ”
In paragraph 5 of the bill of complaint it is recited “that the relation of landlord and tenant be tween your plaintiff, Alexander M. Smith, and the defendant, William J. Hegarty, continued to exist up to the time of filing this bill of complaint.” The bill was filed April 8, 1941. The hearing before the court concluded on December 22, 1941.
The trial judge made no findings of fact but ordered decree for plaintiff upon the conclusion of the hearing. The decree, filed January 5, 1942, itself contains no finding of any disputed fact in the case and enjoined defendant from the removal of the buildings from lots 129 and 130. Defendant appeals.
After viewing the testimony of both plaintiff and defendant, we conclude that the terms of the tenancy required that plaintiff pay the taxes in question, that, in practical effect, it was understood between the landlord and tenant that it was the landlord’s duty so to do, and it was understood between the landlord and tenant that the tenant was renting the land for the express purpose of putting a streetcar body on the land in order to operate a restaurant and lunch counter business. Plaintiff declined to give defendant a lease so that defendant evidently became a tenant from month to month. It was understood between the parties, as we conclude from the testimony, that defendant had the right of removal."
The act of the assessor in assessing the building as real estate did not make it real estate. The style of the building would suggest its removability. The tenant remained in actual possession all the time the building has been so located. We have, therefore, simply the question of whether the placing of the streetcar body on the land by the tenant who had rented the lot from the owner for that purpose caused the building to become part of the real estate and, in law, not removable by the tenant as his property.
Plaintiff fails to cite any authority for the proposition that such a building placed upon the lot by the tenant would become the property of the owner of the lot without right on the part of the tenant to remove it. Defendant appropriately cites Higginbotham v. Phillips, 192 Mich. 49, 53:
“It cannot be supposed that Parmenter, holding from month to month under a lease resting in parol, intended that the building he erected should become realty. He testified, and if he had not, the inference would be unavoidable, that the building was a chattel and his property.”
See, also, Cameron v. Oakland Cotmty Gas & Oil Co., 277 Mich. 442 (107 A. L. R. 1142).
Plaintiff has not proven by a preponderance of the evidence that he is or has been the owner of the building. It is personal property. Persuasive of this conclusion is the fact that the building is an old streetcar moved onto the property, with an annex built on, to be used as a lunch car, that the defendant merely had an oral lease of the vacant lot from month to month on a monthly rental basis, that the building was not permanently affixed to the real estate, and that the defendant had given a bond to the city authorities before the lunch car was moved onto the vacant lot in 1936, guaranteeing to remove it at the discretion of the mayor and common council.
Plaintiff did not obtain title to any personal property by virtue of the scavenger sale and the record fails to convince that plaintiff is the owner of this personal property. There is no merit in plaintiff’s claim that he acquired ownership of the lunch car by purchase of the real estate from the State under the scavenger sale.
The defendant may have a decree dismissing the bill of complaint, with costs of both courts.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, and Boyles, JJ., concurred.
See Act No. 155, Pub. Acts 1937, as amended (Comp. Laws Supp. 1940, 1943, § 3723-1 et seq., Stat. Ann. 1943 Cum. Supp. § 7.951 et seq.). — Reporter. | [
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Dethmers, J.
This is a stockholders’ derivative suit brought against corporate directors and officers to recover for alleged breach of fiduciary duty in the following respects: (1) Sale of stock of the corpo-
ration at less than market price; (2)-compromise settlement of excessive bonus claims of the corporation’s president and another; (3) payment of excessive salaries to corporate officers; (4) compromise settlement of excessive commission claims of a creditor. From decree for defendants dismissing plaintiffs’ bill of complaint the latter appeal. •
In 1943 defendant corporation, hereinafter called Hayes, was engaged in manufacturing aircraft parts for use by the United States government. A fractional interest in Hayes, to-wit, 100,000 shares of its $2 par value common stock, was owned by 3 persons who were objectionable to the war department because they had violated the Federal neutrality act. The government required their elimination as stockholders-as a condition precedent to granting further contracts which were essential to Hayes’ survival. Attempts to find purchasers for the stock proved fruitless. Finally, on December 21, 1943, in order to satisfy the war department, Hayes, under authorization of its directors, purchased the stock with corporate funds for $200,000. This left its capital structure correspondingly impaired. The directors deemed it essential to successful operations that the stock be resold at once so that the sum used for the purchase might be restored immediately to,Working capital. Not only had all previous efforts to find a market failed, but, likewise, potential underwriters and brokers had been solicited without success, due, in -all probability,to, Hayes’ consistent record of losses in operations and the fact that no dividends had been paid since 1929. On 3 previous occasions, under similarly difficult circumstance's, one A. W: Porter, a Npw-'Yórk dealer in stocks and. .securities, had- underwritten and been surprisingly -successful in marketing Hayes stock when the company had been -ill need of money. Although they had not ascertained his financial strength, defendants had reason to and did repose confidence in his integrity, business; acumen and ability as an underwriter to move such ■ stock and obtain the desired proceeds for Hayes. lie was contacted and an attempt' made to interest him in the stock at $2.50 per share. He was not interested at a price greater than $2 per share. There ■is.no showing that the 100,000 shares could have .been sold at that time for more. Every fair inference- from the record is to the contrary. On December 21, 1943, Hayes sold the 100,000 shares at $2 per share to A. W. Porter Associates, Inc., a corporation controlled by Porter, as underwriter, for distribution to the public. Payment was agreed to be made in stipulated instalments and Hayes retained the stock as security.
On March 16, 1944, the agreement was modified and extended in relation to instalment due dates by a new agreement under which the stock was sold, as of that date, for distribution to the public, to the Porter corporation for $200,000, but retained by Hayes as security for performance of the contract and payment of the purchase-price promissory note due on or before 8 months from date thereof. The latter agreement provided that public distribution of the stock by the underwriter should be begun within 240 days and completed within 300 days in any 1 or more of the following methods, that is: “(a) A public offering, (b) sale thereof upon the New York Stock Exchange, and (c) such other method as shall be approved in writing by Clark (Hayes’ president.) in advance.” Hayes was empowered to cancel if the Porter corporation defaulted in payment of the note or in performance of its obligations under the contract.
The Porter corporation was not licensed as an underwriter, but at the time of the agreement it was contemplated, that it would register as a dealer. Subsequently, as appears from minutes of a meeting of directors of the Porter corporation, the latter was advised by counsel that it was inadvisable for it to secure registration as a dealer and it. was concluded to take out registration in the name of A. W. Porter & Company, a partnership, of which A. W. Porter was a partner (testimony was to the effect that a more favorable income tax status could thus be effectuated). Accordingly, on June 26, 1944, on which date such shares'were bringing-over $4 per share on the market, the underwriting-agreement was assigned by the Porter corporation to the Porter partnership with the written consent of Hayes’ president.
On July 11th. defendants permitted the 100,000 shares to be delivered to a bank as security for a $200,000 loan to the Porter partnership, whereupon the proceeds were paid forthwith to Hayes as purchase price of the stock. A pledge agreement was signed by the bank, the Porter partnership and Hayes, which provided for release by the bank to the partnership of such pledged shares as it might from time to time sell, upon payment to the bank of $2 for each share so released; further, that Porter partnership should sell at least 30,000 shares within 60 days and upon default therein and notice by the bank to Hayes, the latter might exercise an option to pay the bank and recover the shares. On' September 9th, when the 60 days had expired, no shares had been sold by the partnership. The bank did not elect to treat this as a default or to exercise its rights under the pledge agreement to sell the stock, but, on the contrary, appeared to waive it and, consequently, served no notice of default on Hayes. At that time Hayes’ shares were of a value of $6.50 per share on the New York stock exchange.
Plaintiffs claim defendants breached their fiduciary duty as relates to sale of the stock in 3 respects: (1) Consenting to assignment from the Porter corporation to the Porter partnership at a time when such shares were bringing considerably more than $2 per share on the market; (2) permitting the stock to be pledged to the bank as security for a loan to Porter partnership; (3) failure to retake the stock after September 9th upon Porter partnership’s failure to have sold 30,000 shares to the public.
Plaintiffs’ claim concerning the assignment is predicated on the theory that the Porter corporation was then in default on its contract with Hayes and could not carry it out because it was not and could not be licensed as a dealer so as to function as' an underwriter; that, therefore, Hayes then could have cancelled the agreement with Porter corporation and retaken the stock, worth over $4 per share • on the market, and that defendants’ failure so to do and to obtain the market price on the shares constituted a waste of corporate assets and, hence, a breach of fiduciary duty. Plaintiffs failed to establish the default and corresponding right of Hayes to terminate the contract and retake the stock as of June 26th, the date of the assignment. Under the March 16th agreement the Porter corporation had 240 days to initiate and 300 days to complete distribution of the shares to the public. Lack of a dealer’s license on June 26th constituted no breach or default. There is no showing that Porter corporation could not have obtained a license. Even if it had been established that Porter corporation could not have obtained such license, the fact remains that, under the terms of the agreement, it could have disposed of the stock on the New York stock exchange, through some member thereof, thus obviating the need of a dealer’s license on the part of Porter corporation. The latter had a right, under the contract, to assign it with the approval of Hayes’ president. There was no right in Hayes at that time to cancel or terminate the agreement or to retake the shares and consent to the assignment is in nowise shown to have constituted a betrayal of Hayes’ interests.
Prior to and at the time the stock was pledged Hayes had but 2 interests therein or objectives in relation thereto: The first, receipt of payment therefor, and, second, that it be distributed to persons not objectionable to the war department. When the stock was pledged Playes received payment in full simultaneously. The pledge agreement contained safeguards against the eventuality of the stock falling into objectionable hands. The trans action is not shown to have defeated either, one of the two interests of Hayes sought to be secured by the' underwriting agreement. The provision in the pledge agreement for sale of 30,000 shares within 60 days after July 11th was intended for the protection of the bank, being more rigid in its requirement than the provisions of the agreement between Hayes and Porter corporation. Failure to sell the 30,000 shares within 60 days was not treated as a default by the bank, no notice of der fault was served by the bank upon Hayes, and, hence, the eventuality against which Hayes was to be protected under such circumstances, namely, indiscriminate sale, upon forfeiture, by the bank, so that the shares might have fallen into hands objectionable to the war department, never occurred. In consequence, the right did not accrue to Hayes on September 9th or thereafter to pay the bank and retake the stock. Plaintiffs have failed to establish a breach of fiduciary duty by defendants in this respect.
The next claim of breach relates to defendants:’ compromise settlement of bonus claims of the corporation’s president and of the manager of its parachute- division. Under contracts of employment entered into as-of December, 1940, and March of 1942,- respectively, each was entitled to a stipulated salary and, in addition, to a bonus to be determined by specified percentages of net profits. Later, congress enacted the renegotiation act of 1942. Thereafter dispute arose as to whether the bonuses should be computed on the basis of net-profits before or after renegotiation. Ultimately a compromise settlement was concluded with both. Plaintiffs cite cáses from other jurisdictions in support of their contention that the computations should have been on the basis of net profits after renegotiation. ■ The trial court, relying upon Gee v. Olson, 320 Mich 274, ruled that the computation should not have been affected by renegotiation. While the latter case is not directly in point, its implications might be viewed as favorable to the trial court’s position. We need not determine, however, on which of the 2 bases the computation should 'have been made. At all events, a genuine dispute existed, with the legal rights of the parties in serious doubt. Under such circumstances, we cannot hold that the action of defendants in compromising and settling the claims constituted actionable breach of fiduciary duty.
Plaintiffs complain of payment of excessive salaries to the corporate president and other officers, and present a set of figures representing salaries paid to the president individually and another set representing totals paid to all officers and directors without itemizing or indicating the number of individuals involved or the amounts paid to . each. Having failed to establish the payment of any specific amount.to any'of the .officers or directors other than the president, we need consider only the claim as relates to salary paid him. No proofs ■ were offered by either side to establish what would have amounted to reasonable and proper compensation. Plaintiffs rely on McKey v. Swenson, 232 Mich 505, for the proposition that the burden rested upon defendants to establish the reasonableness of the compensation. Defendants urge that under Wiseman v. Musgrove, 309 Mich 523, the burden rested upon plaintiffs to establish the unreasonableness thereof. Reading of the 2 cases and of 2 others therein cited, namely, Nahikian v. Mattingly, 265 Mich 128, and Miner v. Belle Isle Ice Co., 93 Mich 97 (17 LRA 412), discloses that the rule imposing the burden of proof on defendants is applicable in cases where the action of the directors in fixing their own compensation is held void for the reason that it was accomplished by the vote of those benefiting thereby. As said in the Miner Case (id 110):
“All the authorities agree that it is essential that the majority of the quorum of a board of directors shall be disinterested in respect to the matters voted upon.”
In the instant case the president was not a director and played no official part in the fixing of his salary. It was not shown that the fixing of salaries of other officers or directors was in any instance áccomplished by or dependent upon the vote- of the individual thereby benefited. Accordingly, the case presents a situation in which the action in question was not void as in the McKey Case, but is comparable to that in the Nahikian Case, in which this Court said, as later quoted with approval in the Wiseman Case, the following:
“In McKey v. Swenson, 232 Mich 505, we held action in fixing salaries wholly void and cast the burden upon the officers to give the court information upon which reasonable compensation could be fixed. Such, however, is not the case at bar, for here we do not have wholly void action but only assertion of unreasonable compensation and the burden is on plaintiff to establish the charge.”
Plaintiffs failed to establish a case in this regard.
Finally, plaintiffs complain of defendants’ settlement of a creditor’s claim for alleged commissions due, under a contract, on business obtained for Hayes. Plaintiffs, present an analysis of Hayes’ books purporting to show nothing was then-due the creditor. Hayes’ comptroller’s analysis was to the contrary, showing a sum due somewhat less than the compromise settlement, while the creditor claimed an amount considerably in excess thereof. We are not satisfied on the entire record that plaintiffs have established the accuracy of their own and inaccuracy of the comptroller’s conclusions from the figures contained in Hayes’ books. Under all the facts established by the record, it cannot be said that plaintiffs have sustained the burden of proving that defendants acted recklessly or breached their fiduciary duty in effecting the compromise and settlement.
Affirmed, with costs to defendants.
Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit.
See 54 Stat 4 et seg. (22 USCA, § 441 et seg.).—Reporter.
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Boyles, J.
Charles F. Brown and- Ralph E. Toynton prior to February 18,1939, had been individually engaged in the real-estate business in Detroit for many years. On that date they organized a close corporation known, as the Toynton-Brown Company. Charles F. Brown and his wife, Gladys F. Brown, became the owners of one-half of the capital stock and Ralph E. Toynton and his wife, Jennie D. Toynton, the owners of the other half. These parties became the directors and officers of the corporation, Mr. Brown being president, Mr. Toynton vice-president, and Mrs. Toynton after the first year being secretary-treasurer.
The purpose of the corporation as set forth in the articles was as follows:
“Engaging in and carrying on a general real estate and insurance agency in all its branches; dealing in and carrying on a general business in real estate securities of every kind; and building and erecting dwelling houses, apartment houses, stores, office buildings and structures of every kind, the owning and leasing of all property necessarily incident thereto and in general to carry on any business in connection therewith and incident thereto not forbidden by the laws of the State of Michigan and with all the powers conferred upon corporations by the laws of the State of Michigan.”
Thereafter disputes arose, and the parties concluded to terminate the corporation. Brown suggested an amicable settlement by filing a certificate with the Michigan corporation and securities commission and dividing the assets. Toynton was only willing to file a certificate. Accordingly, dissolution and receivership proceedings were instituted in the circuit court for the county of Wayne in chancery, bearing cause No. 328833. The matter came up before the Wayne circuit court in chancery, and on the same day with the filing of the above proceedings Edward S. Piggins, appellee, was appointed as receiver by consent. Also, on the same day, Mr. and Mrs. Brown and Mr. and Mrs. Toynton entered into an arbitration agreement, to which the receiver became a party by express approval of the court entered by stipulation of the parties. The agreement itself was filed with and approved by the court on May 21,1943. Its material provisions are as follows:
“Whereas, disputes and controversies have arisen between the parties hereto concerning the dealings of the various parties hereto with said corporation and with each other, and
“Whereas, such controversies have arisen in connection with the dissolution proceeding, which is now pending in the Wayne circuit court in chancery, No. 328833, in which proceedings the court has appointed the said Edward S. Piggins as successor receiver for said corporation, and
“Whereas, by order entered in said cause now pending between the parties hereto in the Wayne circuit court in chancery, this agreement of submission to arbitration was authorized, and the said receiver of said corporation was authorized and directed to execute the same as receiver, and
“Whereas, it appears that it will take extended and costly litigation to finally dispose of said cause, and all the parties hereto desire to submit all claims and controversies between them to a board of arbitrators for speedy and final determination,
“Now therefore, in consideration of the premises and the covenants and agreements herein contained,
“ It is agreed between the parties hereto as follows:
“1. The several parties hereto respectively agree:
■“ (a) To submit to a board of arbitrators as hereinafter designated, all claims, disputes, demands and controversies of every name and nature permitted by law, existing or alleged to exist between them, or any of them, growing or arising in any manner whatsoever out of the business relations of any of the parties hereto with said first party corporation or between or among said second or third parties, whether such transaction occurred preceding, during or subsequent to the formation and operation of said first party corporation and down to the date of this agreement.
“2. The said board of arbitrators shall be chosen from the members of the arbitration board or committee of the Detroit Real Estate Board, and may be composed by as many members thereof as the president of the Detroit Real Estate Board shall appoint to examine or hear and arbitrate the claims, demands, and disputes to be submitted hereunder.
“3. The findings and award of the majority of the said board of arbitrators so selected and continuing to act shall be filed with the clerk of the said court and a decree confirming such award shall forthwith be entered in the Wayne county circuit court in chancery, being cause No. 328833, pursuant to tbe statute in such case made and provided. * * *
“8. This agreement is made pursuant to and in conformity with provisions of 3 Comp. Laws 1929, § 15394 et seq., as amended by Act No. 317, Pub. Acts 1939, and Act No. 182, Pub. Acts 1941 (Comp. Laws Supp. 1940, § 15416-1, Comp. Laws Supp. 1943, § 15394, Stat. Ann. 1943 Rev. § 27.2483 et seq.), known as the Michigan arbitration statute.”
Pursuant to this agreement a board of arbitrators consisting of seven members' of the Detroit Real Estate Board was duly appointed, heard the matters in dispute between the parties, and filed an award with the court in the dissolution and receivership proceedings. The particulars of the award are not material to the issue before us, except as the award may bear on the title in fee, or for life, in real estate. The receiver petitioned the court for entry of an order confirming the award, Charles F. and Gladys F. Brown filed an answer to the petition, objecting to confirmation and claiming that the award was totally void in that it attempted to adjudicate the title of real estate held in fee, or for life, contrary to the statute. The court entered an order confirming the award after striking out certain provisions. Charles F. and Gladys F. Brown appeal from the order confirming the award.
Appellants state the question involved is as follows:
“1. Was the arbitration and award void under the provisions of 3 Comp. Laws 1929, § 15395 (Stat. Ann. 1943 Rev. § 27.2484), which provides:
“ ‘No such submission shall be made respecting the claim of any person to any estate in fee or for life in real estate.’ ”
. In their brief appellants argue other questions. They claim that the arbitration board exceeded its powers as to what matters were to be considered by it, that the award is void because the original submission agreement contemplated only an arbitration respecting the differences between the parties arising out of their dealings as directors and shareholders of the Toynton-Brown Company. The agreement itself refutes this contention. It expressly agrees to submit to the board of arbitrators all disputes and controversies between the parties arising out of their business relations “whether such transaction occurred preceding, during or subsequent to the formation and operation of said first party corporation and down to the date of this agreement.” Appellants also argue at length the merits of the award. No testimony was taken on the petition to confirm and the merits of the award is not an issue on this appeal. Taylor v. Smith, 93 Mich. 160. Our consideration is limited to the ground for reversal claimed by appellants as the question involved.
The precise question is whether there was a submission to arbitration “respecting the claim of any person to any estate, in fee, or for life, in real estate. ’ ’ The arbitration statute (3 Comp. Laws 1929, § 15395 [Stat. Ann. 1943 Rev. § 27.2484]), provides:
“No such submission shall be made respecting the claim of any person to any estate, in fee, or for life, in real estate; but any claim to an interest for a term of years, or for one year or less, in real estate, and controversies respecting the partition of lands between joint tenants or tenants in common, or concerning the boundaries of lands, or concerning the admeasurement of dower, may be so submitted to arbitration.”
Appellants rely mainly on Gallagher v. Kern, 31 Mich. 138. In that case two partners entered into an agreement to arbitrate their business differences. The arbitrators awarded to Kern several parcels of real estate — “some held already in his own name, and some in Gallagher’s, but none in the name of both.” This court, in setting aside the confirmation of the award, said:
“Upon the hearing, it appeared from the evidence that as to a part, at least, of the lands, — and the parcels of most value, — it was not admitted, and did not appear, except by conflicting proof, that the firm owned them. The title is one in fee simple, and the effect of the finding was to establish an ownership by parol evidence, variant from the apparent paper title.
“The statute is express that ‘no such submission shall be made respecting the claim of any person to any estate in fee, or for life, in real estate.’ — Comp. Laws [1871], § 6890. Any determination by arbitrators, where the parties do not agree upon the title, is, therefore, beyond their jurisdiction.”
Gallagher v. Kern, supra, is readily distinguishable from the case at bar.- The order confirming the award does not establish ownership of real estate, nor is there any disagreement between the parties upon the title. The holders of the title are known and the ownership is not disputed. While appellants do not point out with particularity the parts of the award which they claim violate the statutory inhibition, the record discloses, at the most, only five paragraphs which could be claimed to apply to real estate. Paragraph 2 requires Brown to assign to the corporation his undivided one-half interest in a certain agreement between one McClelland and wife as owners of real estate, and Brown as assignee, covering certain land, and in certain commissions or profits accruing to him under said agreement. Paragraph. 4 in similar manner requires Brown to assign to the corporation one-half of his interest in another contract with the owners of certain real estate, standing in the name of Brown and another as contract vendees, together with one-half of his profits therein, in full satisfaction of his indebtedness to the corporation on this deal. Obviously neither of these two paragraphs refers to any claim to any estate in fee, or for life, and they do not come within the inhibition of the statute. Paragraph 5 of the award, which required Brown to deed and convey to the corporation his undivided one-eighth interest in certain other land described therein, and paragraph 8, which required Gladys P. Brown to join with her husband in the execution of conveyances to release dower, were expressly eliminated from the award by the court in the order confirming the award. The court had the right to modify the award. 3 Comp. Laws 1929, §§ 15403-15405 (Stat. Ann. 1943 Rev. §§ 27.2492-27.2494); Beam v. Macomber, 33 Mich. 127.
The only other provision in the award or in the order confirming the award to which appellants may point as being- in violation of the statute is in paragraph 6. This gives to Toynton a 60-day option to purchase certain real estate, the title to which is in the corporation. In the event that Toynton fails to exercise the option, Brown is given a similar 60-day option to purchase this real estate. The terms and conditions of purchase are stated in detail. There is no dispute between the parties in this case as to the title of this real estate. It is conceded that the title in fee is in the corporation. The arbitrators did not undertake to decide who held the title in fee, as in Lang v. Salliotte, 79 Mich. 505 (7 L. R. A. 720), relied upon by appellants. In that case the disputants each claimed the title in fee to the same land. The arbitrators examined and attempted to pass upon the respective claims of the parties to their titles in fee in the land, and to decide that there was an error in description which the arbitrators held should be cor reeted. The case would be in point if there was a disputed claim between the parties before us as to the title in fee of this real estate. Such is not the case.
It is further to be noted that this is not solely the case of an order confirming an arbitration award. The parties have submitted to the court a voluntary proceeding for dissolution of a corporation and consented to the appointment of the receiver. The court has jurisdiction and supervision over the dissolution proceedings. Act No. 327, § 65, Pub. Acts 1931 (Comp. Laws Supp. 1940, §10135-65, Stat. Ann. §21.65). The voluntary dissolution is governed by the provisions of chapter 40 of the judicature act, 3 Comp. Laws 1929, § 15310 et seq. (Stat. Ann. 1943 Rev. § 27.2354 et seq.). The receiver appointed by the court became vested with all the estate, both real and personal, of the corporation, including the title to the real estate referred to in paragraph 6 of the order confirming the arbitration award. 3 Comp. Laws 1929, § 15315, as amended by Act No. 44, Pub. Acts 1933 (Comp. Laws Supp. 1940, § 15315, Stat. Ann. 1943 Rev. § 27.2359); Jacobs v. E. Bement’s Sons, 161 Mich. 415; McPherson v. Gregory, 271 Mich. 580. The order confirming the award, entered in the dissolution and receivership proceeding, had the effect of an order authorizing the sale of the real estate of the corporation by the receiver, first, to Toynton, or, if he failed to exercise his option, then to Brown. If neither of them should exercise his right, it still would rest with the court to direct the manner of disposing of the real estate by the receiver, subject to the order of the court.
We conclude that the order confirming the award is not subject to the infirmities claimed by appellants. It is affirmed and the cause remanded for entry of a further order extending the time within which the options may be exercised to begin with the date of remittitur.' Appellees may have costs.
North, C. J, and Starr, Wiest, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred.
This section as reenacted appears as 3 Comp. Laws 1929, S 15395. —Reporter. | [
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Bushnell, J.
Defendant Mabel Gr. DeBeanlien was convicted by a jury on tbe charge of administering medicines and employing certain instruments with the intent to produce a miscarriage, in violation of Act No. 328, § 14, Pub. Acts 1931 (Comp. Laws Supp. 1940, §17115-14, Stat. Ann. § 28.204). On appeal she argues that she did not have a fair trial and that her right thereto was violated by the prosecutor when he said in his opening statement—
“we will show you, members of the jury, that the victim in this case is one Locena Bensinger.”
She also claims that the trial judge committed error in excluding a certain “Exhibit A” which was purported to have been signed by the complaining witness. This exhibit was excluded on the ground that the proper foundation for its admission had not been laid.
There is sharp conflict in the testimony, it being the claim of the prosecutor’s chief witness, Locena Bensinger, that she went to the city of Lansing, where an illegal operation was performed on her by the defendant. Defendant, on the other hand, insisted that she never saw or treated the complaining witness until she reached her bedside in Ionia, and that she then learned for the first time that the witness was suffering from an illegal operation.
The single use of the word “victim” could not have any bearing on the verdict of the jury, and we are not inclined to reverse convictions in criminal cases because of claimed errors in the arguments of prosecuting attorneys, unless such arguments are of a prejudicial nature and contribute to an improper verdict. People v. Peck, 147 Mich. 84, 95.
Defendant testified that she herself wrote out the statement contained in “Exhibit A.” This exhibit purports to be an admission by the complaining witness that she brought about her own condition. The circumstances regarding the drafting and execution of “Exhibit A” were related by the defendant as follows:
“Q. Did you write a statement out on a piece of paper?
“A. Yes; I asked her for a piece of paper to write down a statement, the address of her father and mother, that we could make out a death certificate and she got me a piece of. paper, and he called to his mother to get something to eat for me, and I wrote out a statement at that time and there was a lot of sobbing and tearful, and I says, ‘Put the name on here’ — then they furnished the paper and pencil. ’ ’
The trial judge accurately summarized the situation as follows:
“No claim was made that Locena Bensinger, whose testimony was sought to be impeached by this exhibit, had dictated or directed in any way the preparation of the statement. Rather, it is apparent from the record that defendant herself prepared it on her own initiative, and there is no showing, and no claim, that it was read to Mrs. Bensinger, or that Mrs. Bensinger read it. It does not appear that at the time defendant told her to put her name on the paper that any attention was called to the fact that there was some writing thereon.
“While the testimony of a witness may ordinarily be impeached by showing prior inconsistent statements, either verbal or written, it must appear that such prior statements were made, authorized, or adopted by the party, the impeachment of whose testimony is sought.”
The applicable rule is stated in 6 Jones, Commentaries on Evidence (2d Ed.), p. 4746, § 2406, as follows:
“Hence, witnesses may be impeached by producing their written' statements, for example, their letters, affidavits, depositions or the like, which are inconsistent with the testimony given at the trial. * * * Bnt it is, of course, plain that in order to serve as in itself a contradiction a writing must be shown to have been made by the witness himself, or by someone under his direction, or to have been approved and adopted by the witness as his own act and deed.”
See, also, Castle v. Searles, 306 Ill. App. 304 (28 N. E. [2d] 619); Altieri v. Railway Co., 103 N. J. Law, 351 (135 Atl. 786); Hyde v. Kloos, 134 Minn. 165 (158 N. W. 920). The trial judge did not err in excluding “Exhibit A.”
In support of her argument that she did not have a fair trial, defendant, who is an osteopathic practitioner, argues that the court allowed the prosecutor to ask her the following “trick question:”
“Q. I will ask you whether or not on December 6th, 1941, you knew how to perform such an operation?”
Defendant claims that this constituted prejudicial error and that no objection to the question was required, citing People v. Kelsey, 303 Mich. 715, 719. In the Kelsey Case it was held that the “examination could have been for no other purpose than to create prejudice in the minds of the jurors.” In the instant case the question was asked for the purpose of determining whether defendant had' sufficient knowledge to commit the offense with which she was charged and, under the circumstances of the case, was a proper one.
Defendant did have a fair trial and there is sufficient evidence to support the verdict of the jury. We find no reversible error and the sentence is affirmed.
North, C. J., and Starr, Wíest, Butzel, Sharpe, Boyles, and Reíd, JJ., concurred. | [
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Reid, J.
This is a bill filed to enjoin an adjoining owner from coming upon the roof of plaintiff’s building to repair defendant’s wall. Plaintiff and appellant, Lillian Dickel, is the owner, as vendee of the State land office board, of the north 44 feet of the east 80 feet of lot 8, block 219, in the city of Muskegon. Defendant and appellee Kate Fonger is the owner of the adjoining lot on the north. Defendant State land office board denies interest in the dispute between the other parties.
In 1929 or 1930 a one-story brick store building was built on plaintiff’s lands, the north wall being even with the north line. On Mrs. Fonger’s land to the north there is a two-story frame store building with brick veneer on the sidewall, which was erected in 1891. This wall had also been built flush with the line so that there is no intervening space between the two walls; defendant’s wall being one story higher than plaintiff’s wall. Mrs. Fonger’s wall is a wooden frame structure with brick veneer but the bricks were placed on edge and only prevented from buckling by square hails which were in common use 50 years ago. These nails were driven into the framework and left extending so that when the bricks were placed on edge in mortar the nails and mortar keep the bricks from falling down. In the lapse of time since the wall was constructed, moisture has penetrated, the nails have rusted out, and the mortar crumbled. There is nothing now to prevent the exposed portions of the brick , veneer wall ffom falling down. During the severe windstorm of November 11, 1940, a large portion of defendant’s wall above plaintiff’s roof fell onto her roof, caused it to leak and resulted in damage to the room below from water running on the floor and soaking up the ceiling and partitions.
Defendants Leslie L. Fonger, Carlos Fonger, and Charles Fonger operate the .two-story building of their mother, Kate Fonger. Mrs. Fonger told plaintiff that she expected to fix her wall without paying plaintiff’s damages and said she expected to get permission from the fire chief' to come upon plaintiff’s roof for the purpose of fixing the wall. Later, it seems, her son was willing to give compensation to plaintiff for the damages that had occurred to plaintiff’s property.
The exposed wall of Mrs. Fonger should be entirely torn down as there will always be danger of buckling even though there be temporary repairs. The construction was flimsy in the first place and has become more dangerous with deterioration.
If the Fongers had tendered full compensation for damage and protection against further loss and proceeded diplomatically in the first instance, possibly plaintiff would have granted the permission which she now refuses. Plaintiff does not seek damages except by way of prayer for other and further relief, but does ask that defendants be restrained from trespassing upon her property and, particularly, from using her roof to make repairs or for any other purpose.
• Defendants Fonger do not claim the permission by the State land office board, the vendor, gave thém any lawful right as against the board’s vendee. No such reservation is in the contract.
“The vendee gets the equitable title, but the legal title still remains in the vendor, and is held as security for the payment of the purchase price. Upon the payment in full of the purchase price, the vendee has the right to have a conveyance of the legal title.” Hooper v. Van Husan, 105 Mich. 592, 597.
The fact that plaintiff is a land contract vendee gives defendant adjoining land owner no right to trespass on her land.
Plaintiff is clearly, entitled to this injunction in view of the threatened trespass. The decree not only withheld from the plaintiff the injunction she sought but gave defendants Fonger permission to go upon plaintiff’s roof andmake the repairs to the wall. It further ordered a $100 cash bond to indemnify plaintiff against damages caused by making repairs. The decree also incorporated an injunction against plaintiff from preventing defendants Fonger from going upon her roof.
There is no right on the part of Mrs. Fonger or her servants to go iipon plaintiff’s roof. There is no cross easement between these owners of adjoining lands concerning entry upon the lands of the other for purposes of repairing a wall. No such cross or reciprocal easement is alleged, proved, found in the court’s opinion, or recited in the decree. No decision is cited establishing any such easement and it is not implied from the construction of two walls at the property line.
When an adjoining owner builds a wall immediately up to the property line, he assumes, in general, the difficulties incident to his own construction and is required to make his construction and repairs entirely from his own side of the line. There is no party wall involved in this case.
The decree appealed from is set aside and vacated. The decree of this Court will provide for the injunction prayed for by plaintiff and will award to her damages, as found by the trial court, in the sum of $178.25, with costs of both courts.
North, C. J., and Starr, Wiest, Butzel, Bhshnell, Sharpe, and Boyles, JJ., concurred. | [
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Wiest, J.
(concurring). Under writ of habeas corpus, plaintiff’s girl baby, six months of age, was taken from the custody of the grandparents and awarded to her. The parents of the baby were married on August 3, 1942, and on December 6, 1942, the baby was born at a hospital in the city of'Ann Arbor. Being subject to the war draft the father left to join the navy the day after the baby was born and the mother went to live with the parents of the father. The mother of the baby left that home on February 9, 1943, went to live with her married sister on .a farm and, on. March 23, 1943, sued out this writ of habeas corpus to obtain custody of the child from the grandparents. On June 23,1943, she was, by order of the court, awarded custody of the baby. Review is by the grandparents, the father not being made a party and at the time of the hearing being still in war service.
"We have examined the testimony and from it have reached the conclusion that in the home of the grandparents the baby was well cared for and nurtured and if it remains there will receive the proper loving attention and care. The ultimate fact to be determined is the welfare of the baby. Before her marriage the mother of the baby did not want it, evidently because of the possibility of its being a bastard, but we pay little attention to remarks to that effect made by her previous to marriage. But there is evidence that after the marriage she still did not want the baby and after its birth she was neglectful of its care and apparently disliked it. Plaintiff left the home and tried to work in a munitions plant but only remained there a short time. At the time the court awarded the custody of the baby to plaintiff she was living with her married sister in surroundings not conducive to the continued welfare of the child.
The friend of the court who was directed to. investigate and make report, found the baby and the mother at the home of her sister, Mrs. Crawford, who, with, her husband, operate about 300 acres of land and a stock farm. The sister and her husband occupy the lower floor of the farm dwelling house and have two bedrooms, living, dining and bath rooms. All the rooms are well ventilated and well furnished and the housekeeping appeared to be good. He further reported:
" The home can be recommended for the purpose, providing, Mrs. Lola Bird, mother of the child in question, continues to make her home with Mr. and Mrs. Crawford, or, until her husband returns from the U. S. service, as you will notice the Crawfords have two infants of their own to look after and if all the work is left to Mrs. Crawford, the Bird child may be neglected. On the other hand, if Mrs. Bird leaves her child to be cared for by Mrs. Crawford while Mrs. Bird is living or working elsewhere, this condition would be rather precarious for the child. Mrs, Crawford is not a very strong person and has a very nervous disposition. ’ ’
After their marriage on August 3,1942, the young couple lived with the husband’s parents and while there and before the baby was born the prospective mother of the baby stated to her mother-in-law, "I won’t say that I won’t kill it bnt I do not want it.”
The day after the baby was born the hospital authorities required the removal of the mother on account of her indifference to the welfare and-safety of the baby and retained the care and nurture of the baby for two weeks. The mother was removed by ambulance to the home of defendants where she received excellent care. About two weeks later the baby was taken to defendants’ home and, until removed • from their custody under the writ herein, was given loving care and attention, which they desire to continue.
Plaintiff’s conduct toward her helpless infant was one of indifference, to say the least, and evidences lack of normal mother instincts of love and nurture. The home where she now has the baby is one of tolerance at the will of the sister, to whom she did not even speak for a period of four months, even when they met the year before she took the baby there.
The welfare of this infant, her nurture and care now and in her future helpless state, is our judicial duty to safeguard and, in our opinion, based on the evidence, this commands reversal of the order awarding custody of the baby to her mother, dismissal of the writ and return of the child forthwith to defendant grandparents. No costs.
Bushnell, J., concurred with Wiest, J. | [
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Wíest, J.
This is an automobile collision case. At the point where Awixa avenue joins Geddes avenue in the city of Ann Arbor, Geddes avenue runs east and west and has a 34-foot driveway and Awixa avenue runs north from but does not cross Geddes avenue. Plaintiff, about 4 o’clock in the afternoon of November 28, 1941, drove her ailtomobile south on Awixa avenue and claims that before entering Geddes avenue she stopped and looked for traffic on Geddes avenue and the only vehicle in sight was a cement mixer truck several hundred feet to the right; that she then.started to turn west on the right- hand side of Geddes avenue but before her automobile had entirely cleared Awixa avenue her automobile was struck by an automobile operated by defendant Donald Gould and owned by Elgie Gould, his father, and she received injuries. The issues were tried to a jury, with verdict in favor of plaintiff, for $3,365. Defendants review by appeal, claiming the verdict was against the great weight of the evidence and plaintiff was guilty of contributory negligence as a matter of law.
The court left the question of plaintiff’s contributory negligence to the jury and our review discloses that the court was right in refusing a requested direction in favor of defendants, denying a motion for judgment notwithstanding the verdict, and in refusing a new trial.
Defendant Donald Gould, hereinafter referred to as defendant, testified that he passed the cement mixer and then drove to the right of the center of the road and saw plaintiff’s car entering Geddes avenue from Awixa avenue and he thought it was headed toward a south street a short distance west of Awixa avenue and, thinking that it intended to make that street, he turned his automobile to the left and the collision with plaintiff’s automobile occurred near the center of Geddes avenue and while he was endeavoring to pass it on the north side of Geddes avenue.
The jury accepted the version, testified to by plaintiff and her woman companion, that the collision occurred while she was endeavoring to make a right-hand turn on to Geddes avenue, where she had a right to go, and she was not required to look for defendant’s automobile to come down that side of the avenue. Defendant’s testimony was to the effect that plaintiff’s automobile was on Geddes avenue, with the front wheels over the center line, while plaintiff’s testimony was to the effect that the rear of her automobile had not cleared Awixa avenue at the time of the collision.
Under the circumstancés, if plaintiff intended to turn west on Geddes avenue that was her right side of the street to do so. Having’ previously observed the cement mixer and no other automobile, she was not guilty of contributory negligence as a matter of law if she did not again make observation for oncoming traffic on the wrong side of the street. Dreyfus v. Daronco, 253 Mich. 235; Lawrence v. Bartling & Dull Co., 255 Mich. 580; Sanderson v. Barkman, 264 Mich. 152; Grant v. Richardson, 276 Mich. 151.
Defendant admitted that he was driving at the rate of 40 miles per hour and was on the wrong side of Geddes avenue when his automobile struck plaintiff’s automobile. But, as said before, he claims to have been on the wrong side of the street to avoid an anticipated collision with plaintiff’s automobile on the right side of the street. When about 130 feet from plaintiff’s automobile defendant became aware of the probability of a collision and put on the brakes but skidded to the point of the accident.
The evidence presented an issue of fact for the jury upon the question of negligence of defendant and that of contributory negligence of plaintiff. Under the issues and the evidence it was not an instance where the court could direct a verdict, as requested by defendant. We cannot hold the verdict against the great weight of the evidence.
The verdict and judgment thereon are affirmed, with costs to plaintiff.
North, C. J., and Starr, Btjtzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Bushnell, J.
Plaintiffs William Ottney and Bertha Ottney, the parents of defendant Hazel Taylor, own a farm in Jackson, county. In 1928 defendant and her husband, with the consent of plaintiffs, erected a dwelling house, store, filling station and garage on plaintiffs’ land. There is direct conflict in the testimony as to the terms of the occupancy of the land, plaintiffs claiming that the daughter was to pay a ground rental of $40 per year, and the daughter contending that the rental was to be $15 per year, with a 99-year lease.
Defendant and her husband occupied the premises for some years without paying any rent or receiving a lease of any sort. Difficulties arose between the parties in 1933, resulting in circuit court commissioner proceedings by the parents and counter injunction proceedings by the daughter. A consent decree was entered in the circuit court in 1934 dismissing the daughter’s bill of complaint. At the time the premises were occupied by one Giumpers, a tenant of the daughter, who refused to vacate.
According to plaintiffs, the daughter had a bill of sale executed which she delivered to them, saying, “There it is, it belongs to you and it is up to you to get out Grumpers now.” The daughter denies the execution and delivery of the bill of sale and continues to claim ownership of the buildings.
After other family difficulties, which need not be related here, plaintiffs filed a bill of complaint in 1942 in which they sought to have the “lost, stolen or destroyed” bill of sale restored and that the daughter be restrained from interfering or disturbing their claimed right of occupancy of the premises. The daughter filed a cross bill in which she charged that her father and mother had converted the filling station, she having theretofore removed the other buildings from the land, and she sought damages for the conversion.
The trial judge directed attention to the reasoning in Cameron v. Oakland County Gas and Oil Company, 277 Mich. 442 (107 A. L. R. 1142), and the decree entered in the previous matter upon stipulation of the same parties involved here. He found that the buildings erected on plaintiffs’ land were the personal property of the defendant.
After a review de novo we adopt the following from the trial judge’s opinion:
“When plaintiffs refused to allow defendant to remove the filling station building and claimed title to it they were guilty of conversion of the building.
“Defendant is therefore entitled to the fair value of the filling station building at the time of the conversion. The testimony indicates the building cost $800 in 1928. The witness Raymer, a mover and contractor, testified that he had examined it and that it is now worth $600. No other testimony of value was produced, although it would seem, if such appraisal were not correct, that testimony disputing such valuation would be readily obtainable. ' The Court therefore finds that the value of the filling station building at the time of its conversion by plaintiffs was $600.
“On the plaintiffs’ claim for allowance of the fair rental value of the premises, which is not prayed for in the bill, the testimony of plaintiff William Ottney is that there was a parol agreement for $40 a year rent. The defendant testified on cross-examination that she was to pay rent, if she got a lease, at $15 a year.
“In defending their daughter’s suit for specific performance, the then defendants, Ottneys, made no claim for rent. In addition, if the Court were disposed to make plaintiffs any allowance for rent in the instant case, which it is not, then there is no way under the testimony to work out an accounting. The answer to the cross bill admits that plaintiff William Ottney received payments based upon the number of gallons of gasoline sold on the premises by Clarence Ottney, his son, claimed by plaintiffs to be a tenant of defendant; but what these payments may have aggregated is left entirely to conjecture.
“It has been suggested in one of the briefs filed by the request of the Court that it would be desirable to put an end to the persistent litigation between these parties. It is indeed unfortunate that father, mother, and grown-up daughter should have difficulties which cannot be composed by reasonable adjustment; but this is a situation where the Court must take the case as he finds it and endeavor to reach a reasonable conclusion under the evidence.”
The decree entered below is affirmed, with costs to appellee.
North, C. J., and Starr, Wiest, Butzel, Sharpe, and Boyles, JJ., concurred. Reid, J., took no part in the decision of this case. | [
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Bushnell, J.
Defendant Albert H. Moore was an automobile dealer located at Ravenna, Michigan, where he also maintained a repair garage. Plaintiff Olive Wingett was injured in a collision with an automobile driven by Richard Anderson and owned by Moore. Anderson and Moore had been acquainted for about 20 years. Anderson had bought a Chevrolet from Moore which became in need of repairs and it was brought to Moore’s garage on May 10, 1942. Moore thereupon loaned Anderson his Plymouth ear. Moore testified, “I let him take it to go to work with.” He explained the arrangement on cross-examination as follows:
“Q. Yon. said yon didn’t forbid him to nse it for any other purpose.
' “A. He didn’t ask me to nse it for any other purpose.
“Q. Yon said yon didn’t forbid him to nse it for any other purpose.
“A. He didn’t ask me.
“Q. Yon answer my question Yes or No. Did you forbid him?
“A. I did not.”
On June 27,1942, while Anderson’s Chevrolet was still undergoing repairs and while he was continuing to nse Moore’s Plymouth car, the accident in question occurred. Anderson at the time was on a fishing trip near North Muskegon.
The controlling question presented on this appeal is stated by appellant Moore as follows:
“Was there, either at the close of plaintiff’s proofs or at the close of all the proofs, any substantive evidence to present a jury question as to the credibility of witnesses, or to permit the jury to determine whether or not the operator of defendant’s car was, at the time and place of the accident, driving the same with the knowledge or consent, either express or implied, of the defendant?”
It appears from the record that the discussion pertaining to Anderson’s use of the car for the purpose of going to and from work actually referred only to the principal use to which the car would be put. Anderson, who was subpoenaed by the defendant, testified:
“Q. Did Mr. Moore forbid you to use the car in any way that you pleased?
“A. No, sir. There was nothing brought up about that.”
The indefinite nature of the arrangement between Moore and Anderson, the long period over which Anderson used the car, and the fact that Moore was still repairing his car, raised an inference that Anderson had the implied consent to use Moore’s car as he would his own, within reason. Implied consent, like implied authority, may be gathered from a consideration of all the facts and circumstances, and is usually a. question for the jury, Kerns v. Lewis, 249 Mich. 27, and the jury had the right to draw reasonable inferences from the disclosed facts and circumstances, Oestrike v. Neifert, 267 Mich. 462.
Moore argues that, since the loan of the car was qualified by his statement that it was to be used ‘ ‘ to go back and forth to work with” was uncontradicted, there was nothing for the jury to pass upon. This argument conflicts with the rule stated in Cuttle v. Concordia Mutual Fire Ins. Co., 295 Mich. 514, 519:
“If testimony, though not directly contradicted, is contrary to circumstances in evidence, or if it contains inherent improbabilities or contradictions which alone or in connection with other circumstances in evidence may excite suspicion as to the truth of the testimony, it may be disregarded by the jury. Uncontradieted testimony may be disentitled to conclusiveness because, from lapse of time or other circumstances, it may be inferred that the memory of the witness is imperfect as to the facts to which he testified, or that he recollects what he professes to have forgotten. 10 R. C. L. p. 1006.
“In Yonkus v. McKay, 186 Mich. 203, 210 (Ann. Cas. 1917 E, 458), the court said:
“ ‘But even assuming that these facts material to the issue had been proven by plaintiff and her witnesses without direct contradiction by any witnesses for the defendant, we are of opinion that it still would not be error for the court to instruct the jury that they must find those facts proven by a fair pre ponderance of tbe evidence. To hold that in all cases when a witness swears to a certain fact the court must instruct the jury to accept that statement as proven, would be to establish a dangerous rule. Witnesses sometimes are mistaken and sometimes unfortunately are willfully mendacious. The administration of justice does not require the establishment of a rule which compels the jury to accept as absolute verity every uncontradicted statement a witness may make. ’
“In Ricketts v. Froehlich, 218 Mich. 459, 461, it was said:
“ ‘ Circumstantial evidence in support of or against a proposition is equally competent with direct. As against each other their relative convincing power is for the jury. The trial court apparently assumed that defendant’s direct denial must be taken as true against all circumstantial evidence introduced.’ ”
See, also, Jonescu v. Orlich, 220 Mich. 89.
Defendant argues that Merritt v. Huron Motor Sales, Inc., 282 Mich. 322, is controlling. The facts in the Merritt Case are quite different. There, the owner of the car loaned it to the driver for the specific purpose of making a single trip from Ann Arbor to Brighton on the evening of February 1st, and the accident occurred at 2 o’clock on the morning of February 2d in Detroit, where the driver was not authorized to go. In that case sufficient time had not elapsed to create any inference of implied consent to use the car for general purposes. The recent case of Jeffries v. Jodawelky, 304 Mich. 421, is also distinguishable both on the facts and law, that being a case of respondeat superior, and the instant case is based upon the statute (1 Comp. Laws 1929, § 4648 [Stat. Ann. § 9.1446]), which imposes liability upon the owner of the car.
There was evidence to present a jury question as to whether or not Anderson was using the car in a manner authorized by Moore at the time of the accident. The verdict of the jury is affirmed, with costs to appellee.
North, C. J., and Starr, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North, J.
In a general way the abstract issue-presented in this case is stated in appellant’s brief as follows:
“Where a donor of a trust is ignorant or mistaken with respect to his antecedent or existing private legal rights as to one purpose sought to be accomplished by the transaction but is fully informed thereof as to another purpose also sought to be accomplished thereby, will equity grant a reformation or rescission of the transaction?”
In effect the trial court hy its decree answered in the affirmative; and this appeal by the defendant, National Bank of Detroit, as trustee, followed.
Plaintiffs, Glenmore Miller and Mabel Miller, husband and wife, are the parents of Venita Marie Miller-Guenther, age 21; Marjorie Louise Miller-Thompson, age 20; Shirley May Miller, age 15; and Glenna Jean Miller, age 10. Prior to June 21, 1943, plaintiff Glenmore Miller was the sole proprietor of the Superior Metal Products Manufacturing Company, engaged in a tool and die business located in Oakland county. On the date above noted plaintiffs made gifts to defendant Earl L. Phillips, as trustee, aggregating $20,000. Thereupon Phillips executed 9 declarations of trust. In 5 of these trusts Mr. Miller was the donor, and appellant, National Bank of Detroit, was the direct beneficiary, but as trustee for the benefit of Mrs. Miller and the 4 daughters above named. In the other 4 trust declarations executed by Phillips, plaintiff Mabel Miller was the donor, the National Bank of Detroit was the direct beneficiary, but as trustees for the benefit of the 4 daughters above named. Hereinafter the above 9 trusts will be referred to as the primary trusts. In these primary trusts it was provided that Earl L. Phillips should invest the $20,000 trust fund as a limited partner in a limited partnership to be formed and to hold such limited partnership interest in trust for the National Bank of Detroit and to pay over to said bank all avails and incomes received by Phillips as trustee from the limited partnership to the defendant National Bank of Detroit as trustee.
Simultaneously with the creation of these primary trusts the National Bank of Detroit executed 9 declarations of trust whereby it agreed to hold in trust and accumulate for the benefit of the wife and 4 daughters, respectively, all income derived from the limited partnership by Phillips and paid by him to the bank. In each of the trust agreements executed by the bank the unknown, unborn issue of any of the 4 daughters were made contingent beneficiaries. We herein refer to these 9 latter trusts as secondary trusts.
A limited partnership was formed under the name of Superior Metal Products Manufacturing Company, with a fixed term of the partnership as 5 years from and after June 21, 1943. Its contributed capital by the limited partner Phillips was the $20,000 trust fund. Mr. Miller, as a general partner, contributed the assets of his former business at a valuation in excess of $16,000. Mrs. Miller, as a general partner, purported to contribute to the partnership’s capital $4,000 in cash, which, however, was furnished by Mr. Miller. Under the terms of the limited partnership Mr. Miller was to receive 40 per cent, of the profits, Mrs. Miller 10 per cent., and the limited partner, Earl L. Phillips, 50 per cent. The limited partnership from the date of its organization to October 22, 1947, carried on the business formerly operated by Mr. Miller. On the last named date Mr. and Mrs. Miller, without the consent of Phillips, conveyed all of the assets of the limited partnership to a corporation of the same name in exchange for all the outstanding stock of the new corporation. In this way the limited partnership made the sole capital contribution to the new corporation. As above noted the terms of the limited partnership expired June 21, 1948.
In the years 1943, 1944 and 1945 the limited partnership made large profits, yet at the time the partnership assets were transferred in 1947 to the corporation, and in June, 1948, when the term of the partnership expired, and at the time this suit was tried, under the terms of the trust in which Phillips was the beneficiary as trustee for the National Bank of Detroit, the limited partnership was indebted to Phillips in the amount of $20,000 for income earned in 1945, in the amount of $18,607.73 for the period from January 1, 1947, to June 21, 1948, and further in the sum of $20,000 for return of capital investment which accrued upon the expiration of the limited partnership term, June 21, 1948. The total of such indebtedness was $58,607.73.
The record justifies the conclusion that the above outlined transactions were instigated by Mr. Miller and perfected in consequence of his having been advised by competent tax counsel that he could thereby lawfully minimize his Federal income tax. He testified that such was his “sole purpose.” We are satisfied that such in fact was at least his primary or main purpose, notwithstanding he also testified that the 9 secondary trusts were “established for the sole purpose of creating estates for the beneficiaries named therein.”
The attempt to minimize Miller’s ^income tax in the manner hereinbefore noted proved to be ineffective. The department of internal revenue charged all of the 1943 taxable income of the limited partnership to Mr. Miller individually, and for that year Miller was assessed with a deficiency in his income tax payment amounting to $76,956.14. And the department of internal revenue took the same position as to Mr. Miller’s personal liability for payment of the corresponding income taxes for 1944 and 1945. For the 3 years involved the increase in income taxes was estimated as amounting to $150,000. The Federal government has filed a tax lien for the 1943 income tax and has issued a warrant of distraint. There is uncontradicted testimony that the filing of a tax lien for the above mentioned taxes “would tend to limit the partnership’s credit to such an extent that the business could probably not be carried on.” The uncontroverted testimony is that Mr. Miller “isn’t able to pay tbe tax, he doesn’t bave tbe cash to pay the tax with.” When tbe factual situation developed as above outlined Mr. and Mrs. Miller filed tbe bill of complaint herein. A guardian ad litem was appointed for tbe “minor beneficiaries” and for tbe “unknown, unborn, contingent beneficiaries” under tbe secondary trusts, and all parties in interest were properly before tbe court. Tbe relief sought in tbe bill of complaint as amended and granted by tbe trial court was in substance as follows:
(1) That by tbe acts of plaintiffs tbe limited partnership was dissolved as of October 22, 1947.
(2) That on tbe same date plaintiffs lawfully rescinded tbe Phillips trust under tbe terms of which there was then due to Phillips, as trustee, from tbe limited partnership a total of $58,607.73; and that said sum be allocated to tbe 9 secondary trusts.
(3) That the 9 secondary trusts be reformed in tbe following manner. In lieu of said $58,607.73 “tbe plaintiffs Jierein may execute and deliver directly to tbe National Bank of Detroit, trustee, * * * and tbe said National Bank of Detroit, trustee, may accept in place and instead of said sum of cash, preferred stock in tbe sum of $58,000, issued by tbe Superior Metal Products Manufacturing Company, a Michigan corporation, with a 20-year maximum term from June 21, 1948, bearing interest at tbe rate of 4 per cent, per annum, which interest shall be cumulative, and that said preferred stock shall also embody a provision that tbe stock may be called for redemption at any time by tbe said corporation, provided tbe entire amount of interest accrued thereon is paid at tbe time of redeeming said stock.”
(4) That upon delivery of tbe preferred stock to tbe bank trustee, Earl L. Phillips, as limited partner and trustee, was discharged of all bis duties and 'obligations as such; and tbe National Bank of Detroit, trustee, was decreed to bave fulfilled its duties and obligations under tbe applicable provisions of tbe trust agreements and declarations of trust upon its receipt of the said preferred stock.
From the decree entered in the circuit court August 13, 1948, only the National Bank of Detroit in its capacity as trustee appealed. In. its brief it states:
“It is the position of National Bank of Detroit .as such trustee that the plaintiffs have not established their right to the relief which was granted under either of the foregoing theories (noted in the following paragraph).”
As stated in appellant’s brief the 2 theories upon which the trial court granted equitable relief were: “(1) That the donors were mistaken as to their antecedent and existing legal rights to minimize their income taxes in the manner which was attempted, * * and (2) that when the purpose of a trust has failed or unexpected and unforeseen conditions and exigencies have arisen, a court of equity has inherent power to reform the trust.”
We are of the opinion that plaintiffs as donors were mistaken as to their legal rights incident to creating the respective trusts; and further if reformation of said trusts had not been granted, such trusts as to future beneficial accumulations would have failed because of the financial straits in which Mr. Miller ultimately found himself, which circumstance quite conclusively would have resulted in failure of the successor corporation which was the prospective source of further accruals to the secondary trusts. Under such circumstances it was within the jurisdiction of the circuit court to grant relief; and under this record the relief granted appears to be a practical and just solution of the situation as presented to the trial judge.
We are not in accord with the contention in appel lant’s brief “that two separate and distinct purposes were sought to be accomplished by the formation of the limited partnership and the execution of the various trust agreements. One of these purposes was to minimize income taxes and the other was to create separate estates for the ultimate beneficiaries.” Instead, in our opinion, the only thing that motivated Mr. Miller in causing the trusts to be formed was his desire to minimize in a supposedly lawful manner his income tax; and had he not believed that would be accomplished in the manner attempted he would not have caused the trusts to be created. Indicative of this is the rather circuitous manner in which the trusts were designed to operate. In our view there were not “two separate and. distinct purposes (which) were sought to be accomplished.” Instead there was one fundamental purpose — the desire of Miller to reduce the income tax which he mistakenly thought could be lawfully accomplished by the creation of the trusts. Creation of these trusts was merely a means by which Miller expected to accomplish the desired result. Thus considered, all that was done must be construed as one transaction designed to accomplish the single purpose of minimizing Miller’s income tax; and decision herein is controlled by Stone v. Stone, 319 Mich 194 (174 ALR 1349), which results in affirmance of the circuit court’s decree herein.
Lowry v. Collector of Internal Revenue, 322 Mich 532, upon which appellant largely relies, is not in point because, as stated in appellant’s brief concerning the Lowry Case, “it appeared from the testimony (in that case) that the principal purpose of the donor in'making the gift was not to minimize his income taxes but was to create a separate estate in the donee.”
We are not in accord with appellant’s contention that since Mr. Miller has not pursued to final judicial decision the holding of the department of inter nal revenue that Miller is personally liable for payment of the respective income taxes, therefore plaintiffs were not entitled to equitable relief in the instant case. Because of Miller’s financial embarrassment he was not able to pay the income tax and until such tax is paid the taxpayer cannot obtain review in the courts. See Internal Revenue Code, chap 36, § 3653(a).
The final question presented in appellant’s brief is as follows:
“Where unexpected and unforeseen exigencies affect only the donor of a gift in trust and not the trust estate or the interest of the beneficiaries, will equity grant a reformation or rescission of the trust?”
As noted earlier in this opinion the unexpected and unforeseen exigencies which occurred in the instant case not only affected the rights of the donors, but insofar as future additions to the trust funds of the secondary trusts are concerned, they and also the interests of the beneficiaries therein, were materially affected by these same unexpected and unforeseen exigencies. This seems to be admitted in-appellant’s brief wherein it is said:
“This defendant and appellant, National Bank of Detroit, has no knowledge as to whether it or the primary trustee, Earl L. Phillips, can collect those sums which are due to the primary trustee Phillips from the limited partnership, and it appears to be a fair inference from the testimony that such collection probably cannot be made without a forced liquidation of Mr. Miller’s business, the physical assets of which are now owned by the corporation which succeeded the partnership. We agree that such result would, to say the least, be inequitable and in the long run detrimental to the interests of those persons for whom this appellant is trustee.”
The decree entered in the circuit court is affirmed; but since by decree of tbe trial court appellant is authorized to reimburse itself for its reasonable and necessary expenses out of the trust funds in its custody, no costs are awarded.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred.
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Dethmers, J.
Defendants appeal from a judgment ordering issuance of a peremptory writ of mandamus directing the defendant city inspector to issue plaintiff a building permit for erection of multiple dwellings on certain property owned by plaintiff in the city of Royal Oak and directing the defendant city, mayor and city commissioners to amend the city’s zoning ordinance by changing said property from a residence “A” classification, in which single residences only are permitted, to a residence “B” classification, permitting erection of multiple dwellings thereon.
The trial court’s action was predicated on a finding that the provisions of the ordinance classifying-plaintiff’s property bear no relation to public health, safety or general welfare, are unreasonable and therefore deprive plaintiff of property without due process of law in violation of the 14th amendment to the Constitution of the United States and Michigan Constitution 1908, art 2, § 16, citing Senefsky v. City of Huntington Woods, 307 Mich 728 (149 ALR 1433), and City of Pleasant Ridge v. Cooper, 267 Mich, 603. The court appears to have been moved largely by consideration of the fact that it did not appear in the proceeding’s of the city commission in connection with the adoption of the ordinance that “any discussion or consideration was given to the public health, safety, public morals or public welfare,” further that defendants did not prove any relation between those “factors”. and the said “classification,” and finally that, the testimony of certain city officials indicated that in certain respects, bnt not necessarily in all, public health and safety would be as adequately served in a multiple dwelling as in a single residence area.
Testimony for the' defense established that the property in question fronts on Yinsetta Boulevard, one of the best streets in Royal Oak, wide and divided by a beautiful, well-kept parkway, and that the area is one of the choicest and nicest residential districts in the city; that lots in the area are all restricted to single residences; that no violations of the zoning ordinances or restrictions have occurred and that all dwellings built in the area are single residences. In our view plaintiff did not establish by competent evidence that the ordinance’s classification of plaintiff’s property is unreasonable or bears no relation to public health, safety or the general welfare.
In the court’s opinion in Village of Euclid v. Ambler Realty Co., 272 US 365 (47 S Ct 114, 71 L ed 303, 54 ALR 1016), involving the validity of provisions of a city zoning ordinance excluding apartment houses from residential districts, may be found a cataloguing and consideration of the respects in which such ordinance provisions bear a relationship to public health, safety, morals or general welfare. Citing that case as authority, this Court in Austin v. Older, 283 Mich 667, said:
“The improvement of residential districts by the exclusion of nonconforming businesses has a reasonable relationship to the public health, welfare and safety.”
The burden was not on the defendants to establish the relationship, but upon the plaintiff to show the lack of it. Austin v. Older, supra;. People v. Scrafano, 307 Mich 655; Fass v. City of Highland, Park, 321 Mich 156. This burden plaintiff did not sustain. While the ordinance must stand the test of reasonableness, the presumption is in favor of its validity and courts may not invalidate ordinances unless the constitutional objections thereto are supported by competent evidence or appear on their face. Portage Township v. Full Salvation Union, 318 Mich 693. Invalidity does not appear on the face of the ordinance merely from its classification of certain property for use. for single residences only, nor are the constitutional objections thereto or claims of unreasonableness supported by evidence in the case. The trial court was, therefore, in error in requiring issuance of the building permit.
.In City of Pleasant Ridge v. Cooper, supra, we held unreasonable and confiscatory a classification of property as residential when the record disclosed that the area was unsuited for that purpose. Such is not the case before us. No more in point is the Senefsky Case, supra, in which we held a zoning ordinance which “prohibits the erection of houses having less than 1,300 square feet of usable floor area” possibly reasonable “under proper circumstances” but not so “under the circumstances disclosed by this record” because the testimony affirmatively established that houses of lesser floor area-equally met the requirements of public health, safety and welfare in the community and under the circumstances then and there before the court.
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. Attorney General, ex rel. Graves, v. Mayor and Common Council of City of Adrian, 164 Mich 143; School District of City of Pontiac v. City of Pontiac, 262 Mich 338; City of Jackson v. Commissioner of Revenue, 316 Mich 694. The court erred in seeking to compel the defendant mayor and city commission members to amend the ordinance.
Plaintiff contends that PA 1921, No 207, § 4, as amended (CL 1948, § 125.584 [Stat Ann 1949 Rev § 5.2934]), under authority of which the ordinance was adopted, is unconstitutional as constituting an unlawful delegation of legislative power and authority because it provides that amendments to the ordinance, if protested by owners of 20 per cent, or more of frontage of certain affected property, shall become effective only upon three-fourths vote of the municipal legislative body. Authorities cited by plaintiff relate to ordinances which provide that the right to use property for certain purposes shall depend upon the consent of individual neighboring property owners. Such cases have no bearing on the question of the power of the legislature, in conferring ordinance-making powers upon municipal legislative bodies, to require a three-fourths vote of such legislative body as a prerequisite to adoption of amendments to ordinances under certain circumstances. We believe such action well within the powers of the legislature and that it does not constitute a delegation of legislative power to private individuals. See, in this connection, discussion in People v. Collins, 3 Mich 343, McCall v. Calhoun Circuit Judge, 146 Mich 319, and cases therein cited.
Judgment reversed and writ quashed, with costs to defendants.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Butzel, and Carr, JJ., concurred. | [
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Carr, J.
During the period from September or October, 1946, to the early part of 1948, the plaintiffs in these cases were tenants in an apartment, building owned and operated by the defendants. Following the service of notices on them to vacate their respective apartments, they started suits in the common pleas court of the city of Detroit to recover treble damages because of alleged violations of the ceiling rents fixed by order of the Federal office of price administration. The pleadings filed are not contained in the record, but it may be assumed that the actions brought by plaintiffs were based on section 925(e) of the emergency price control act of 1942, as amended. Plaintiffs recovered' judgments, from which, defendants undertook to appeal to the circuit court'.
Motions to dismiss the appeals were made on behalf of plaintiffs on the ground that the provisions of the statute (CL 1948, § 678.2a [Stat Ann 1947 Cum Supp § 27.3482(1)]) as to the time within which such appeal should be taken as of right had not been followed. The record clearly indicates that such motions were well founded, and defendants, without waiting for a determination thereof, filed petitions for leave to take belated appeals. Orders were entered granting such petitions, and the cases were consolidated for trial in the circuit court. Following the taking of proofs before the court without a jury a judgment was entered in favor of the defendants, denying the right of the plaintiffs, or any of them, to recover. From the judgment so entered the plaintiffs have appealed, and by stipulation of counsel such appeals have been consolidated for presentation here.
On behalf of appellants it is claimed that the trial court was in error in granting the motions for leave to take belated appeals. • The facts concerning this phase of the controversy are not in dispute. The last day for taking the appeals as of right was the 11th of October, 1948. On Saturday, October 9th, defendants paid to their counsel money for the purpose of obtaining ■ the necessary appeal bonds, which bonds were obtained on Monday following. The appeal papers, following their preparation, were sent by mail instead of being personally served. They were actually received after the 5-day period for taking the appeals had expired.
Plaintiffs contend that defendants were at fault in not providing the necessary funds for the bonds until October 9th, insisting that this gave counsel, in practical effect, only one day in which to take action. It is argued in consequence that the failure to perfect the appeals within the time limited was chargeable to the defendants rather than to their counsel. The contention is without merit. Counsel for defendants should have had in mind that the last day for taking the appeal was on October 11th, and they should have made personal service rather than service by mail. The failure to act seasonably was in consequence chargeable to counsel rather than to' the defendants. The trial court was not in error in granting leave to take belated appeals. Meyers v. Wilson, 319 Mich 80, and prior decisions therein cited.
On the trial of the case defendants offered in evidence certain books of account, entries in which were made by Mr. Woods from slips furnished to him by the caretakers of the building, to whom plaintiffs made their payments. The slips were not preserved; and plaintiffs claim that the admission of the books over their objection was prejudicial error. It appears, however, that the records were kept in the ordinary course of business, and the fact that entries were made in the manner indicated would not render them incompetent. Meyer v. Brown, 130 Mich 449; J. H. Worden Lumber & Shingle Co. v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co., 168 Mich 74; Remer v. Goul, 185 Mich 371. Under the testimony of defendant Otto Woods, each record was complete as to the rentals collected from the plaintiffs for the period covered. They were returned to this Court with other exhibits, have been examined, and found not to be open to objections relating to form, alterations, and erasures, as claimed on behalf of plaintiffs.
On the trial of the case the plaintiffs testified in their behalf, claiming that they had paid rent during* the time that they were tenants of the defendants in approximately twice the proper amounts charge able under the ceilings as fixed by the office of price administration. No receipts or other records were offered by them. Apparently they did not ask or receive receipts when making payments to defendants’ caretakers, Mr. and Mrs. Clark Henry. Mr. Henry was also a witness in plaintiffs’ behalf, and testified from memory in corroboration of their claims. He stated that approximately one-half of the rental payments in question were made to him and the balance to Mrs. Henry. The latter was not a witness in the case.
It further appears that in January, 1948, or about that time, Mr. Henry had some difficulty with defendants, the latter claiming that he had withheld from them moneys that he had collected. It was his claim on the stand that such money, approximately $200 in amount, had been stolen from his apartment and that subsequently he made payment of the amount in dispute to defendants. He and his wife were discharged from their employment as caretakers, and shortly thereafter plaintiffs contacted the OPA,, making complaints that they had been overcharged. In indicating his conclusions the trial court pointed out that plaintiff McIntyre signed a complaint to the OPA stating that she had paid a bonus in the sum of $200 to obtain the apartment, that the declaration filed in her behalf in the court of common pleas stated such amount at the sum of $50, and that on the trial in circuit court she testified the bonus was $2. Plaintiff Ivey contended on the trial that he also had paid a bonus of $100 to defendant Flossie Woods. The trial judge found from the evidence before him that Ivey’s complaint to the OPA did not contain any such claim.
Testimony was offered by defendants indicating that the rentals actually collected did not exceed the OPA ceiling prices. They further claimed that the plaintiffs became in arrears in their payments and that the amounts in default were made up from time to time subsequently by payments in excess of weekly rentals! Their books of account tended to corroborate defendants’ claims in this regard. Plaintiffs rely largely on the fact that they did at times, during the latter part of their respective tenancies, make payments exceeding the weekly charge. It is rather significant, however, that the payments so shown were principally made after they had consulted the OPA following the discharge of Mr. and Mrs. Henry as caretakers, and after they had been advised to make payments by money orders. On behalf of defendants testimony was also offered to the effect that, following his discharge as caretaker, witness Henry stated that he would “get even” with defendants.
After listening to the testimony of all the witnesses the trial court came to the conclusion, as indicated by his opinion, that the testimony of' plaintiffs and their witnesses could not be accepted as establishing the facts with the requisite degree of certainty. The issue presented was determined on the basis of the proofs of the respective parties. The trial judge had the advantage of seeing the witnesses and of hearing them testify. In law actions tried before the judge without a jury this Court, as a matter of well-established practice, does not reverse the judgment entered unless the evidence' clearly preponderates in the opposite direction. On the record before us it cannot be said that such is the situation here. The testimony of plaintiffs and of their principal witness was materially impeached. The trial judge as the trier of the facts was entitled to take such fact into consideration. His conclusion that the plaintiffs had not borne the burden of proof resting on them is clearly substantiated by the record before us.
The judgment in defendants’ favor, as entered in the circuit court, is affirmed, with costs to them.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred.
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Boyles, J.
One Clarence J. East, individually and as administrator with will annexed of the estate of Enos East, deceased, filed a petition in 1948 in the probate court for Cass county, asking for a construction of the will of said decedent and for a determination that certain lands belonged to said estate. Minnie C. Hunt, as executrix of the estate of Percy C. Hunt, deceased, appeared in said matter in opposition to said petition, claiming that said lands belonged to the estate of said Percy C. Hunt. In the probate court, and again on appeal in the circuit court, it was ordered that the estate of Percy C. Hunt had no interest in said lands. Minnie C. Hunt, as executrix of the latter estate, appeals.
The lands in question consist of a farm which belonged to Enos East at the time he died testate in March, 1905. His last will and testament, which was executed in 1892 and duly admitted to probate after his death, was as follows:
“I Enos East of Calvin Cass County Michigan do hereby Make Ordain and publish this My Last Will and Testament that is to Say after all My Lawful Debts are paid and discharged the Residue of My Estate both personal and Real I Give and Bequest as follows to My Wife Iantha C. East all both personal and Real to have and hold as her own during her lifetime. After her Death to be divided as follows. One Hundred Dollars to the Trustees of Birch Lake Cemetry to be kept as a permanent fund for which the Interest is to be used in keeping Said Cemetry in Repair. And the further Sum of fifty Dollars to Each of My Brothers and Sisters for the purpose of Buying a Bible or Some other Relic the Remainder of My Estate I Give and Bequeath to Percey C. Hunt the Boy I Raised.
“further, in case he dies Without leaving direct Heirs then the Said Estate to be divided Equally between My Brothers and Sisters
“hereby Revoking all former Wills by Me Made.”
Percy C. Hunt died without leaving any issue or lineal descendants. His heirs were his surviving spouse and two sisters. Are they his “direct heirs” ? The present case involves construction of the meaning of said words “direct heirs” in the above will. Enos East died childless, leaving a widow and several brothers and sisters, all since deceased. During his lifetime he and his wife took in and raised a young boy by name Percy C. Hunt, the remainder-man named in his will.' According to the inventory, Ms estate consisted of $838.25 personal property, and a farm then appraised at $4,625. When the administration of his estate was closed in October, 1905, and the then-administrator with will annexed was discharged, the probate court entered an order assigning the residue of his personal property equally to his surviving widow Iantha C. East and Percy C. Hunt, and assigning said real estate “according to the’ terms of said will,” without construing the will as to who were entitled to the same. The case is now before us to determine who is now entitled to said farm.
Apparently no controversy arose as to the ownership or right to possession of said real estate until after the death of Percy C. Hunt in 1947. In the meantime, following the death of Enos East and the closing of his estate in 1905, his surviving widow Iantha C. East continued to live on and occupy the farm, apparently as a life tenant under his will, until her death in 1928. Percy C. Hunt had married Minnie in 1892, during the lifetime of Enos East and about 3 months after Enos East had executed his will. There is evidence that Percy C. Hunt and his wife lived on and continued to occupy the said farm after the death of Iantha in 1928 until the death of Percy C. Hunt in 1947. His surviving widow Minnie C. Hunt has since continued to occupy said farm up to the present time. Thus the farm has been in the possession of Iantha, the widow of Enos’East, Percy C. Hunt, named in his will, and Minnie C. Hunt, the surviving widow of Percy C. Hunt named in his will as sole beneficiary, from the death of Enos East in 1905 up to the present time.
Percy C. Hunt died testate in 1947 without leaving issue surviving. By his will, he left all his property to his wife Minnie C. Hunt. He never had a child, and his surviving “heirs” who would- take his property as such, had he died intestate, would be his sur viving widow Minnie C. Hunt and two sisters.. CL 1948, § 702.80 (Stat Ann 1943 Bev § 27.3178[150]). Under the proviso in the concluding paragraph in the will of Enos East, the testator directed that if Percy C. Hunt died “Without leaving direct Heirs,” his real estate, the farm here in question, should “be divided Equally between My Brothers and Sisters.” Under that provision in the will of Enos East, the petitioner herein, a son of one of the brothers of Enos East, claiming that “direct heirs” is limited to “lineal descendants,” now claims that the estate of Percy C. Hunt has no interest in said lands.
At the time of the death of Percy C. Hunt in 1947, there were no brothers and sisters of Enos East then in existence. The last of them had died before 1917. They are, however, survived by numerous issue, one of whom, Clarence J. East, is the petitioner in the instant case.
The will of Percy C. Hunt was duly admitted to probate and the administration of his estate is still pending in probate court. His surviving widow Minnie, the appellant here, and the sole devisee under his will, was also named as the executrix. She inventoried the farm in question as a part of the assets of his estate. As hereinbefore indicated, Clarence J. East, son of one Elwood East, a deceased brother of Enos East, petitioned the probate court to strike the said real estate from the inventory of the Percy C. Hunt estate, on the ground that the widow and sisters of Percy C. Hunt were not his direct heirs; and to direct that the property belonged to the heirs of the deceased brothers and sisters of Enos East. In other words, to direct that Minnie C. Hunt, the surviving widow of Percy C. Hunt, and his two surviving sisters are not the direct heirs of Percy C. Hunt; and that in the absence of such direct heirs, the estate of Percy C. Hunt does not have the fee in said farm, under the will of Enos East.
The probate court, and the circuit court on appeal, held that “direct heirs” means lineal descendants, kindred by blood, and ordered that the real estate be stricken from the inventory of the estate of Percy C. Hunt. In the circuit court, judgment was entered .stating that said lands “reverted” to the estate of Enos East on the death of Percy C. Hunt without “direct” heirs; and that Minnie C. Hunt has no right, title or interest therein. Prom such judgment, Minnie C. Hunt appeals, both as an heir and the devisee of Percy C. Hunt and the executrix of his estate.
At the outset, our primary consideration must be to determine the intent of the testator Enos East. It is plain, from its appearance, that his will was not drawn by one skilled in the preparation of wills. The record shows that it was prepared by a neighboring farmer, the testator’s brother-in-law, who also was a justice of the peace. One of the sisters of the testator was one of the two witnesses to the will, by which act she deprived herself of any possible right to share in the farm in question as one of the testator’s “brothers and sisters.” CL 1948, § 702.7 (Stat Ann 1943 Rev § 27.3178[77]). Obviously, the testator first indicated his primary consideration was to devise the remainder of his estate (the farm) to Percy C. Hunt. He concludes the first paragraph of his will as follows:
“the Remainder of My Estate I give and Bequeath to Percey C. Hunt the Boy I Raised.”
Apparently as a secondary consideration, he adds:
“further in case he dies Without leaving direct Heirs then the Said Estate to be divided Equally between My Brothers and Sisters.”
That addition cannot now be literally complied with, inasmuch as there were no brothers or sisters surviving at the time of the death of Percy C. Hunt in 1947, all having died long before the death of Iantha C. East, and at least 30 years before the death of Percy C. Hunt. Does any rule of law require that the will be construed to mean that the testator’s intent was to leave the farm to the issue of his deceased brothers and sisters? It is their claim, as advanced by counsel for the appellee, that Minnie C. Hunt, not being a “direct” heir of her deceased husband Percy C. Hunt, leaves him without any “direct” heir within the meaning of that term in Enos East’s will, wherefore the condition upon which his fee title depends has not been met. Counsel apparently overlook the fact that Percy C. Hunt was survived by two sisters, and that fact apparently was also overlooked or ignored by the trial court. The precise question we are asked to solve, and on which the decision of the lower court depended, is whether Minnie C. Hunt, except for her husband’s will, would inherit any interest in the real estate of Percy C. Hunt as a “direct” heir. The question has not been passed upon in this State. However, the statute (CL 1948, § 702.80 [Stat Ann 1943 Rev § 27.3178 (150)]) makes the surviving widow an heir at law of her husband, and this Court has so held. Hall v. Williamson, 304 Mich 657. Is she a “direct” heir?
In Re Shumway’s Estate, 194 Mich 245 (LRA 1918A, 578), the husband in his will devised his real estate to his “legal” heirs. The Court, holding that his surviving spouse was included, said:
“The common law touching descent of estates has never obtained in Michigan. The statute of descent' is and always has been the only existing law on that subject in this State.”
Until after the death of Percy C. Hunt in 1947, all of the parties interested in the title to this farm seem to have considered that upon the death' of Enos East in 1905 the fee to this farm vested in Percy C. Hunt, subject to a life estate given to the testator’s widow. Iantha C. East and Percy C. Hunt have occupied the farm for upwards of 40 years. The claim of the petitioner, a son of one of Enos East’s deceased brothers, would defeat such vesting of the title solely upon the theory that Percy C. Hunt had left no “direct” heirs at his death in 1947. Such a construction would be contrary to the settled policy of the law. In the Shumway’s Estate Case, supra, the Court said:
“This Court has more than once held that the policy of our statute is in favor of vested rather than contingent or postponed estates, and only plain, unambiguous language by the testator will prevent application of that rule in construing a will. Rood v. Hovey, 50 Mich 395; Hitler v. Hitler, 104 Mich 274, 279; Clark v. Mack, 161 Mich 545 (28 LRA NS 479); Van Gallow v. Brandt, 168 Mich 642, 649; Menard v. Campbell, 180 Mich 583 (Ann Cas 1916A 802); Ensign v. Dunn, 181 Mich 456.”
Appellee relies on In re Spier’s Estate, 224 Mich 658. In that case Alice V. Spier devised certain real estate to her husband, who predeceased her. The question presented was, what became of the devise to the husband. The lower court concluded that it passed to the deceased husband’s issue, relying on CL 1915, § 13793, which provides:
“When a devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will, in the same manner as the devisee or legatee would have done, if he had survived the testator; unless- a different disposition shall be made or directed by the will.”
In reversing the judgment of the circuit court, this Court held that the husband was not an “other relation” of his wife, within the meaning of the above statute. The Spier Case is obviously distinguishable. “Other relation” and “direct heirs” are plainly not synonymous terms.
In construing a will, the Court will favor a construction which conforms more nearly to the general law of inheritance.
“In the construction of a will the intention of the testator is the important thing to determine through adoption of rules of construction applicable to the peculiar facts and circumstances of each case.
“The substance of testator’s intent as drawn from the whole will is to be considered rather than the form of expression or meaning of a word or phrase found in it.
“The law favors that construction of a will which will distribute the testator’s estate most nearly in accordance with the statutes of descent and distribution and also favors the vesting of estates.” Gardner v. City National Bank & Trust Co. (syllabi), 267 Mich 270.
In Smith’s Petition, 291 Pa 129 (139 Atl 832), the will under consideration by the court contained the following provision:
“In case of the death of any of the above named grandchildren before receiving the sum of $100 the same revert to my direct heirs.”
"While the conclusion in that case rested upon the intention of the testator as expressed by the term “revert,” the conclusion reached by the court was expressed in the following language:
“Finally, this is not a case where the assumption, sometimes made, that children, or heirs at law, were the special care of a devisor, can be allowed controlling effect, for the will shows that this devisor had in mind the desire to benefit her grandchildren quite as much as to care for her children; and the fact that, at one point of the instrument, testatrix refers to the latter as her ‘direct heirs’ has no significance as indicating a special, or exclusive, care for them, since by that expression, as used, she evidently meant no more than ‘first takers.’ ”
Applying the above conclusion to the case at bar, in considering the intent of the testator as to who would be the “direct” heirs of Percy C. Hunt, under the law of descent of real estate in this State his surviving widow Minnie 0. Hunt and his two surviving sisters would be the “first takers” of his estate.
In 47 Am Jur, p 802, the rule is stated as follows:
“Thus, the use of the term ‘lawful,’ ‘legal,’ ‘remaining,’ ‘surviving,’ ‘nearest,’ ‘like,’ ‘first,’ ‘then,’ ‘next,’ and ‘next legal,’ preceding the term ‘heirs’ or ‘heirs of the body,’ is mere surplusage and does not restrict the ordinary meaning of the word ‘heirs,’ and the words ‘and their heirs and assigns forever’ will not change their effect.”
In construing the will of Enos East, we are not unmindful of the fact that the testator first granted the fee of his real estate to Percy- C. Hunt, and then concluded by attempting to limit that fee by a later clause contained in a separate paragraph.
“A will in terms giving to testator’s wife all his property, ‘to be hers absolutely,’ gives an absolute estate, notwithstanding the succeeding repugnant provision, ‘providing, however, that if at her death any of said property be still hers, then the residue still hers shall go to my, not her, nearest heirs.’ ” Moran v. Moran (syllabus), 143 Mich 322 (5 LRA NS 323, 114 Am St Rep 648).
. “Where an estate in fee is devised, a subsequent provision attempting to control the disposition of such uncertain portion of the devised estate as might remain after the death of the original devisee is void for repugnance to the devise in fee.” Gibson v. Gibson (syllabus), 213 Mich 31.
The intent of the testator is fairly discernible from the circumstances of the case. He had not adopted Percy C. Hunt so as to make him a legal heir. Percy C. Hunt married Minnie shortly after the execution of the will in 1892. Minnie C. Hunt took care of Enos during his last sickness. For about 13 years Enos East had ample opportunity, if he so desired, to exclude Minnie C. Hunt from taking any interest in his- farm as. an heir at law of his chosen beneficiary Percy C. Hunt. Nothing in the record indicates any reason why Enos East should have intended to exclude Percy C. Hunt’s wife from benefiting by the devise of his farm to her husband Percy C. Hunt. , It is quite improbable that it was the intent of Enos East that his unknown and unascertained, perhaps unborn, nephews and nieces, children of his brothers and sisters, should succeed to the title of the farm, more than 40 years after his death and some 30 years after the death of his .brothers and sisters, in preference to the widow of Percy C. Hunt. We are not in accord with the view taken by the lower court, that the testator intended by the use of the term “direct heirs” to exclude the Surviving spouse of Percy . C. Hunt. “Direct heirs” is not limited to lineal descendants as appellee contends. . .
We conclude that under the circumstances of this case, the estate of Percy C. Hunt has fe'e titie to the farm in question. Under the will of Percy C. Hunt which has been admitted to probate, the title passes to the appellant Minnie C. Hunt. .
Reversed and remanded for entry of judgment for appellant Minnie C. Hunt in consonance with this, opinion, .and for remand to the probate court for further appropriate proceedings. Costs to appellant.
Sharpe, C. J., and Bushnell, Reid, North, Butzel and Carr, JJ., concurred with Boyles, J.
Dethmers, J., concurred in the result.
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Butzel, J.
Willard Paxson, plaintiff, brought suit for salary he claimed was due him for the period from January 15, 1947, to August 1, 1947. He contends that defendant Cass county road commission employed him for a period of 1 year from August 1, 1946, and that he was wrongfully discharged and not permitted to work after January 15, 1947. He also claimed additional damages for shame, humiliation, et cetera, caused by the wrongful discharge. A jury awarded him damages in the sum of $1,818.75. This amount exceeded the sum of the wages alleged to be due him for the balance of the year during which he was not permitted to work. Defendant-moved for a new trial, alleging errors claimed on this appeal, including the claim that the trial judge er roneously charged the jury that it could find a reasonable amount to which plaintiff would be entitled because of shock and bewilderment in being discharged. In passing on the motion the trial judge held this charge was error, but denied the motion on the condition that the plaintiff file a remittitur of $356.25. Plaintiff filed the remittitur, reducing the amount of the judgment to $1,462.50, the balance of the salary claimed. Defendant appeals.
As one of the appellant’s main claims of error is that the verdict was against the great weight of the evidence, a very brief statement of facts becomes necessary. Plaintiff was first employed by defendant on July 5, 1928. On July 8, 1929, he was employed as superintendent of maintenance by the defendant. The official records show that the appointment was for 1 year, beginning July 8, 1929, at 5 dollars per day and tbe use of a county car; that he accepted the appointment and h.as continued in the employ of defendant until his discharge on January 11, 1947, effective January 15, 1947, a period of over 17 years. There is no testimony that plaintiff did not properly perform his duties as a superintendent of maintenance. However, difficulties did arise in the spring of 1946 when LaVerne Hendricks was appointed county highway engineer. Plaintiff was appointed in accordance with CL 1948, § 224.9 (Stat Ann § 9.109), which provides for the appointment of a competent superintendent, skilled in road building, who may or may not be an engineer and who under the direction of the board shall supervise all road building operations in the county. Mr. Hendricks was appointed in accordance with CL 1948, § 224.10 (Stat Ann 1947 Cum Supp § 9.110), which provides that the board of county road commissioners shall employ a competent highway engineer who shall make all surveys ordered by the board, prepare plans and specifica tions for all roads, bridges and culverts, and shall exercise such general supervision over all construction as will insure that the plans and specifications are strictly followed. Plaintiff and Hendricks seem to' have had difficulties from the start. Possibly the main difficulty was due to the inaction of the Cass county road commission which did not define or limit plaintiff’s duties or authority, nor inform him of the' extent of his authority or that of Hendricks as county highway engineer, after the latter’s appointment.. Even at the trial the members of the county road, commission were not wholly in accord as to the respective duties of plaintiff and Hendricks. The testimony shows that at most they had merely told the plaintiff to co-operate with Hendricks, but did not inform plaintiff that the engineer was to have control over maintenance work as well as all other operations as claimed by Hendricks to have been a condition of his hiring. There is sufficient testimony to fully justify a jury in finding that the plaintiff was wrongfully discharged, provided he had a contract for a year as he claims.
Appellant contends that there was no proof of a binding contract for a definite term of 1 year and, therefore, a verdict should have been directed for the defendant. The resolution of defendant shows-that on July 8, 1929, plaintiff was hired as maintenance superintendent for a term of 1 year and has' continued as such until his discharge in 1947. As we said in Sines v. Wayne County Superintendents of the Poor, 58 Mich 503:
“The contract had been previously made for a year’s service, and under that contract defendant had gone on from year to year, and in such cases, if nothing is said or done by either party at the end of the year to terminate it, but on the contrary, the person performing service is allowed to continue on without objection, the facts raise the presumption from which the jury have found that both parties have assented to the contract continuing in force for another year.”
To like effect see: Laughlin v. School District No. 17 of the City of Jackson and Township of Blackman, 98 Mich 523, and Reynick v. Arlington & Curtis Manfg. Co., 179 Mich 630 on page 643, in both of which cases the Court sustained the rule set forth in Sines v. Wayne County Superintendents of the Poor, supra.
The record shows that plaintiff’s salary was increased from time to time. In resolutions in 1940 and 1941, it was fixed at an annual salary. While on May 11, 1942, the record shows that the salary was fixed at $200 per month, but this evidently was an increase in salary because on October 1,1941, his salary was fixed at $2,200 per year. A resolution dated as of March 22, 1943, shows that his salary was raised $100 “per year.” The fact that it was not until August 5,1946, that the salary was fixed for the fiscal year beginning August 1,1946, at $2,700 per year did not change the hiring by the year as theretofore.
Plaintiff in his declaration presents some inconsistent statements. He first states that the salary was fixed by an agreement entered into on July 29, 1946, for a term of 1 year effective August 1, 1946, but then he corrects it in the following paragraph by stating that the agreement was made August 5, 1946, when his salary was fixed, in accordance with the resolution, at $2,700. On July 29, 1946, when general salaries were raised no mention was made in regard to plaintiff’s employment, but in the resolution of August 5, 1946, when there was a reconsideration of salaries of others that were fixed by the meeting of defendant commission on July 29, 1946, plaintiff’s salary was fixed at $2,700 per year, the mew schedule to take effect as of August 1, 1946. Plaintiff relies upon this resolution as well as the fact that in 1929 he was originally hired for 1 year and continued from year to year. The question of the period of employment is one of fact as to what was the intent of the parties. When not expressed it must be found from the circumstances of each case. Mere stating of the salary at an annual rate is not sufficient to support a hiring for a period of 1 year, but it is a factor that must be considered with other relevant facts. Inasmuch as the resolution of August 5, 1946, fixed plaintiff’s salary by the year, and he had been hired by the year, theretofore, we believe there is sufficient testimony for the jury to come to the conclusion that plaintiff continued to be hired by the year the same as he had been in the resolution of July 8,1929.
Defendant contends that inasmuch as the contract, according to the first paragraph of plaintiff’s declaration, was made July 29, 1946, and was not to end until August 1,1947, it was not to be performed within one year, it was void under the statute of frauds. The record shows that the resolution adopted August 5, 1946, providing for a new annual salary effective August 1, 1946, was relied on by plaintiff at the trial. The resolution of July 29, 1946, did not provide for plaintiff’s salary. Thus the only contract shown by the evidence would be performed within a year and is valid.
Defendant claims, however, that it was a unilateral contract and that there was no agreement on the part of plaintiff to work for a year; that the contract was not mutual and comes within the rule set forth in Wilkinson v. Heavenrich, 58 Mich 574 (55 Am Rep 708). In Valentine v. King Manfg. Co., 260 Mich 601, where the facts slightly differ, we held as follows :
“We think the contention of the defendant as just above stated in the opinion of the trial court is not tenable. Plaintiff was present and took part in the directors’ meeting at which the quoted resolution was passed. Plaintiff’s services for the ensuing* year were rendered by him under this resolution for his employment. Under such circumstances defendant’s resolution must be construed as an offer to employ plaintiff, and the services subsequently rendered by him and accepted by defendant constitute an acceptance of the offer.”
Under the facts of the instant case, we believe that the resolution continuing to hire plaintiff at an annual salary and his hiring in the past by the year or a yearly salary having been paid him in the past and his continuing to work for defendant constitutes an acceptance of the offer. As the jury found there was such a contract and such finding is supported by the evidence, there is no lack of mutuality.
Appellant claims on appeal that the court erred in restricting the cross-examination of plaintiff regarding his income after his discharge and also in improperly refusing to instruct the jury regarding* plaintiff’s duty to seek other employment. The record, however, shows that plaintiff testified as follows :
“I have worked since I was discharged. I have farmed and I’m a real estate salesman. I have made some money since I was discharged but not very much. Probably I haven’t made any money. No one has paid me anything and I haven’t sold anything* to bring me a commission either.
“Q. No money came in at all?
“A. Well—
“Mr. James: Now I object to that. If money came in off the farm that is immaterial. Money for real estate commissions earned during the day time might accidentally be admissible bnt certainly not farm income.
“The Court: Objection sustained.”
The question objected to was “No money came in‘at all?” This was too general a question. Plaintiff did some farming, from which he did not realize very much. He, however, was not asked whether he had been regularly employed on the farm. No further questions were asked in regard to employment. We find no reversible error.
Error is claimed on the ground that plaintiff should have filed a written claim before the county board of supervisors as a condition precedent to bringing suit and that upon its disallowance his remedy was to bring suit against the county within 20 days (CL 1948, §§‘46.71, 46.72 [Stat Ann §§ 5.521, 5.522]). This question was not raised in the pleadings or during the trial of the case. The law distinctly provides that the board shall be known as the board of county road commissioners and “by that name may sue and be sued.” CL 1948, § 224.9 (Stat Ann § 9.109).
We have examined other questions raised and find not sufficient merit in them so as to require discussion. The improper inclusion of damages to plaintiff’s feelings caused by his summary discharge was corrected by the remittitur ordered by the court and accepted by plaintiff. The error was thus cured.
The judgment is affirmed, with costs to plaintiff.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred.
CL 1948, § 566.182 (Stat Ann 1947 Cum Supp § 26.922). — Reporter. | [
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Butzel, J.
On March 11, 1947, Vendelin Faculak, defendant, upon conviction of nonsupport of his wife and minor child, and after examination by and report of the probation department, was sentenced to 30 days in jail and to a period of probation for 3 years on proper support bond in the sum of $1,000 being given. He undertook to have a bond filed with his father Charles Faculak as surety, who, instead of justifying on the bond, deposited $1,000 in cash, the amount prescribed by the court. The condition of the bond ordered by the court was that defendant pay to the county clerk the sum of $20 per week to. be turned over to defendant’s wife for the support of herself and children (another minor child having been born after the commencement of the cause). After serving the 30-day term, defendant was released on the filing of the cash bond. He, however, continued in his failure to support his wife and children. Some time later when proceedings were brought to revoke the probation, he paid $300 and the probation was continued. The $300 was not paid from the $1,000 on deposit with the clerk. Charles Faculak was served with a copy of all papers in these proceedings.
The delinquency of defendant, however, continued, and on October 28, 1947, the court revoked and set aside the probation order, and sentenced defendant to a prison term of not less than 1 and not more than 3 years. On January 29, 1948, the prosecuting attorney filed a petition under PA 1931, No 328, § 161 (OLS 1940, § 17115-161, Stat Ann § 28.358), as amended by PA 1947, No 142 (CL 1948, § 750.161 [Stat Ann 1947 Cum Supp § 28.358]), to collect on the cash bond. Charles Faculak was again served with all papers. The court granted the petition and ordered the clerk to pay the sum of $620 to defendant’s wife for the support of herself and children, for past delinquencies and also the further sum of $20 a week during the continuance of such delinquency, all from the $1,000 cash deposited with the clerk.
Charles Faculak is the sole appellant. He concedes that $380, the amount due when the petition for forfeiture was filed should be paid from the $1,000 deposited. He, however, contends that the court erred in ordering the payment of the balance of the $1,000.
Appellant claims that inasmuch as the acts complained of occurred prior to the enactment of PA 1947, No 142, proceedings under this act were improper and resort only should have been had to PA-1931, No 328, § 161. The amendments to the 1931 act as far as applicable to this case are procedural and apply to the instant case.
Appellant further claims that proper proceedings should have been brought against him as surety instead of the ordering of the forfeiture of the cash bond. He shows no authority of how a court can accept a bail or support bond without a justification by a personal surety. The cash was accepted in lieu of the justification and the bond thereupon became a cash bond. The conrt ordered the disposition of the cash in accordance with CL 1929, § 17177 (Stat Ann § 28.902). We agree with the citation of appellant’s counsel as to the distinction between the rights of paid and gratuitous sureties. In the instant case there was a sufficient consideration moving to appellant when by giving a cash bond, he effected defendant’s release.
Appellant further claims that the State is collecting twice, first on the bond, and second by the imprisonment of defendant; that the latter cannot support his wife and children because of his imprisonment. The cash bond was given for support. It was not conditioned upon its being terminated in case defendant because of his failure to support his wife and children should be imprisoned. The im-prisonment did not relieve him from his duty to support his wife and children.
In People v. Brenner, 235 Mich 408, where defendant was convicted of bastardy, the Court said:
“The fact that he had been imprisoned did not relieve him of the obligation to pay the amount ordered by the conrt. It did not pay the debt. A fieri facias could be issued against his goods and chattels.”
Also see Minnehaha County, ex rel. Willadsen, v. Willadsen, 69 SD 412 (11 NW2d 55), where the surety was held liable after the husband’s death on a bond of $1,000 for the support of the husband’s wife and children on the ground that there was an unconditional promise to pay in the event of the husband’s default.
The order of the trial conrt is affirmed.
Sharpe, C. J., and Bushnell, Boyles, Reid, North, Dethmers, and Carr,. JJ., concurred.
For changes in the 1947 act from the section of the 1931 act, see Stat Ann 1947 Cum Supp § 28.358.
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Swainson, J.
Plaintiffs herein brought action as the result of an accident between a vehicle operated by Mary Sliter and an automobile owned by defendant Cobb and driven by defendant Sims. Plaintiffs filed suit on March 27, 1969, asserting liability on the part of defendant Benton Harbor News Palladium. They contended that defendant Sims was driving defendant Cobb’s vehicle at the request of Cobb, who was delivering newspapers pursuant to an agreement between Cobb and The Benton Harbor News Palladium; that at the time of the accident defendant Cobb was an employee of the Palladium; that the accident occurred in the course and scope of his employment and, thus, defendant Benton Harbor News Palladium was liable for plaintiffs’ injuries.
On May 18, 1970, defendant Benton Harbor News Palladium (hereinafter referred to as the News) filed motion for summary judgment, asserting that Cobb was an independent contractor and, therefore, defendant News could not be held liable. An amended motion for summary judgment was filed on May 27, 1970, which motion was granted by the trial court on July 13, 1970. The court held that defendant Cobb was an independent contractor, not an employee of the News. The Court of Appeals affirmed the grant of summary judgment basing its opinion on Gall v Detroit Journal Co, 191 Mich 405 (1916). Judge Levin dissented in a separate opinion. 36 Mich App 471. We granted leave to appeal. 386 Mich 780.
Both parties agree on the issue raised on this appeal. The agreed issue is: Whether the evidence presented in connection with defendant News’ motion for summary judgment, when viewed most favorable to plaintiffs, creates a question of fact as to whether defendant newspaper maintained sufficient control over its newscarrier, Cobb, to warrant a jury finding that Cobb was, under the traditional test of employment, an employee of defendant News?
As stated, the majority opinion of the Court of Appeals in affirming the grant of summary judgment relied on Gall v Detroit Journal Co, supra. In that case plaintiff was also injured in an automo bile accident by a person delivering newspapers for the Detroit Journal Company. The jury awarded $500 in damages; the Supreme Court reversed, holding that under the facts of the case the newspaper deliveryman was an independent contractor and not an employee of the newspaper. Our Court stated (pp 408-409):
"The contract between the Detroit Journal Company and Rebtoy constituted a very plain and simple arrangement for an employment of an equally plain and simple character. Omitting the provisions relating to default or failure in performance, it amounted to just this: Rebtoy was to deliver the papers to such persons, at such places, and on such time as the company should from day to day designate. Such delivery was the result to be obtained. And Rebtoy was to effect such delivery and obtain such result by any means and by any conveyance and in any way he saw fit. He could make the deliveries in person, or through others employed by him. It is shown by the evidence that those making deliveries for the company did occasionally employ others to do the work. He could use a horse, an automobile, or carry the papers on foot, provided he got them to the right persons, at the right places, and upon time. So far as the terms of the contract are concerned Rebtoy was certainly an independent contractor and not a servant. One whom the employer does not control, and has no right to control, as to the method, or means, by which he produces the result contracted for is an independent contractor.”
The Court in Gall examined the contract there involved and found that under its terms Rebtoy, the newspaper deliveryman, was an independent contractor and not an employee. Thus, it is clear that Gall was decided on the basis of the facts in that case and did not set down a general rule for the liability of newspaper deliverymen.
While it is often difficult to draw a precise line between an independent contractor and an em ployee, our Court has followed the generally accepted view that the test is one of control. In Marchand v Russell, 257 Mich 96, 100-101 (1932), the Court stated:
"This and many other courts have frequently been called upon to decide whether, on the rendition of service by one person to another, the relation of master and servant or that of independent contractor was created by the employment. In Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231, 233 [1921], the following from 26 Cyc. p. 1546, was quoted and said to epitomize the holdings of this court upon the question:
" 'An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Generally the circumstances which go to show one to be an independent contractor, while separately they may not be conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the agreement to pay a fixed price for the work, the employment of assistants by the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.’ ”
Moreover, when a motion is made for summary judgment, it will not be granted where there are material issues of fact raised on the pleadings. Kaminski v Standard Industrial Finance Co, 325 Mich 364, 369 (1949); Klug v Berkley Homes, Inc, 334 Mich 618 (1952).
Defendant News cites several cases in support of its view that as a matter of law Cobb was an independent contractor and not an employee. It relies on Mirto v News-Journal Co, 50 Del 103; 123 A2d 863 (1956); Peairs v Florida Publishing Co, 132 So 2d 561 (Fla App, 1961); and Bohanon v James McClatchy Publishing Co, 16 Cal App 2d 188; 60 P2d 510 (1936).
Plaintiffs rely on several cases decided since Gall, and cited in Judge Levin’s dissenting opinion, for the view that there was an issue of fact raised in this case. See Eber v Bauer, 252 Mich 571 (1930); Marchand v Russell, supra; Cooper v Interstate Motor Freight Co, 264 Mich 131 (1933); Lewis v Summers, 295 Mich 20 (1940); Brinker v Koenig Coal & Supply Co, 312 Mich 534 (1945); and Buehler v Beadia, 343 Mich 692 (1955).
It is clear that in this area the result must be based on the particular facts of each case, and all of the cases cited, while properly stating the general rule, are not dispositive in this situation. Thus, we must look closely to the facts of this case to determine whether plaintiffs have raised an issue of fact as to whether Cobb was an employee of defendant News, or was an independent contractor.
We believe there were sufficient facts to make the grant of summary judgment improper. The following facts from which a jury could have found evidence of an employer-employee relationship are contained in the record presented to us:
1) Defendant News owned the route and leased it to Cobb. The News reserved the right to cancel the agreement without notice for "good faith reason or reasons”. When Cobb informed the News he intended to quit, it required him to allow a replacement from defendant News’ office to ride with him during the last two weeks he worked for defendant News, so that the replacement could learn the route. In Gall, Rebtoy, the deliveryman, owned his route and sold it to another party (191 Mich 405, 408).
2) Cobb was forbidden by his contract with defendant News from delivering any other publication on the route without written authorization of the News. No such restriction appeared in the agreement in the Gall case.
3) When Cobb experienced difficulty (which occurred several times) agents of defendant News rode with him in an effort to iron out the problems.
4) The News directed the manner in which the newspapers were to be rolled, banded and deposited. This clearly involves control over the method of delivery (which is an indication of an employer-employee relationship).
5) Cobb was required to follow the News’ billing procedure, credit policies, and a prescribed method of bookkeeping.
6) Cobb was permitted to cancel a customer for nonpayment; he was prohibited by the News from terminating a customer for any other reason without first consulting and receiving permission from defendant newspaper.
7) Further, the route lease provided that Cobb was to receive from the News a mileage allowance of seven cents per mile for servicing the route.
In view of the above, we believe that Gall is distinguishable on its facts and that the Court of Appeals erred in holding Gall was controlling in this case. Our holding herein does not mean, however, that all newsboys are employees rather than independent contractors, or even that Cobb was an employee in this case. We merely hold that under the facts of this case plaintiffs raised an issue of fact which made the grant of summary judgment improper.
The judgment of the Court of Appeals is reversed and the case is remanded for new trial. Costs to plaintiffs.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Williams, JJ., concurred with Swainson, J.
Black, J., concurred in the result.
The lease agreement provided in part:
"(c) That (he) will do (his) utmost to promote and expand the subscription list on the route described above; and that (he) will deliver no other publications on said route except as may be authorized in writing by the Lessor.”
The contract in the Gallease is found at 191 Mich 406-407. | [
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Williams, J.
The issue in this case is whether defendant was deprived of his right to a speedy trial under the new rule set forth in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972) which reads:
"A balancing test necessarily compels courts to approach speedy trial on an ad hoc basis. * * * Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant.” 407 US 514, 530.
I. FACTS
The facts involve a time sequence from September 4, 1968, to June 15, 1970. During this time, defendant was charged with two other crimes, one before and one after the armed robbery of this case.
On September 4, 1968, a warrant was issued against defendant for entering without breaking (#1). On November 1, 1968, defendant was arraigned and released on a personal bond of $1,000.
On January 5, 1969, defendant was arrested on a charge of armed robbery (#2 and the instant case) and bond was set at $3,000. On January 13, 1969, the preliminary examination was waived and the bond reduced to $2,000 which defendant met. He was then released. On January 22, 1969, defendant appeared for arraignment on the information.
On August 21, 1969, the defendant failed to appear in court on the entering without breaking charge (#1), therefore his bond was forfeited and a capias issued. On August 25, the defendant appeared in court on the entering count (#1). At this time the capias was set aside, bond reinstated and the trial adjourned to January 26, 1970.
On September 15, 1969, the defendant was ar rested for a third time on a different count of breaking and entering (#3). He was unable to make bond and was incarcerated in Wayne County Jail.
On October 28, 1969, defendant failed to appear on robbery armed charge (#2) and a capias was entered. He was in a different courtroom that day on a motion to reduce bond on the breaking and entering charge (#3).
On October 29, 1969, a hold was stamped on the robbery file (#2) with number and reference to the breaking send, entering file (#3).
On March 4, 1970, defendant was tried on breaking and entering (#3) and on March 9 was found guilty. He was sentenced on March 24, 1970, to 4 to 5 years.
On April 6, 1970, trial on the armed robbery charge (#2) commenced, 15 months and 1 day after arrest. Defendant’s motion, to dismiss for failure to grant a speedy trial was denied. On April 7, 1970, defendant was found guilty of robbery not armed and, 2 days later, was sentenced to 7-1/2 to 15 years.
On June 15, 1970, a motion by the prosecutor to dismiss the entering without breaking charge (#1) was granted.
Defendant appealed the instant robbery (#2) conviction which was affirmed by the Court of Appeals with an amendment to the sentence to reflect a credit of 217 days on his sentence. 36 Mich App 400 (1971). We granted leave to appeal March 3, 1972.
II. THE EMERGENCE OF A SPEEDY TRIAL STANDARD
The individual’s right to a speedy trial is secured by Const 1963, art 1, § 20:
"In every criminal prosecution, the accused shall have the right to a speedy and public trial * * * ”
and US Const, Am VI:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * * .”
However, the people of the state have an equal concern in a speedy trial to act as a deterrent to potential criminals. The Michigan Legislature has enacted:
"The people of this state and persons charged with crime are entitled to and shall have a speedy trial * * * » MCLA 768.1; MSA 28.1024.
The complementary nature of the individual right and the state concern was well said in 57 Colum L Rev 846 (1957):
"The importance of prompt trial of criminal offenses in a democratic society derives from the needs of maintaining public order and preserving individual freedom. The social interest in security demands speedy trial, for this facilitates both effective prosecution of criminals and greater deterrence to potential criminals. At the same time, society, in its concern for freedom and for the individual life, seeks to prevent prolonged prosecutions which may develop into persecutions.”
The parameters of this right have until recently not been too fully spelled out by the United States Supreme Court or this Court.
Prior to Barker, the United States Supreme Court in Beavers v Haubert, 198 US 77, 87; 25 S Ct 573, 576; 49 L Ed 950, 954 (1905) stated that: "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” These circumstances were defined and limited by a later opinion, Pollard v United States, 352 US 354, 361; 77 S Ct 481, 486; 1 L Ed 2d 393, 399 (1957) to "purposeful and oppressive” delays. The United States Supreme Court in Smith v United States, 360 US 1, 10; 79 S Ct 991, 997; 3 L Ed 2d 1041, 1048 (1959) stated that "the essential ingredient is orderly expedition and not mere speed.” In United States v Ewell, 383 US 116, 120; 86 S Ct 773, 776; 15 L Ed 2d 627, 631 (1966) the Court denied that a 19-month delay was unconstitutional per se and stated that the right to a speedy trial was relative. And in United States v Marion, 404 US 307, 325; 92 S Ct 455, 465-466; 30 L Ed 2d 468, 481 (1971) the Court stated that: "To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.”
The Court in Dickey v Florida, 398 US 30; 90 S Ct 1564; 26 L Ed 2d 26 (1970) found a violation of the right where no reason was found for delaying trial for 7 years in light of defendant’s diligent and repeated efforts to secure a prompt trial. There was also evidence of actual prejudice to the defendant in the death of two potential witnesses, unavailability of another, and the loss of police records. Mr. Justice Brennan concurring in Dickey set out at length the factors to be considered in determining whether the speedy trial right had been violated.
"It appears that consideration must be given to at least three basic factors in judging the reasonableness of a particular delay: the source of the delay, the reasons for it, and whether the delay prejudiced interests protected by the Speedy Trial Clause. ” 398 US 30, 48.
Justice Brennan concluded his remarks by leaving the door ajar for further action by the United States Supreme Court. He stated:
"These comments provide no definitive answers. I make them only to indicate that many — if not most — of the basic questions about the scope and context of the speedy-trial guarantee remain to be resolved.” 398 US 30, 56.
The United States Supreme Court responded to Justice Brennan’s remarks by giving careful consideration to the speedy trial problem in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). Here, petitioner Barker was not brought to trial for more than five years (including ten months in jail) after he had been arrested. The prosecution obtained numerous continuances for such reasons as the brief illness of the ex-sheriff who was in charge of the investigation, trial of Barker’s alleged accomplice, and illness of a key prosecution witness. Barker made no objections to the continuances until 3-1/2 years after the arrest. He was eventually convicted of murder. The United States Supreme Court, in affirming the conviction held:
"A balancing test necessarily compels courts to approach speedy trial on an ad hoc basis. * * * Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant.” 407 US 514, 530.
On balance the United States Supreme Court stated that though the length of delay and reason for the delay weighed in Barker’s favor, these factors were outweighed by the facts that he had suffered no serious prejudice and had failed to make a prompt and strenuous demand for a speedy trial. The United States Supreme Court concluded that Barker was a man who did not want a speedy trial.
In Grimmett, this Court recognized that the rule in Barker v Wingo, supra, quoted in the first paragraph of this opinion is the present and definitive test in this area.
III. THE BARKER RULE APPLIED TO THIS CASE
A. Length of Delay
The delay here was 15 months, including 7 months in jail, from the time of arrest to the time of trial on robbery armed. The delay in Barker was five years including ten months in jail which the court found "extraordinary.”
The United States Supreme Court stated that: "The length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the balance.” 407 US 514, 530. The Court noted that the delay which would provoke such an inquiry was necessarily dependent upon the "peculiar circumstances of the case.” For example they stated that "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” 407 US 514, 530-531.
The case here involved a simple street crime of armed robbery. Armed robbery is a serious crime, but its posture for litigation was simple. A cleaning store was robbed by one man who took money from the till. There was one eyewitness. There was no preliminary examination.
The Michigan Legislature has twice made 6 months a criterion, MCLA 767.38; MSA 28.978 and MCLA 780.131; MSA 28.969(1), in fashioning their standard of reasonable time.
This Court in considering length of delay has always considered the surrounding circumstances of the case. "What would be a reasonable time in one case would be perhaps unreasonable in another.” Hicks v Judge of Recorder’s Court of Detroit, 236 Mich 689, 690 (1926). In People v Shufelt, 61 Mich 237 (1886) this Court decided that a 21-day delay did not violate the constitutional privilege. However, in People v Den Uyl, 320 Mich 477 (1948), we held that a delay of 18 months was too long and that prejudice would be presumed after an 18-month delay.
The 15 months, including 7 months in jail, is far in excess of the legislative 6-month standard and much too close to the 18-month rule of Den Uyl. It is unduly long unless the other factors require a different result.
B. Reason for the Delay
As the United States Supreme Court stated in Barker, "[t]he approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” 407 US 514, 530.
Defendant was arrested on the charge in this case on January 5, 1969. It is true that trial did not begin until April 6, 1970, 15 months later, with defendant spending the last 7 months in jail. However, defendant on September 15, 1969, was arrested for breaking and entering. Failing to make bail he was jailed. Appropriately he was first tried for the jail offense to relieve him of incarceration if not guilty. This trial began on March 4, 1970, or less than 6 months after arrest. Since the prosecutor made the reasonable and fair choice in prosecuting the jail case first, this period of slightly less than 6 months of the 15 months can reasonably be charged to defendant.
Additionally within this period on October 28, 1969, defendant also failed to appear for a trial on the armed robbery charge (#2). Neither the attorney nor the court knew of the subsequent arrest and incarceration. He was in a different courtroom that day on the breaking and entering charge (#3) with a different attorney trying to reduce bond. This was not the fault of the prosecution.
Furthermore, subsequently on March 26, 1970, the defense counsel withdrew, thus creating a further delay over which the people had no control.
During the 9 months after the January 5 arrest (#2) but before the September 15 arrest for the subsequent breaking and entering charge (#3), defendant failed to appear on the August 21, 1969, trial date for his first offense and the court was required to issue a capias. Defendant claimed his attorney did not notify him of this trial date. However, he was sent notice by the court. The trial judge said:
"There is an obligation on the part of a defendant, particularly when he is out on the streets, to stay in touch with his lawyer. * * * And I don’t credit an alibi by a defendant, who has as much access to a telephone as a lawyer has, who comes in and says his lawyer didn’t get in touch with him.”
Further, when defendant filed a grievance against his attorney, the State Bar Grievance Board found that defendant "was partially the cause of his own problems in that he failed to notify the court of any change in his address and failed to keep in touch with his attorney.”
So apparently during the first nine-month period the prosecution was readying for a trial on the first charge and there was some excuse for not going to trial on the second arrest. The prosecutor certainly was far from being as diligent as he should have been either to protect the accused’s right to a speedy trial or more especially the public’s interest in a speedy trial to act as a deterrent to crime. While it was only four months between the first crime and the second, it was over a year between the first arrest and the third. If the prosecutor had moved more timely on the first arrest the public might have been spared the third crime.
To recapitulate on balance the reasons for the delays in this case run against the defendant at least as strongly as against the prosecution. The defendant’s posture certainly was not that of a man seeking speedy trial. As Justice Brennan said in concurring in Dickey v Florida, 398 US 48; 90 S Ct 1574; 26 L Ed 2d 38 (1969), "[a] defendant may be disentitled to the speedy-trial safeguard in the case of a delay for which he has, or shares, responsibility.”
C. Defendant’s Responsibility to Assert his Right
The Supreme Court in Barker rejected the rule that a defendant who fails to demand a speedy trial forever waives his right. Rather:
"[Djefendant’s assertion or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.” 407 US 514, 528.
The Court emphasized, however, that:
"[F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” 407 US 514, 532.
In Grimmett we also struck down the demand requirement by overruling People v Foster, 261 Mich 247 (1933) which required that a defendant demand a speedy trial or waive his constitutional right.
Defendant did not move to dismiss for lack of speedy trial until April 6, 1970. His trial in this case started the next day. Defendant claims that he did not have the legal expertise to bring on his own trial and that he did not have the opportunity being incarcerated in the Wayne County Jail. He further asserts that he was abandoned by his retained counsel. In Clark v Oliver, 346 F Supp 1345 (ED Va, 1972) the District Court for the Eastern District of Virginia found that the lack of demand by the defendant was excusable since he was uneducated, was never made formally aware of the charges against him, and was powerless to assert his right by reason of incarceration.
From the "Reasons for Delay” just discussed it appears that defendant did not want a speedy trial. He was unconcerned about trial while he was out on bail from January to September, 1969 when he was arrested for another crime. Further, he was represented by counsel from November, 1968, up to March 26, 1970, when his attorney withdrew from the case. It is true that defendant filed a grievance against his attorney for the handling of the case and the attorney was admonished. However, the complaint was dismissed, there being insufficient or no evidence of misconduct. Defendant’s letters to the State Bar Grievance Board show him to possess enough knowledge and intelligence to be aware not only of his situation, but of possible available remedies to him.
Thus defendant’s failure to assert a demand for speedy trial was of his own choosing and as a result of his own activity and must be weighed heavily against him.
D. Prejudice to the Defendant
There are two types of prejudice which a defendant may experience, that is, prejudice to his person and prejudice to his defense. Prejudice to his person would take the form of oppressive pretrial incarceration leading to anxiety and concern. Prejudice to his defense might include key witnesses being unavailable. Impairment of defense is the most serious, "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 US 514, 532.
Every incarceration results in a degree of prejudice to the person. In Barker, the Court found no undue prejudice in ten-months’ incarceration. However, by reference to our Legislative six-month standard, defendant’s seven months here borders on being too long even considering the reason for this incarceration arises from another rather than this arrest.
The question whether defendant’s defense was prejudiced is relevant. The eyewitness identified defendant at trial from an observation made 15 months earlier. The witness testified that defendant now had a mustache and longer hair than when she observed him on January 4, 1969. Defendant claims that as in Clark v Oliver, supra, the Court should find prejudice from the fact that the defendant was convicted largely on personal identification, which grows less reliable over a long period of time.
In Clark, however, the real prejudice the court was concerned with was that defendant had been deprived of a defense witness whom he claimed was the perpetrator of the offense. At trial here in response to the prosecutor’s question, the witness unequivocally identified defendant as the perpetrator of the armed robbery.
Defendant relying on Den Uyl argues that prejudice is conclusively presumed from any delay. This is untenable. In Den Uyl we said that prejudice would be presumed after 18 months. Prior to that time the burden is on the accused to show he was actually harmed. After 18 months, the burden shifts to the prosecution to show there was no injury. Here the delay was 15 months for no small part of which defendant must share a major responsibility and defendant failed to make a sufficient showing of prejudice.
Therefore, the degree of prejudice to the defendant was not so great as to be considered as a strong factor in his favor.
IV. CONCLUSION
Justice Powell stated in Barker:
"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process" 407 US 533. (Emphasis added.)
In balance we hold that defendant was not denied his right to a speedy trial. The delay was certainly long enough to raise the question of fair trial. However, the defendant was himself a substantial reason for the delay. Defendant’s assertion of his right to a speedy trial came so late as to be devoid of any sincerity or conviction. Finally, while incarceration is always prejudicial to defendant’s person, and delay could have affected the ability of the identifying witness, the prejudice here is not great enough to swing the balance in his favor. The serious prejudice here was to the public. The delay in prosecuting the robbery armed charge allowed defendant to commit another crime against the people for which he was convicted. Finding no denial of the right we need not consider the appropriate remedy.
The Court of Appeals is affirmed.
T. M. Kavanagh, C. J., and Adams, T. E. Brennan, T. G. Kavanagh, and Swainson, JJ., concurred with Williams, J.
Black, J., did not sit in this case.
The parties were also requested to present briefs on the advisability of setting a trial deadline rule similar to that followed by the Second Circuit (Appendix, 28 USCA, Supp 1971) and the New York Courts (McKinney’s Consolidated Laws of New York Anno., Cum-Supp. Pamphlet, May 1972). See also 71 Colum L Rev 1059 (1971) for a commentary on the Second Circuit Rules.
The ABA Speedy Trial Standard (§ 2.1) relating to Speedy Trial states in part that "[a] defendant’s right to speedy trial should be expressed by rule or statute in terms of days or months running from a specified event.” The ABA rules relating to Speedy Trial suggest a 4-month period (Rule 2.1).
The Supreme Court in Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972) observed that though the constitution did not require the right to be quantified into a specified number of days or minutes, they did not disapprove of a "presumptive rule adopted by a court in the exercise of its supervisory powers which establishes a fixed time period within which cases must normally be brought.” 407 US 514, 530, fn 29.
Justice Swainson considered speedy trial and Barker v Wingo, supra, as a secondary issue in People v Grimmett, 388 Mich 590 (1972). There a 19-month delay between arrest and indictment was found not to violate the right to a speedy trial. The Court found no evidence of prejudice. More crucial was the fact that the defendant in Grimmett never demanded a trial. Though this was not a waiver of the right, it was weighed strongly against him in the balance.
For recent cases applying Barker see United States v Strunk, 467 F2d 969 (CA 7 1972) (denial of right found where delay was 10 months and there was prejudice in delaying the commencement of the Federal sentence); Clark v Oliver, 346 F Supp 1345 (ED Va, 1972) denial of right found where delay was 2-1/2 years and there was prejudice to his defense due to the absence of a witness); United States ex rel Stukes v Shovlin, 464 F2d 1211 (CA 3, 1972) (no denial of right found though delay was 14 months and demand was continuous); and United States v Hanna, 347 F Supp 1010 (D Del, 1972) (denial of right found where delay was 11 months and was entirely for the government’s benefit even though defendant neither made a demand nor showed he had been prejudiced). It is clear that each of the court’s decisions was based on the peculiar circumstances of the case and cannot be relied upon in deciding this case.'
See also 20 Stan L Rev 476, note 1 (1968) which states:
"Society has an interest in the orderly administration of criminal justice quite apart from its humanitarian and pragmatic concern for the welfare of its citizens. A long delay may make it more difficult for the government to prove its charges beyond a reasonable doubt, and it may lessen the deterrent value of a conviction.”
See Dickey, supra, 47-56. Mr. Justice Brennan states:
"12Four factors — length of the delay, the reason for it, prejudice to the defendant caused by it, and waiver by the accused of speedy trial — are often mentioned as the determinants of reasonableness. See, e.g., United States v Simmons, 338 F. 2d 804, 807 (C. A. 2d Cir. 1964). The length of the delay, however, appears to be significant principally as it affects the legitimacy of the reasons for delay and the likelihood that it had prejudicial effects. And waiver by the accused seems relevant primarily to the source of the delay.”
The interplay between the individual’s right and the state’s public interest was also recognized by the United States Supreme Court in Barker v Wingo, 407 US 514, 519, where the Court in discussing the nature of the right stated:
"The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent fair procedures, there is a societal interest in providing a speedy trial which exists separate from and at times in opposition to, the interests of the accused.”
MCLA 767.38; MSA 28.978 provides:
"Sec. 38. Every person held in prison upon an indictment shall, if he require it, be tried at the next term of court after the expiration of 6 months from the time when he was imprisoned, or shall be bailed upon his own recognizance, unless it shall appear to the satisfaction of the court that the witnesses on behalf of the people have been enticed or kept away, or are detained and prevented from attending court by sickness, or some inevitable accident.”
MCLA 780.131; MSA 28.969(1) provides:
"Sec. 1. Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.”
See also People v Nawrocki, 6 Mich App 46, 61 (1967).
In Barker the Court stated:
"There are cases in which delay appreciably harms the defendant’s ability to defend himself. Moreover, a defendant confined to jail prior to trial is obviously disadvantaged by delay as is a defendant released on bail but unable to lead a normal life because of community suspicion and his own anxiety.” 407 US 526, 527.
A corollary question for this Court to consider if the denial of the right is ever found, is whether dismissal is the proper remedy or should a less drastic relief be granted? The Legislature requires dismissal of a state prisoner after 180 days without trial (MCLA 780.131, 780.133; MSA 28.969[3]). The Legislature has also said that if a person in prison makes a demand for trial, he was to be tried within 6 months or released upon his own recognizance (MCLA 767.38). This Court in Den Uyl directed the magistrate to conclude the examination within 60 days or dismiss the charges and discharge the defendants. ABA Standards and Rules § 4.1 also recommend absolute discharge.
The Federal Court for the Eastern District of Virginia has recently held that when the right to a speedy trial was denied under Barker, the proper relief was voiding the conviction. Clark v Oliver, 346 F Supp 1345 (ED Va, 1972) There is support for the Clark approach in Barker. Justice Powell stated:
"The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. * * * Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.” 407 US 514, 522.
However, in United States v Strunk, 467 F2d 969 (CA 7, 1972) the Seventh Circuit interpreting Barker stated:
"Here no question is raised about the sufficiency of evidence showing defendant’s guilt, and, * * * he makes no claim of having been prejudiced in presenting his defense. In these circumstances, the vacation of the sentence and a dismissal of the indictment would seem inappropriate. Rather, we think the proper remedy is to remand the case to the district court with direction * * * to credit the defendant with the period of time elapsing between the return of the indictment and the date of the arraignment.”
See 64 Yale L J 1208 (1955). See also Justice Brennan concurring in Dickey to the effect that discharge is justified only in rare situations. 398 US 30, 52. | [
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Boyles, J.
The question here for decision is whether $26,597 now held by Edna J. McKenna belongs ■ to her, or to the estate of her deceased husband, William P. McKenna, wherein she is speéial administratrix.
William P. McKenna died intestate in 1946, leaving as his surviving heirs-at-law Edna J. McKenna, his widow, and Emily McKenna, his mother. At the time of his death he owned 4 taxicabs, together with licenses to operate them in Detroit. His widow, Edna J. McKenna, as special administratrix of his estate, petitioned the probate court “that an order be entered authorizing her as special administratrix to sell the said taxicabs for the best price obtainable and not less than the market value thereof.” The probate court entered an order accordingly.
At the time of his death, William P. McKenna was a member of the Checker Cab Company, a Michigan nonprofit corporation. Under its rules and bylaws, his membership rights were terminated by his death. His 4 taxicabs were licensed to operate as such, in Detroit, under an ordinance of said city, which provided in part as follows:
“No license shall be granted until the person applying for such license shall have' secured from the mayor a certificate certifying that public convenience and necessity require the operation of the taxicab or motor vehicle for hire. * * Licenses issued hereunder shall not be transferable excepting, however, in the case of death of any.person owning a vehicle licensed hereunder, the mayor shall upon receipt of satisfactory evidence of such death, at the request of deceased’s personal representative, approve transfer and validate by appropriate indorsement thereon such license in the hands of the person in whose name title to such taxicab shall become vested through the deceased’s personal representative.”
A so-called “bond plate” accompanied each taxicab. The city “license” referred to is the “bond plate.” The secretary-treasurer of the Checker Cab Company testified:
“The license they are talking about * * * is the bond plate, we call it a bond plate, I presume a taxi license would be more correct.”
Edna J. McKenna, as special administratrix and the personal representative of the deceased owner, proceeded to sell said taxicabs at an auction sale held at the office of the Checker Cab Company in Detroit. She.asserts that they could be sold at best advantage and at an increase in price only if sold to members of Checker Cab Company. The secretary-treasurer testified to the circumstances and conditions under which the auction sale was held, as follows:
“I am a member of. Checker' Cab Company and was secretary-treasurer at the time of the death of William P. McKenna.
“On September-6, 1946, in my capacity as secretary-treasurer of Checker Cab. Company, I had something to do with the sale of the 4 taxicabs, that he owned at the, time of his death.
“After his death, I contacted his widow and asked her if she wanted the directors of'the cab company to manage the sale of the cabs, or did she want to shop around and sell them elsewhere. She informed me that since her hNsband had been a member for 20 or 25 years, she would'prefer to have them sold in Checker Cab Company. We arranged for the sale, which took place on October 2, 1946. • The eligible buyers were notified of the sale. A man who owned 4 cars coxild not purchase another car, but only members who .only owned 3 cars. At that time no one owned less, than 3. The only persons receiving notice of the sale were the so-called ‘eligible’ members, who owned 3 taxicabs. There was no public notice of the sale given to people outside the Checker Cab Company, by publication or otherwise. There were no outsiders present at the salé, which was held at the Checker Cab building'.
“The prices arrived at for the bare motor véhicles were by figures from the so-called blue book, which is the National Automobile Dealers Association book, in which all used-ear dealers and new-car dealers determine the value month by month of any kind of car. The price in Mrs. McKenna’s report is .$1,034 for the bare vehicle and would be the blue book price. We arrived at the $250 for the special taxicab equipment in consultation with the widow as to what the meter, the partition, the Checker light, the spotlight and any other accessories that might be in the car would be worth. The cars were there at the sale and a prospective purchaser could see them, and at the sale he was told what we thought they were worth. The $50 bond plate fee was the city fee for the issuance of the plate.”
The assembled eligible purchasers, company members who were already operating 3 licensed taxicabs, were the only bidders. They were willing to bid more than the mere used-car value of the taxicabs and equipment provided they also obtained the right to operate a taxicab in the city as evidenced by the bond plates issued to William P. McKenna by the city. The bond plates would be the purchasers’ licenses to operate taxicabs in the city, and their transfers were controlled by the more important circumstance that under the taxicab ordinance the city would transfer the taxicab licenses of the deceased owner of the taxicabs, upon his death, only by the request of the personal representative of the deceased. It requires no particular foresight to see that Edna J. McKenna, in collaboration with the company, was in a position to decide whether a purchaser of the vehicle from the estate would get with it the privilege of using it as a taxicab in Detroit. It is apparent that what a prospective purchaser was bidding for was not merely a used taxicab and the equipment, including the “bond plate,” but was actually bidding for the opportunity to have Edna J. McKenna, as special administratrix of the estate of the deceased owner, apply for the transfer of the city license and the right to operate a taxicab in Detroit.
The appellee claims that the auction sale of each taxicab was divided into 2 parts — 1 for the sale of the vehicle, special equipment and “bond plate,” and the other to enroll the purchased taxicab in the Checker Cab Company. The record fails to establish the fact. The only bidder who was sworn at the trial, who was 1 of the 4 successful bidders, testified :
“I didn’t bid separately for the right to operate the cabs and for the cabs themselves, but I ‘just bid.’ My bid was $8,000.”
Furthermore, a receipt given to this purchaser, to the same purport as those given each of the other 3 successful bidders, was:
“$8,000 Date 10-4-1946
_ “Received of J. Kern 8,000 dollars. Payment of 1946 Ply & right to oper 4th car Ob.”
Each of the successful bids was for a lump sum, covering the vehicle and accessories, and the right to operate a taxicab, namely, an opportunity to obtain a transfer of the license (the “bond plate”), which was obtainable from the mayor of the city only through an application by Edna J. McKenna, the personal representative of the deceased owner, as special administratrix of his estate. Edna J. Mc-Kenna, as special administratrix, might have sold the decedent’s 4 taxicabs without resort to the Checker Cab Company, and under the ordinance fhe licenses held by William P.- McKenna at his death might have been transferred to any other purchasers of his taxicabs, depending solely on the application of the special administratrix to the mayor asking for such transfer. The record does not indicate that any effort was made by Edna J. McKenna, as special administratrix, to sell the 4 taxicabs to any one else, or to learn whether a greater advantage might result to the estate by such sales.
Under these circumstances, the 4 taxicabs of the deceased were sold at auction to 4 eligible members of the Checker Cab Company, for the following amounts respectively: $8,000 — $7,875—$6,975 and $8,800, a total of $31,650. Each purchaser gave the money to the Checker Cab Company and each was given a receipt by the company in identical language except as to name of purchaser, make of car and amount of bid, each receipt concluding with “right to oper 4th car.”
On the same date as the sale, Edna J. McKenna executed 4 separate letters addressed to the mayor of Detroit, identical except as to.names of purchasers and numbers of taxi plate, as follows:
“Honorable Sir:
“This is to certify that I, Edna J. McKenna, am the personal representative of the late William P. McKenna, deceased, formerly a member of Checker Cab Company, and I have been duly appointed special administratrix of his estate. Further that by order of the probate court entered on the 16th day of September 1946, I was authorized and directed to sell the taxicab owned by the said deceased, and I have sold to [name of purchaser] the taxicab for which 1 set of city of Detroit taxi plates for the year 1946, bearing number * * * were issued to the said William P. McKenna, and I hereby respectfully request that the said set of taxicab plates No * * * be transferred to the said [purchaser] in accordance with Detroit Compiled Ordinances, 1945, ch 103, § 4.
“In witness whereof, I have hereunto set my hand and seal this 2d day of October, A.D., 1946.
“Edna J. McKenna,
“Special administratrix.”
It is rather significant that each of said 4 applications for such transfers was executed by her, addressed to the mayor of the city, on October 2, 1946, the same day as the sales.
About 3 weeks later the Checker Cab Company gave 2 checks to Edna J. McKenna, payable to her own personal order, which were cashed by her personal indorsement. They were:
“Detroit, Mich., Oct. 23,1946
“Pay to the order of Mrs. Edna McKenna......
$26,597.00
The sum of .... 26,597 Dols 00 Cts........Dollars
For
“Checker Cab Company
“Dudley D. Grayson,
“Sec’y.-Treas.”
“Detroit, Mich., Oct. 23,1946
“Pay to the order of Mrs. Edna McKenna......
$5,053.00
The sum of...... 5,053 Dols 00 Cts......Dollars
for account ¥m. McKenna (Deceased).
“Checker Cab Company
“Dudley D. Grayson,
“Sec’y.-Treas.”
On April 26, 1949, Edna J. McKenna, as special administratrix, filed in the probate court a report of the sale of said taxicabs, to
“4 different members of the Checker Cab Company who had qualified and who were recognized by the board of directors of the Checker Cab Company as permitted to purchase said Checker taxicabs and to operate them as Checker taxicabs in addition to the cabs that they were then operating. That she sold the said taxicabs at the price which was determined upon by the directors and officials of the Checker Cab Company as the price at which they should be purchased as used taxicabs and as used automobiles equipped with the special equipment for use as Checker taxicabs, * * * That she received therefor the full sum of $5,053 for the sale of the said personal property.”
The report further stated that this was the total of the sums received for “the bare motor vehicle, * * * $250 for the special taxicab equipment therein, and for the sum of $50 for the bond plates.” On the same date that she filed the foregoing report of sale, she also filed her final account as special administratrix, showing’ that the said sum of $5,053 had been turned over by her as special administratrix to herself later appointed as general administratrix of the estate of the deceased. In the meantime, Emily McKenna, the mother of the deceased William P. McKenna and an heir-at-law interested in his estate, had died and the appellant herein, Andrew M. McKenna, had been appointed as executor of her estate. He filed objections to the allowance of the final account of Edna J. McKenna as special administratrix, claiming that she had failed to account for the $26,597 she had received from the sale of the 4 taxicabs owned by William P. McKenna in addition to the $5,053 accounted for. The probate judge who heard the matter disagreed with that claim and allowed the account as filed by the special administratrix. On appeal, the circuit judge likewise overruled and denied appellant’s claim and affirmed the order of the probate court. Andrew M. McKenna, as executor of the estate of Emily McKenna, deceased, appeals.
Stripped of nonessentials, the simple question here is whether the $26,597 which Edna J. McKenna, special administratrix, received personally from the Checker Cab Company resulting from the sale of the 4 taxicabs owned by William P. McKenna, belongs to her individually, or must she account for it to the estate. The Checker Cab Company is not a party in the case, it has paid over the money to her, and apparently has no financial interest in thé outcome of this particular case. The appellee, Edna J. McKenna, claims that said money was received by tbe Checker Cab Company for the right to operate 4th taxicabs by 4 of its members, and only inferen-, tially to obtain a transfer of the taxicab license from the city therefor,- and that the Checker Cab Company made a present of said $26,597 to her. She was not a member of the Checker Cab Company and could not be. The only ground on which she seems to claim this money is that it was a gift to her from the Checker Cab Company. She had no individual interest in the taxicabs of William P. McKenna, or in his rights as a member of said company. She obtained the $26,597 as a result of the auction sale of the taxicabs owned by William' P. McKenna, over and above the bare value of used taxicabs plus $250 in equipment, obviously on account of the opportunity allowed only to her by the ordinance to obtain a transfer of the decedent’s 4 licenses to the purchasers, to operate 4 taxicabs in Detroit. Those transfers, according to the ordinance, could be obtained only by request of Edna J. McKenna as the personal representative of the deceased owner, „ and then only to the persons who became the purchasers of the titles of the taxicabs, when sold to them by her as such personal representative. Incidentally, Edna J. McKenna, as the personal representative of the estate of William' P. McKenna, deceased, owed a duty to the estate not to engage in transactions concerning the prop-^ ei’ty of the deceased for her own personal profit as .against the interests of the estate. As special administratrix, she stood in the relationship of a fiduciary with the estate, and as such was in a position of confidence and trust with respect to the estate and to Emily McKenna who was also an heir-at-law of the deceased.
The right to operate a taxicab in Detroit under license .is tied into the ownership of the vehicle itself by the provisions of the ordinance, which allows a transfer of the right to operate the taxicab upon the death of the owner only to one who purchases the taxicab from his estate, and then only on the application of the personal representative of the decedent. The licenses to operate the 4 taxicabs owned by William P. McKenna belonged to him. Appellee’s brief concedes that:
“A license upon issuance by the- city does not attach to a particular vehicle, but is issued to a licensee — a person.”
Under the peculiar circumstances of this case, the entire proceeds resulting from the sale of the taxicabs, including the money paid by the purchasers in order to obtain the right to operate the taxicabs under city license, belong to his ■ estate. ■ Edna J. McKenna has no right to any part of the same. - . The contest in this case is not between the estate and the Checker Cab Company; it is' between Edna J. McKenna, as special administratrix, and the estate of William P. McKenna, deceased. The decision here rests upon the respective rights of those parties.
Appellee claims that the Checker ;Cab Company was paid $26,597 for the privilege granted to the 4 purchasers each to operate a 4th taxicab. We do not so consider it. The .purchasers paid that total sum in order to obtain the application of the special administratrix of the estate, the only person who could make such application to the mayor of the city, and thus to effectuate the transfer of the licenses from the estate to them. Nor was it paid to the Checker Cab Company by the purchasers for the privilege of becoming a member of the company under article 11 of its bylaws, as claimed by appellee. The purchasers were not buying memberships — they were already members of the company. Under its bylaws, article 8(b), no person can be entitled to more than 1 membership.
As between Edna J. McKenna, special administratrix of the estate of William P. McKenna, deceased, and the estate she represented in the sale of these taxicabs, she is required to account to the estate for the'full amount paid by the purchasers for the 1 taxicabs, including the sums paid by them ,to accomplish the transfers by her of the taxicab licenses held by the deceased. The case will be remanded to the circuit court for entry of an order to that effect and return to the probate court for entry of an order for allowance of the final account of the special -administratrix in -accordance therewith. Costs to appellant.
Dethmers, Butzel, Carr, Bushnell, Sharpe, and ’Reid, JJ., concurred.
The late Chief Justice North took no part in this decision.
CL 1948, § 704.1 (Stat Ann 1943 Eev § 27.3178 [251]).
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Sharpe, C. J.
These cases involve two actions for damages as a result of a collision of two automobiles. The causes were consolidated on trial and also on appeal.
The accident out of which these actions arose occurred about the hour of noon on June 7, 1947,- at the intersection of M-37 and 100th street in the-village of Caledonia, Kent county, Michigan. Plaintiff Jorgen C. Jorgensen was the owner of one car involved in the accident. His son, George Jorgensen, was riding with him. Defendant, "Wallace How-land, was the owner and operator of the other car-involved. M-37 is a hard-surfaced highway and. runs in a northwesterly and southeasterly direction. 100th street runs east and west and intersects M-37. Running parallel with M-37 and to the east is a railroad track and embankment which is built up and graded to a level higher than the surface of M-37. The west rail of the track is 67 feet east of the: easterly edge of the concrete on M-37.
The .theory and testimony as to how the accident occurred as testified by the litigants is diametrically opposite. Plaintiff Jorgen C. Jorgensen filed a declaration in which he alleges that on the day and hour in question he was driving his automobile upon State highway M-37 in a southeasterly direction and had arrived at the south line of the village of Caledonia at a speed of approximately 40 miles per hour;; that as he entered the intersection of M-37 and 100th street the automobile of Wallace Howland was beingv driven by defendant over the railroad embankment on 100th street at a reckless, unlawful and negligent rate of speed, failed to stop his automobile as he-entered M-37 and attempted to cross in front of plaintiff; and that defendant’s car collided with plaintiff’s car, wrecking plaintiff’s car and causing; plaintiff permanent injuries.
On the same day plaintiff, George H. Jorgensen, also filed a declaration against defendant, Wallace Howland, in which he alleges that he was a passenger in the car driven by his father, Jorgen C. Jorgensen; that the car was being driven in a southeasterly direction on M-37 at a speed of approximately 40 miles per hour; and that as they entered the intersection of M-37 and 100th street, an automobile driven by defendant on 100th street entered the intersection and collided with the car in which plaintiff was a passenger causing plaintiff severe injuries.
Defendant, Wallace Howland, filed an answer to each declaration in which he denies all of the material allegations contained in each declaration and in a cross declaration filed in the case of Jorgen C. Jorgensen versus Wallace Howland and alleges that on the day and hour in question he was driving his car on M-37 in a northwesterly direction and that as he entered the mentioned intersection plaintiff Jorgen C. Jorgensen was driving a car on 100th street in a westerly direction and attempted to cross M-37 without coming to a stop at the easterly edge of M-37 and collided with defendant, wrecking his car and causing him painful and permanent injuries.
The cause came on for trial and at the conclusion of the testimony and arguments of counsel the trial court submitted the cause to the jury under instructions to the effect that if plaintiffs were driving on M-37 as they claimed and defendant crossed their path without stopping, plaintiffs were entitled to recover and that if defendant and cross-plaintiff was driving on M-37 as he claimed and plaintiffs’ car came from the east on 100th street without stopping defendant was entitled to recover. The jury returned a verdict for each plaintiff.
It also appears that prior to the submission of the case to the jury, defendant submitted the following requests to charge to the court:
“I
“It is alleged in the declarations filed by the 2 plaintiffs in these actions, Jorgen C. Jorgensen and George H. Jorgensen, and testified to by them, that they operated an office supply business in the village of Middleville, Barry county, Michigan, and that at the time of the collision between the 2 automobiles said plaintiffs were on a business trip in connection with their operation of this joint business. You are therefore instructed that the 2 plaintiffs in these actions, Jorgen C. Jorgensen and George H. Jorgensen, were in law engaged in a joint venture, and that any negligence of which Jorgen C. Jorgensen was guilty is chargeable to the other plaintiff, George H. Jorgensen. If you find from the evidence in this case that plaintiff. Jorgen C. Jorgensen was guilty of any acts of negligence which contributed to this collision in any manner, neither of the plaintiffs can recover in their respective actions and it would be your duty to return a verdict of no cause of action in both of their actions. 5 Berry on Automobiles (7th ed), p 206; Farthing v. Hepinstall, 243 Mich 380; Frisorger v. Shepse, 251 Mich 121; Hopkins v. Golden, 281 Mich 389.
“II
“If you find from the evidence in this case and by a preponderance of the evidence that plaintiff Jorgen 0. Jorgensen was guilty of negligence which was the proximate cause of this collision, and if you further find by a preponderance of the evidence that defendant Wallace Howland was free from contributory negligence, then defendant Howland would be entitled to recover in his cross action and it would be your duty to return a verdict in his favor in such amount as you find he is entitled to recover under the evidence in this case.
“Ill
“Before any of the parties to this action can recover damages against the other, that particular party who is seeking damages must satisfy you by a preponderance of the evidence (1) that the party against whom he seeks to recover damages was guilty of negligence, (2) that said negligence was the proximate or producing cause of the collision, and (3) that he, the party who is seeking to recover damages, was free from contributory negligence. This rule of law applies both to the plaintiffs and to the defendant in this action. Unless the party seeking to recover damages has satisfied each of these 3 requirements as I have given them to you, then it would be your duty to return a verdict of no cause of action in the 3 actions brought by these parties.”
It also appears that at the close of taking testimony and prior to the submission of the cause to the jury, the trial court invited counsel for all litigants into his office where some discussion was had as to the issues involved and the charges to be given thereon. Following this conference the trial court did not charge the jury on the. subjects of joint venture, negligence, contributory negligence and proximate cause except as they may be found in the following-charge given by the court:
“Now, if the Jorgensens were driving in a southerly direction towards Middleville and the defendant’s, Howland’s, car crossed their path without stopping, then Howland was guilty of negligence because if that is true, he crossed M-37, a through traffic highway, without stopping and without giving right-of-way to traffic that was going on that highway. That is a violation of the law and in and of itself amounts to negligence. Now, on the other hand, if it is true that Howland was' driving northerly towards Grand Rapids and the Jorgensen’s car came from the east on 100th street and crossed, attempted to cross M-37 without stopping, then the Jorgensens or the driver of the Jorgensen’s car was guilty of negligence in failing to stop at a through traffic highway without giving right-of-way to traffic on that highway.”
Following the verdicts of the jury defendant made a motion for a new trial in which it is alleged that the verdicts of the jury are contrary to the great weight of the evidence; that the court erred in failing to define negligence, contributory negligence and proximate cause in its charge to the jury; in failing to give defendant’s requests to charge; and in admitting certain testimony. The court denied the motion for a new trial.
Defendant appeals and urges upon appeal the same reasons given in his motion for a new trial. The trial court attempts to justify his failure to give the requests to charge and in'failing to instruct the jury upon the questions of negligence, contributory negligence and proximate cause by stating in a written opinion on motion for new trial that it was agreed between counsel and the court that the only issue to be submitted to the jury was which car was being driven on M-37; and that the driver who attempted to cross M-37 at 100th street was clearly guilty of negligence. It is to be noted that the agreement, if made, was made in the chambers of the trial judge and no record was made of it in open court; and that counsel for defendant denies that any such agreement was made limiting the scope of the instructions. It clearly appears that there is a dispute as to what was agreed upon in the chambers of the trial court. The agreement, if made, was in violation of Court Rule No 11 (1945) which provides :
“No private agreement or consent between the parties to a cause, or their attorneys respecting the proceedings in a cause which shall be denied by either party, shall be binding, unless the same shall have been made in open court, or unless evidence thereof shall be in writing subscribed by the party or his attorney against whom the same is alleged.”
In our opinion the above rule includes agreements made in the presence of or with the trial court. One of the purposes of the rule is to prevent exactly the type of controversy as is presented in the case at bar.
In a case of the nature involved here plaintiff must allege in his declaration and prove upon the trial that he was free from contributory negligence; that defendant was negligent; and that the negligence of defendant was the proximate cause of his injuries and as a result of such negligence he has suffered damages. In cases of the nature involved here trial courts have certain duties in relation to the instructions of juries.
Court Rule No 37, § 9 (1945), reads as follows:
“The court shall instruct the jury as to the law applicable to the case whenever a verdict is to be rendered, and in his charge may make such comment on the evidence, the testimony and the character of the witnesses as in his opinion the interests of justice may require. The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested.”
CL 1948, §§ 618.58, 618.59 (Stat Ann §§ 27.1038, 27.1039), provide:
“Hereafter in all jury trials in courts of record, in charging or instructing juries, the court shall instruct them only as to the law of the case; and such instructions may be given by the court of its own motion, and shall be taken in full by the court stenographer, or in case there be no stenographer, shall be in writing and filed in the case.”
“After the evidence is concluded, and before the case is argued or submitted to the jury, either party may present written requests for instructions on any point of law arising in the cause, and upon such written requests so presented, an argument may be made by counsel for the respective parties previous to the court passing thereon. Any request not covered, by the charge as given, shall be deemed to be refused.”
In Barton v. Gray, 57 Mich 622, 631, we said:
“Undoubtedly it is the duty of the court to present to the' jury the substantial issues in the cause, and to state to them the principles - of law governing the rights of the parties, whether any specific instructions are requested by counsel or not.”
See, also, Crippen v. Hope, 38 Mich 344; Jageriskey v. Detroit United Railway, 163 Mich 631; Pierson v. Smith, 211 Mich 292; Daigle v. Berkowitz, 273 Mich 140.
Under the above authority it was the duty of the court to instruct the jury upon the law of the case regardless of whether or not such instructions had been requested. The instructions should have included the questions of contributory negligence, negligence and proximate cause. The failure of the trial court to instruct upon the above is prejudicial error and commands reversal.. Other issues have been raised but in view of our decision need not be discussed.
The judgments are reversed and a new trial granted, with costs to defendant.
Bushnell, Boyles, Reid, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Btjtzel, J.
Jacob Aman, a widower, in 1926 quit-.claimed a 264-acre tract in Ottawa county about 5 miles'west of Grand Rapids, Michigan, to the Grand Rapids Park and Boulevard Association, a private nonprofit corporation. The provisions of such deed material here are as follows:
“This deed is given upon the following conditions:
“1. This conveyance is made with the understanding that the above described property shall bedurned over to the city of Grand Rapids, Michigan, for park and recreation purposes subject to the below conditions within 1 year from the date of this instrument or as soon thereafter as is practicable. 2. The ■grantor reserves a life estate in the following described portion, of said land and premises, to-wit: The house, barn and outbuildings and-the land surrounding the same, comprising about 10 acres and being 35 rods east and west and 45 rods north and south, lying in the southwest corner of said premises. 3. The grantor reserves the right to cultivate and plant any of the above described premises not theretofore improved or used by the second party for park and recreation purposes; and further reserves the right to cut' and use such matured wood and timber as he may need for his own doméstic' use. 4. The grantee is to spend $2,000 in developing and improving the property within 2 years from the date hereof, said'moneys to be spent under the supervision and in accordance with the wishes of the grantor. 5. The name to be given the premises conveyed shall be Amah Valley or sofríe other'name to be selected or approved by the grantor if he so desires. 6. The property hereby conveyed shall forever be used for park and boulevard purposes only, subject to the above conditions, and the trees and timber thereon shall be preserved and handled in accordance with the best forestry practices. 7. The grantor reserved the- j’ight- to be buried upon the premises at a spot now designated by a stake, said spot to be dedicated as the grantor’s final burial place and to be preserved, protected and maintained in a fitting and proper way by the party of the second part forever. 8. If said proposition is not accepted by the city of Grand Rapids, Michigan, as specified, said property shall revert back to said first party.
“Together with all and singular * * * To Have and To Hold the said premises to the said party of the second part and its successors and assigns to the sole and .only proper use, benefit and behoof of the said party of the second part, its successors and assigns forever.”
By deed of September 7,1926, the corporation conveyed the property to the city of Grand Rapids, which by official -proceedings accepted the land for park purposes. In a previous case involving different parties, land and facts, but involving a similar question, we held that the Grand Rapids Park and Boulevard Association had authority to convey premises to the city of Grand Rapids for park and boulevard purposes and that the city had the authority to accept the conveyance. Schneider v. City of Grand Rapids, 211 Mich 399.
The testimony as to the use and care- the park received through the years is voluminous. It appears from a careful examination thereof that during the first years the city of Grand Rapids maintained the park, it was greatly improved and well policed and supervised.- At first Jacob Ama-n himself supervised the property. Later, under city supervision, numerous picnic, camping and playground facilities were installed and the park was landscaped, all at considerable expense to the city. When it failed to dedicate Jacob Aman’s grave in accordance with the terms of his deed, his heirs protested, and on September 18, 1930, the property was formally dedicated as “Aman Park,” with appropriate ceremonies. It was maintained and supervised during the 1930’s, but for some 8 years prior to the time Of the trial of the instant case, no caretaker had been in charge of the park and no further improvements or repairs were made on the property.
Jacob Aman in 1911 had obtained a right-of-way through adjoining property as a convenient means of access to part of Aman Park. The right-of-way was not expressly assigned to the city. The city failed to maintain such way and on February 29, 1940, relinquished the same on the advice that that portion of the park would look more unspoiled and natural if all artificial improvements were discontinued. Soon thereafter, the man-made improvements in all the park fell into disrepair although the beautiful natural woodland remained and was a source of great delight to students of natural history whó sought untouched conditions of plant life. After the removal of the caretaker, the park became often the scene of wild carousals, drinking, midnight campfires, auto races, et cetera. Policing authorities were confused as to the jurisdiction over property belonging to, but outside of, the city, so no arrests were made. After a protest from the citizens adjoining the park, and upon being urged by plaintiffs’ attorney, the city of Grand Rapids erected a barricade to keep out cars and to allow only people on foot to enter the park. Plaintiffs later sought to completely close the park to the public.
In 1949, the city of Grand Rapids began negotiations with the State conservation commission in an attempt to exchange Aman Park for some State land within the city limits of Grand Rapids. On July 14th, the State conservation commission accepted the city’s offer tó deed the park to the State. In the memorandum filed with the conservation commission which was the basis for its action taken July 14, 1949, it was stated:
“The city of Grand Rapids has offered the above described property to the State of Michigan for such conservation uses, within the stipulations of the title, as the department may deem feasible. * * * The city no longer desires to maintain this property as part of its city park system even though some development and improvement work has been done in the form of road and trail construction and reforestation. * * *
“According to the stipulations in the chain of title the donors require that this land shall be used for park purposes. * * *. It appears among other things that this property would adapt itself as a demonstration area for the practice of forest management of southern Michigan woods in connection with the forestry division’s program with the owners of woodlots in southern Michigan.” (Italics ours.)
After the conveyance to the State, the 4 children and only heirs of Jacob Aman, plaintiffs herein, proceeded to give notices of forfeiture and began the instant ejectment proceeding on April 1, 1950. The conservation commission, evidently uncertain as to the exact requirements of the deed, reconveyed to the city of Grand Rapids on September 1, 1950. The case was discontinued as to the defendant conservation commission but was continued as to the city of Grand Rapids, which had been a defendant on its own motion. It thus became the sole defendant.
Two questions are decisive here: Has there been a-breach of a condition subsequent in the deed? Has there been an abandonment of the property by the public such as to work a reverter to the dedicators ?
Plaintiffs contend that the 8 “conditions” set forth in the deed of Jacob Aman (quoted supra) are conditions subsequent, the nonfulfillment of any of which will work a reverter to the heirs. "We do not find that such a construction is permissible under the laws of Michigan. An examination of the terms of the deed itself show how unlikely it is that such could have been meant. It is at once obvious that “conditions” 2, 3 and part of 7, supra, are reservations and not conditions at all; ‘ It is also noteworthy that “condition” 8, supra, is the only “condition” embodying a reverter clause. The absence of a reverter clause is ordinarily controlling against construction of a provision as a condition. See Adams v. First Baptist Church of St. Charles, 148 Mich 140 (11 LRA NS 509, 12 Ann Cas 224). The fact that 1 “condition” prescribes forfeiture is more significant when we consider that the other “conditions” do not contain a forfeiture or re-entry clause. See Rhines v. Consumers’ Power Co., 259 Mich 236. Ordinarily the use of’the word “condition” in a deed does not indicate the existence of a condition subsequent without the presence of words of reverter.
It is well settled that conditions subsequent are not favored in law and are strictly construed. See Barrie v. Smith, 47 Mich 130; Adams v. First Baptist Church of St. Charles, supra; County of Oakland v. Mack, 243 Mich 279; and Central Land Co. v. City of Grand Rapids, 302 Mich 105 (144 ALR 478). The latter case is a striking example of the rule. There, land was given to the city'of Grand Rapids with the express requirement that it be used for park purposes or it would revert to the grantor. We' held that a léase by a city to drill for oil on that property did not'constitute a breach where the use did not interfere with the main purpose of the park. For this reason, a provision in a deed as to use will be construed as a covenant rather than a condition subsequent, if possible. In doubtful cases, the writing* will be held to be a covenant. See Smith v. Barrie, 56 Mich 314 (56 Am Rep 391); Blanchard v. Detroit, L. & L. M. R. Co., 31 Mich 43 (18 Am Rep 142); and Detroit Union Railroad Depot & Station Co. v. Fort Street' Union Depot Co., 128 Mich 184. This is particularly true if there is no provision for forfeiture in case of failure to continue the use, as is the case here.
Plaintiff cites Epworth Assembly v. Ludington & Northern Railway, 236 Mich 565, which may - be quickly distinguished as there was an express reverter clause contingent on the cessation of the use. Such a situation does not exist here. Similarly, Blanchard v. Detroit L. & L. M. R. Co., supra; Jones v. Van Bochove, 103 Mich 98, and Puffer v. Clark, 202 Mich 169, are valuable statements of the general rules governing conditions subsequent but not controlling here.
It appears then that the intention of the' grantor to create a condition subsequent must be clearly and definitely shown. It has not been shown here. Plaintiff argues that the reverter clause in “condition” 8 applies as well to all of the “conditions.” However, an examination of “condition” 8 reveals that the words:
“If said proposition is not accepted by the city of Grand Rapids, Michigan, as specified, said property shall revert back to said first party,”
refer only to “condition” 1:
“This conveyance is made with the understanding that the above described property shall he turned over to the city of Grand Rapids.7’
It does not mean that once the property was accepted by the city of Grand Rapids that a failure to observe any of the other “conditions” would work a reverter.
Plaintiff has pointed out that a number of times the conservation commission and the city of Grand Rapids in their pleadings referred to the 8 provisions in the deed as “conditions.” That, however, is not an admission that they were conditions subsequent, the breach of which would work a reverter. Defendant made no admissions in its pleadings that estop it from insisting there was only 1 condition subsequent in the deed.
It is our conclusion that the trial court was correct when it held that “condition” No 8, the only condition subsequent in the deed, had been met in 1926 when the city of Grand Rapids accepted the property. Having reached this conclusion, it is unnecessary to" discuss whether or not the other covenants in the deed have been carried out. For any breach of the other covenants, plaintiffs’ remedy is not an action in ejection, hut in a court of chancery.
Even though there may have been no breach of express conditions subsequent, plaintiffs argue that the facts in the instant case indicate an abandonment of the property by the city of Grand Rapids so as to work a reverter to the heirs of the grantor, Jacob Aman. In Kirchen v. Remenga, 291 Mich 94, there was a dedication of a tract within a subdivision for park purposes, a dedication which had not been accepted by the county, but was so regarded by surrounding landowners. It was held that the burden of proof that' the use as a park had been abandoned was on the party asserting it and was not sustained even when a hotel, grocery store, boat livery, powerhouse, and other buildings were built thereon when it was not shown that the use for which the property was dedicated had wholly failed. In Ford v. City of Detroit, 273 Mich 449, we held that neither misuse nor nonuse will be sufficient to constitute an abandonment of land dedicated to public use so as to work a reverter to the dedicators. The city of Detroit had converted part of property dedicated for a parkway into a roadway. The acts of the city in removal of trees and shrubbery, excavation and condemnation proceedings were held a misuser but not an abandonment entitling holders of the right of reverter to maintain ejectment. This was in the face of a provision in a deed to the parkway that should the use of the parkway cease, it should revert to the dedicators.
We agree with the trial court that Ford v. City of Detroit, supra, is controlling here. Plaintiffs argue that the Ford Case does not apply as the Aman deed was to a private corporation in trust for a municipality, not to the public. For all practical purposes, however, the Aman deed was a dedication to the public for it contained the express condition that the property be turned over to the city of Grand Rapids. A dedication is merely an appropriation of land to some public use, accepted for such use by or in behalf of the public. Hayes v. Livingston, 34 Mich 384 (22 Am Rep 533); Alton v. Meeuwenberg, 108 Mich 629. The acceptance of the property by the city of Grand Rapids in 1926 completed the dedication. Plaintiffs here argue that the cases are not analogous as the Ford Case involved a statutory dedication and if the Aman transaction is a dedication it is by virtue of the common law. We see no reason to distinguish between the 2 types of dedication for the purposes of the law of abandonment. It is clear that the need for certainty of title exists equally in both instances. There is even less basis for finding a reverter here than in the Ford Case, in which there was an express reverter clause. The neglect of the property was not sufficient to constitute an abandonment.
Plaintiffs allege that the transfer to the State constituted an abandonment of the property by the city of Grand Rapids. It is true that in certain cases a sale may constitute an abandonment. In Kent County Board of Supervisors v. City of Grand Rapids, 61 Mich 144, land was dedicated for county seat purposes. The county seat was removed from the land and the county sold the courthouse to the owner of the fee. It was held that the county had abandoned all control of the site. Patrick v. Young Men’s Christian Association of Kalamazoo, 120 Mich 185, involved a similar situation. A church society had erected a building on a lot dedicated to the use of certain churches. It then conveyed the lot to a YMOA which demolished the church building and erected a building adapted to its own wants. It was held that the sale constituted an abandonment of the use for which the lot was dedicated. No such abandonment exists in the instant ease. The transfer to the State was made for uses within the stipulation of title and the State, when it felt it might not be.able to conform thereto, deeded the property back to the city which undertook the defense of the use of the property for park and boulevard purposes. Iii none k>f these transfers was there an abandonment of the use for which the property was dedicated, as took place in Kent County Board of Supervisors v. City of Grand Rapids, supra, and Patrick v. Young Men’s Christian Association, supra. A park may be a woodland preserve as well as a landscaped playground. To quote a few of the definitions of “park” from Black’s Law Dictionary (3d ed), at p 1325:
“A pleasure ground for.the recreation of the public to promote its health and enjoyment. * * * -A piece of ground enclosed for purposes of pleasure, exercise, amusement, or ornament. * * * A place for the resort of the public for recreation, air and light; a place open for everyone.”
These definitions are inclusive of any of the purposes for which the Aman tract has been used or w'as intended to be used throughout the years.
The relinquishment of any claim the city might have had .to the adjoining right-of-way was at least partly motivated by a desire to preserve the west side of the park in a natural state and can hardly be construed, by itself, to constitute an abandonment of the right to use the entire park in any manner.
"We conclude then that the uses for which the property has been dedicated have not wholly failed, and there has been no abandonment."
Plaintiffs also argue that the conservation commission had no power to grant the property in question back to the city of Grand Rapids. We seriously doubt the propriety of this discussion as it is not raised in the statement of questions involved or the reasons and grounds for appeal. But even so we must agree with defendant that if there is any possible, question as to the power of the conservation com mission to reconvey, it can only be raised by the State, not by the plaintiffs who must stand or fall on the strength of their own title and who may not recover because of any alleged weakness in the title of the defendant.
If the city government has failed to perfectly perform the obligations assumed in the acceptance of this gift, a court of eqiiity has the power to compel such performance.
The judgment of the trial court is affirmed. Costs •to defendant.
Dethmers, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit. | [
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Sharpe, J.
Plaintiff, Edgar Stewart, brought an action in‘the circuit court of Wayne county against defendants James Miner and Christo Napuche, for injuries suffered while a guest in defendant Christo Napnche’s tavern in the city of Detroit, Michigan. From a judgment in favor of plaintiff, defendant appeals.
It appears that on June 4, 1949, plaintiff, after having visited several bars, arrived at defendant Napuche’s place about 4:30 p. m. He was served beer by an attendant, and by defendant Napuche. Defendant Miner came on duty at 5 p. m., and shortly thereafter defendant Napuche left to go to his home. At or about the hour of 6 p. m., plaintiff asked Miner for another bottle of beer and was refused. At this time plaintiff had consumed 18 bottles of beer during the afternoon. Upon being refused another bottle of beer plaintiff made some remark to Miner, which apparently angered Miner to the extent that he came from behind the bar and struck plaintiff. Defendant Miner testified:
“I had a conversation with Mr. Stewart. We just had a few words and I goes around and picks him up — after having a few short words, I hit Stewart, then I walked around the end of the bar very quickly, picked him up, using a full Nelson — that is a wrestling grip — and started to take him out when someone in the bar interfered, and I put more pressure on his neck; that must have been when I hurt him.
“At no time during that time do I remember Mr. Stewart threatening to strike me; he may have used one or so curse words, I don’t remember. That didn’t bother me, I hear that every day. ■ I struck him in an attempt to get him out of the place. I didn’t want him in there. I wanted him out of there because he was highly intoxicated and was going to cause trouble, I-thought.”
As a result of this altercation plaintiff was severely injured, and lost approximately 5 months’ work and incurred hospital and doctor bills. The cause came on for trial before the court without a jury. At the close of plaintiff’s proofs Napuche’s attorney made a motion for a directed verdict, basing his reasons on the claims that Miner was not acting within the scope of his authority when he committed the assault upon plaintiff. The trial court denied the motion, and at the close of all testimony rendered judgment in favor of plaintiff in the sum of $7,500. Subsequently defendant, Christo Napuche, made a motion for a new trial, based upon the following:
. “4. Because the evidence failed to establish that the injury complained of was inflicted by the defendant Miner within the scope of his agency as an employee of the defendant Napuche.”
This motion was denied and defendant, Christo Napuche, appeals.
In law cases tried before the court without the aid of a jury, we do not reverse the judgment based on findings of fact of the trial court, unless the evidence clearly preponderates in the opposite direction. It is a general rule that the master is liable for the acts of a servant while the servant is acting within the scope of his employment. See Canton v. Grinnell, 138 Mich 590; Zart v. Singer Sewing Machine Co., 162 Mich 387; Moffit v. White Sewing Machine Co., 214 Mich 496; Martin v. Jones, 302 Mich 355; and Guipe v. Jones, 320 Mich 1.
It is also the rule that if the servant uses more force than he was authorized to use in evicting a party from his master’s premises, the master is liable. In Cook v. Michigan Central R. Co., 189 Mich 456, we quoted with approval from Robards v. P. Bannon Sewer Pipe Company, 130 Ky 380 (113 SW 429, 18 LRA NS 923, 132 Am St Rep 394) :
“The master who puts the servant in the place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the Servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances. and the occasion, goes beyond the strict line of his duty or authority; and inflicts an unjustifiable injury upon another.”
It -was further said in this connection that:
“Furthermore, the law, under such circumstances, will not undertake to make any nice distinctions fixing with precision the line that separates the 'act of the servant from the act of the individual. When there is doubt, it will be resolved against the master, upon the ground that he set in motion .the servant who committed the wrong.”
The difficulty begins when §,n attempt is made to apply the rule to the facts of the case. Miner testified that plaintiff said something to him after he had refused him another drink that made him angry; that he thought he should get him off the premises; that he didn’t like what plaintiff said, so he hit him. for the purpose of subduing him. He testified:
“That is the reason I struck him, to subdue him and put him out. I didn’t put him out. Someone prevailed upon me to leave him alone. The reason I struck him was to put him out, not because I was angry. That is on my instructions from Mr. Napuche.”
The trial court in denying the motion for a directed verdict stated:
“As far as the plaintiff is concerned, I think that the assault was unprovoked, but from the testimony in the case it shows that he was in furtherance of his master’s business. He was peeved because he had been served drinks there when he, the bartender, thought he shouldn’t have been, and he goes around from behind the bar for the purpose of put ting Mm out, for the purpose of doing something in furtherance of the master’s business. * * *
“This case is where the employee comes around, under the testimony, from behind the bar for the purpose of putting this man out, because he was a nuisance and because he had become peeved because he had been served drinks' when he'didn’t think he should have been; as the bartender' said, served by the owner, and the owner, of course, may deny that, but it doesn’t change the' facts in the case, that' he came around there in the course of his employment solely.for the master’s business, nothing else."-'
“The testimony is very clear that' he came around there to put that man out, and he even said he was going to put him to sleep 'so he could put him out ■easier. Everything he did, everything that that bartender did, from the minute he left his post behind the'bar until this thing happened, under this testimony, not.just of the bartender, but under the testimony of the plaintiff, this other witness who was in .the bar, and the bartender, the testimony is clear in tMs case, the record, I mean, is clear, that what he did, he was doing in furtherance of his master’s 'business.”
In our opinion there is competent evidence to support the finding of facts of the trial court that the actions of Miner were in furtherance of his master’s business, and under the rule heretofore announced we do not reverse. The fact that Miner used more force than was necessary does not change the rule of liability of the master. The judgment is affirmed, with costs.
North, C. J., and Dethmers, Btjtzel, Carr, Bush-hell, Boyles, and Reid, JJ., concurred. | [
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Reid, J.
Defendant was arrested and tried in circuit court for Genesee county on complaint of his former wife, Ruth Coleman, upon an information charging him with criminal nonsupport of his 2 minor children under the age of 17 years. Prom the judgment and sentence placing him on probation for 5 years, the defendant appeals.
Defendant and said Ruth Coleman, the mother of the 2 children, were divorced in Cook county, Illinois, on April 12, 1948. Defendant and appellant filed the bill for divorce in Illinois. The decree was granted to Ruth Coleman on her cross bill of complaint. The validity of the decree is not challenged. Ruth Coleman was by the decree given custody of the 2 minor children, Betty Lou, aged 4 years, and Ronald, aged l year. The decree further provided that the defendant was to pay Ruth Coleman $15 per week for the support and maintenance of the 2 children. Defendant has not complied with the decree as to the support of said children.
Defendant, his former wife, Rnth, and the said children, were all residents of the State of Michigan within the dates-charged in the information.
The pertinent portion of the statute under which the information in this case was brought is that part of PA 1931, No 328, § 161, as amended by PA 1947, No 142 (CL 1948, § 750.161 [Stat Ann 1947 Cum Supp § 28.358]), which reads as follows:
“Any man who being of sufficient ability shall fail, neglect or refuse to provide necessary and proper shelter, food, care and clothing for his wife or his minor children under the age of 17 years, shall be guilty of a felony.”
The testimony and other proceedings taken upon the trial in this case are not set forth in the record, and evidently defendant does not count on any defect or error in such-proceedings. Trial by jury was waived. The court found the defendant guilty in the manner and form charged in the information. It is necessarily implied from the record that the circuit judge found the defendant of sufficient ability to provide necessary and proper shelter, food, care and clothing for the 2 minor children, and that the defendant between the dates charged, vis., on the 5th day of May, 1948, at the city of Flint, Genesee county, and between that date and the 1st day of July, 1948, failed, neglected and refused so to provide. The findings by the trial judge are not disputed.
Defendant cites and relies on People v. Dunston, 173 Mich 368 (42 LRA NS 1065). Dunston was. charged with having deserted and abandoned his minor children without providing for them. The statute under which Dunston was prosecuted combined desertion and abandonment with nonsupport in order to constitute one completely defined offense. In the instant case the charge has nothing to do with deserting and abandoning the children. The statute under which the prosecution in the Dunston Case was brought did not contain the words as to nonsupport heretofore cited, under which the information in the instant case is laid. The words hereinabove cited from the statute in its present form constitute a separate and distinct offense from other recitals in the same section of the statute.
Defendant in the instant case states the question involved as though defendant were charged with noncompliance with the decree of divorce in Illinois. The charge in the information did not recite a violation of the divorce decree, but recited a violation of the Michigan statute. We are not in this case concerned with the question of the possible effect of a compliance or noncompliance with the Illinois decree. Nor do we determine that the Illinois decree is or is not an adjudication binding on the Michigan court of "the amount required on May 5,1948 and between that date and July 1, 1948, fairly to provide shelter, food, care and clothing for the children in question.
A decree of divorce of parents does not change the common-law obligation of the father to suppport his minor children. West v. West, 241 Mich 679; Oliver v. Oliver, 306 Mich 273.
It was for the circuit court for Genesee county to determine whether in this case there was a violation of the Michigan statute. The judgment appealed from is affirmed.
Sharpe, C. J., and Bushnell, Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Sharpe, J.
On June 25, 1941, at- about the hour of 6:30 p. m., Kenneth Beers, who was then 18 years of age, was riding in a truck traveling west on Peck road. Peck road is a black-top road about 18 feet in width with about 4 or 5 feet of shoulder on each side. Kenneth Beers was in the cab of the truck and two fellow employees were riding on the rear platform. When the truck reached a point west of the village of Peck, it stopped in the northerly lane of travel with its left wheels near the center of the road. About 30 or 40 rods west of the point where the truck stopped, the road rises to an incline so that traffic from the west was obscured from the view of anyone in the position of the truck until such traffic reached the crest of the hill.
When the truck came to a stop, Kenneth Beers got out of the right cab door of the truck. As he did so, he made an observation to the west and noticed that no cars were coming from that direction. He then walked east along the north side of the truck, and then to the south, around the back of the truck until he approached the southeast end of the truck. He then looked to the west, saw no cars approaching, and proceeded to walk south across the 9 or 10 feet of black-top. He reached the edge of the black-top when he noticed the approach of Arnot’s car. He then gave a lunge and was on the shoulder of the road at or about the south edge of-the black-top when he was struck by defendant Arnot’s car. As a result of the accident, Kenneth Beers was severely injured.
Kenneth Beers by his next friend and Roy Beers, his father, brought actions against defendant Arnot, owner and driver of the car, and Arnot’s employer, defendant Michigan Sugar Company. The causes were consolidated and came on for trial before a jury. At the close of plaintiffs testimony the trial court directed the jury to bring in a verdict for the defendants. Plaintiffs appeal and contend that Kenneth Beers was not guilty of contributory negligence as a matter of law.
Because the trial court directed a verdict in favor of the defendants, we must look at the facts in a light most favorable to plaintiffs.
Kenneth Beers testified that as he was getting out of the cab of the truck, he looked to the west and saw no car approaching. He then went to the back of the truck and when he was about in the middle of the highway, he made a second observation, but saw nothing. He said:
“The sun was shining and I didn’t see nothing coming.
“Q. Which way did you look?
“A. To the west. *' * *
“Q. How did you go across? What gait' did did you use ?
“A. I was walking fast.
“Q. Did you at any time run before you were struck?
“A. No. * * *
“The first I saw the car was at the edge of the pavement. The sun was shining from the west at the time. I was between the south edge of the, black-top and the ditch when I was hit.”
Bay Dingman, a witness produced by plaintiff, testified that when Irving Arnot, the driver of the car, was going over the hill, he was traveling at the rate of 60 miles per hour; and at the point of impact Arnot was driving at the rate of approximately 50 miles per hour.
Bussell Beals, another witness produced by plaintiff, testified that'at the time of the impact defendant Arnot’s car was traveling at a speed of 45 miles per hour. He said:
“When I first saw Kenneth he was on the blacktop on the north side of the road. * * * Mr. Arnot swerved a little to the north to avoid hitting Kenneth. * * * At the time Kenneth came around back of the truck the Arnot car was fairly close. * * *
“Mr. Rigney: How far in feet would you say the Arnot car was from Kenneth as he came out behind the truck?
“A. It would be about 50 to 60 feet. Somewhere around 45 or 50 feet. ’ ’
The observation that Kenneth Beers made as he stood behind the truck before crossing the south half of the highway is of importance in determining the question of contributory negligence.
In Carey v. DeRose, 286 Mich. 321, we said:
“We have repeatedly held that one must look before entering a place of possible danger, such as crossing an intersection, and maintain observation while crossing.”
In Haley v. Grosse Ile Rapid Transit Co., 290 Mich. 373, we said:
“While a pedestrian undoubtedly has the right to cross the street in the middle of a block and to use the highway equally with the operators of vehicles, he is not excused from the duty of exercising reasonable care to see where he is going.”
In Ayers v. Andary, 301 Mich. 418, 425, we said:
“If one is to make a proper observation of an oncoming car under the circumstances of the instant case, the observation must include not only the distance the approaching car is from the point of possible collision but also some observation and judgment of its approximate speed.”
See, also, Francis v. Rumsey, 303 Mich. 526.
If plaintiff had made a proper observation ás he stood in the middle of the highway, he would have seen defendant’s automobile traveling at a speed of 45 to 50 miles per hour and at a distance of approximately 60 feet away. To attempt to walk across the south half of the highway and then jump at the last instant under the circumstances of this case was in disregard of his own personal safety and precludes recovery. The trial court was right in directing a verdict in favor of defendants.
The judgments are affirmed, with costs to defendants.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Boyles, and Reid, JJ., concurred. | [
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Williams, J.
(for reversal). This case involves three problems of considerable importance and impact on the administration of justice in this state. The first problem, as appears chronologically, is the proper taking of a guilty plea, illustrating once again the necessity for a lucid and comprehensive court rule, and adherence to it. The second problem raises the crucial question as to the quality of legal service a client can justifiably expect from his attorney. The third problem poses consideration as to what the State Bar Grievance Board upon complaint is, and should be, doing to determine whether the attorney complained of delivered service consonant with our . Code of Professional Responsibility and Canons. The second and third problems, of course, relate to the growing lack of confidence in the legal profession and the imperative need of Bar and Bench to promote and maintain high professional standards.
The root problem in this matter goes back to the failure of the trial court in the original case to observe the constitutional, statutory and court rule requirements in taking a guilty plea. This root problem was compounded by defense attorney’s failure in pleadings attacking the taking of the guilty plea to intelligently review and set forth the transcript of the taking of the guilty plea. As a consequence, none of the reviewing tribunals was alerted to the errors in the acceptance of the guilty plea and the case has at best received superficial treatment with neither satisfaction nor credit to anyone.
I
It is necessary to set out the facts of this case in some detail. The complaint to the Grievance Board basically alleges failure of defendant Whelan to conduct himself according to the Canons of Legal Ethics as attorney for complainant Holt in seeking to vacate a guilty plea.
Complainant Holt had been charged with raping an 18-year-old deaf mute girl about to be married. With counsel of an attorney other than defendant Whelan, Mr. Holt pled guilty to, and was sentenced for, the lesser offense of attempted rape. After being committed to Jackson prison, Holt sought assigned counsel as an indigent to review his guilty plea proceedings. He was assigned Attorney Whelan.
Attorney Whelan moved in the trial court for vacation of the guilty plea and for a new trial, alleging only that the plea was "not freely and voluntarily made” and "that the Defendant was induced to make such plea under the assumption and implied promise that the Court would be lenient in its sentence.” The trial court denied this motion saying that there was no such promise on the record and "[t]hat the Defendant’s allegations in this regard constitute the barest of legal conclusions.” Nothing in the court file suggests that Attorney Whelan supported his allegations with any affidavits, with testimony or with any particulars whatsoever.
Almost simultaneously with the filing of Attorney Whelan’s motion and before the hearing and ruling on the motion, complainant Holt sent a motion to the court in the form of a letter. Holt said in his Grievance Board complaint "[w]hile I was waiting for Mr. Whelan to file a motion, I filed my own motion and sent him a copy of it, because Mr. Whelan didn’t seem to be doing anything.” Attorney Whelan’s letter to complainant Holt of April 13, 1971, states:
"Your motion and my motion for new trial were heard by Judge Gallagher yesterday. Both of our motions were denied.”
The importance of this motion of Holt’s is that in his complaint to the Grievance Board, he alleges that defendant attorney in an interview "told me that he couldn’t find any error’s [sic] in my transcript’s [sic], which was not true because I have brought a few of them to his attention.” Holt’s motion indicates what errors he brought to Whelan’s attention.
Specifically, Holt’s motion correctly spotted some of the errors committed by the trial court in taking his guilty plea. Furthermore, he correctly brought his own case under, and cited, the United States Supreme Court case of Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969) by quoting from the dissenting opinion of Chief Judge T. John Lesinski in People v Sepulvado, 27 Mich App 66, 72 (1970). People v Jaworski, 25 Mich App 540 (1970) was at that moment on appeal to this Court and was referred to by Chief Judge Lesinski in his dissent in Sepulvado, supra. We subsequently approved Chief Judge Lesinski’s point in Jaworski, and reversed the Court of Appeals. Attorney Whelan with this information which any conscientious attorney could have ascertained could then have meritoriously appealed defendant Holt’s case.
When the motion to vacate the plea was denied by the trial judge, a claim of appeal was duly filed on April 20, 1971.
On June 21, 1971, Mr. Holt filed his complaint with the State Bar Grievance Board against Attorney Whelan. Attorney Whelan failed to respond within the time alloted and on July 19, 1971, a final notice before default was sent by the Grievance Board to him. Attorney Whelan then filed his answer on July 21, 1971.
Mr. Holt also wrote the Court of Appeals concerning his pending appeal and was advised on August 6, 1971, that Attorney Whelan was late in filing his brief. On August 6, 1971, Attorney Whelan filed a motion, affidavit and Anders brief to withdraw from representing Mr. Holt on appeal. On the same date he also filed those documents with the Grievance Board. His affidavit stated:
"That after due consideration and investigation of the entire case and the procedures taken therein, your affiant believes that said claim of appeal is wholly frivolous and without merit.”
In his brief Attorney Whelan in referring to the Holt guilty plea procedure said:
"I can speak to the Court from some experience that a majority of our criminal justice and the practice of criminal law in the State of Michigan is handled in just the manner outlined above. It is for this reason that so many of the cases on appeal deal with the manner and form of accepting a plea and passing sentence thereon.”
With this statement of his credentials, Attorney Whelan asked the court to review three specific reasons for appeal: first the voluntariness of the plea citing the trial judge’s noting that the defendant was "hesitant” and "reluctant” saying that "it should be obvious to the practicing lawyer that the reason for the plea was a fear that he would be found guilty of the greater charge and that he was therefore, 'copping’ a plea under the advice of a lawyer”; second, that the judge failed by his examination to establish the facts of the crime pled, and defendant’s participation therein, more particularly the failure to establish lack of consent to intercourse; third whether the correction of the sentence maximum nunc pro tunc was proper.
On September 8, 1971, according to the Grievance Board brief, "the complaint of Mr. Holt, the answer of Mr. Whelan, with copies of the motion for leave to withdraw and brief in support thereof (7b-llb), was submitted to the Grievance Board.” From the brief, and response of counsel at the hearing before this Court, these several documents were the sole basis for the following order dismissing the complaint. The Grievance Board states:
"This complaint by Holt, an inmate of Jackson, against his appointed counsel is groundless.
"Closing letter and dismissal approved. Let a 'No Merit’ designation appear on the record.”
The only additional matter that may have been before the Grievance Board was a multiple statement form with the heading of this case with the statement "insufficient or no evidence of misconduct” with a circle around the statement "complaint without merit” in the same red ink used to indicate Grievance Board dismissal approved.
Subsequent to the handing down of the Grievance Board’s decision, and therefore of no direct relevance, the Court of Appeals, based upon Attorney Whelan’s Anders brief, dismissed Holt’s appeal. This Court denied leave to appeal.
II
We deal first with the manner in which the defendant’s plea of guilty was accepted. The transcript of the guilty plea proceedings was not included in the briefs or appendices of either party in this action. A thorough consideration of this matter requires that the relevant portion of that transcript be set out in full below:
"The Court: Are you pleading guilty because you are in fact guilty?
"The Respondent: Yes sir.
"The Court: Were you acquainted with the complainant, I assume Phyllis Mather?
"Mr. Woodruff [assistant prosecuting attorney]: Yes.
"The Court: Were you acquainted with Phyllis Mather prior to this event?
"The Respondent: No, sir.
"The Court: Did you in fact attempt to have carnal knowledge with her against her will?
"Mr. Woodruff: That would be rape, carnal knowledge.
"Mr. Davis [attorney for defendant]: Well, now, your Honor—
"The Court: Did you attempt to have sexual intercourse without her consent?
"The Respondent: Yes, sir.
"The Court: What? You seem to have some hesitancy.
"The Respondent: No, sir.
"The Court: Pleading guilty because you are guilty?
"The Respondent: Yes, sir.
"The Court: We will try the test on you. If you thought I was going to give you five years would you plead guilty?
"The Respondent: Yes, sir.
"The Court: You actually did perform the act as charged in the second count?
"The Respondent: Yes, sir.
"The Court: You brought the young woman in your house and attempted to have carnal knowledge.
"The Respondent: Yes, sir.
"The Court: And you didn’t know her previously?
"The Respondent: No, sir.
"The Court: No one else was home at the time?
"The Respondent: No, sir.
"The Court: Mr. Davis has advised you you could have a trial by the court or jury?
"The Respondent: Yes, sir.
"The Court: You might win?
"The Respondent: Yes, sir.
"The Court: I just want to be sure that you want to plead guilty.
"The Respondent: Yes, sir.
"Mr. Davis: I might say, your Honor, I have gone over pretty throughtly [sic] with the defendant and explained to him all the possibilities in this matter and what he has available. After all the discussions with him and with the prosecutor, he has indicated to me that this is his plea.
’’The Court: You will admit, Mr. Davis, he is a little reluctant.
"Mr. Davis: Yes, somewhat. But as to the charge before the court now, on this plea, I’m sure he’s satisfied, fully informed of the consequences.
"The Court: You have confidence in Mr. Davis?
"The Respondent: Yes, sir.
"The Court: Very well, I’ll accept your plea of guilty to Count Two, Count One to be dismissed at the close of the appeal period. Bond to continue, sentencing will be December 4 at nine o’clock in the morning.”
The United States Supreme Court held in Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969) that it would not infer a waiver of certain constitutional rights from a silent record. Those rights included the right against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. This Court has applied the Boykin requirements in the past, and also recognized them in its drafting of a new court rule concerning the acceptance of guilty pleas.
Examination of the plea transcript set out above reveals that the trial judge informed the defendant of his right to a trial by the court or by jury. He failed, however, to advise the defendant of his right against self-incrimination and of his right to question witnesses against him. As we held in People v Jaworski, 387 Mich 21 (1972), a deficiency of this nature in the plea-taking procedure constitutes reversible error.
Having determined that Mr. Holt’s plea of guilty was improperly accepted, we must now consider whether Attorney Whelan’s representation of Mr. Holt on appeal was so inadequate as to constitute professional misconduct on his part.
Ill
Under the circumstances of this case we must determine the quality of legal services which an indigent defendant is entitled to from his court-appointed appellate counsel. We hold as a fundamental precept that a lawyer’s duty to his client in a criminal case is judged by the same standard regardless of the fact that his client may be indigent. Professional misconduct by an attorney will not be condoned due to the fact that the attorney’s client was in an impoverished condition. The application of our Code of Professional Responsibility and Canons is not dependent upon the size of the retainer which an attorney receives.
Canon 6 of our Code states as a general tenet that "A Lawyer Should Represent a Client Competently”. If an attorney is incompetent to handle a particular case, he is guilty of professional misconduct if he nevertheless undertakes to represent a client in that case. Furthermore, though an attorney may be competent to accept the assignment of a case, the manner in which he conducts the case may be so inadequate or misguided as to constitute negligence on his part.
This Court has empowered the State Bar Grievance Board to determine in individual cases whether or not a lawyer’s representation of his client was incompetent or negligent and thus constituted professional misconduct. We must now examine the investigation and disposition of the Grievance Board in the instant case.
IV
Mr. Holt’s complaint to the State Bar Grievance Board alleged that Attorney Whelan failed to find any errors in the transcript of Mr. Holt’s guilty plea, even though Mr. Holt had called certain defects to his attention. The complaint alleged further that Attorney Whelan failed to answer letters sent to him by his client Mr. Holt, and that he failed to supply Mr. Holt with copies of various motions and briefs.
In his answer to the Grievance Board, Attorney Whelan stated that there were no appealable errors in the guilty plea transcript. He answered further that in his opinion several of Mr. Holt’s letters did not require replies. Finally, Attorney Whelan admitted that he should have sent Mr. Holt copies of the documents which he requested, though he still emphatically denied any violation of the Code of Professional Responsibility and Canons.
The action of the Grievance Board is described in its own brief:
"The complaint of Mr. Holt, the answer of Mr. Whelan, with copies of the motion for leave to withdraw and brief in support thereof (7b-llb), was submitted to the Grievance Board. It ordered the dismissal of the complaint as being without merit (12b).”
It is apparent that the Grievance Board disposed of this case with a superficial investigation. Mr. Holt alleged that the guilty plea transcript evidenced errors in the manner in which his plea was accepted, yet the Grievance Board failed to even examine that transcript. Mr. Holt alleged that Attorney Whelan was guilty of professional misconduct for failing to answer certain letters, yet the Grievance Board failed to even read those letters. Instead, the Board apparently chose to accept Attorney Whelan’s answer as the gospel truth.
The State Bar Grievance Board’s cavalier treat ment of this case, in and of itself, requires remand to the Board for further consideration. There is also, however, substantial evidence before this Court that suggests Mr. Holt may have been inadequately represented by Attorney Whelan.
As stated earlier, this Court held in People v Jaworski, 387 Mich 21 (1972) that when accepting a plea of guilty a trial judge must advise the defendant of his constitutional rights against self-incrimination and to confront his accusers. A brief examination of the nine page guilty plea transcript in this case makes it clear that Mr. Holt was advised of neither of those rights by the trial judge. Based on the assumption that any competent attorney would have read this transcript we must conclude that he would have recognized the failure of the trial court to advise his client of those rights.
It is true that Jaworski, supra, was decided on March 9, 1972, while Attorney Whelan was assigned as appellate counsel for Mr. Holt on February 16, 1971. Mr. Jaworski’s conviction had, however, been affirmed by the Court of Appeals on July 29, 1970, and this Court had granted leave to appeal in that case on October 15, 1970. Therefore on the date that Attorney Whelan was assigned as counsel for Mr. Holt, proper legal research would have revealed that a case with the identical issue as Mr. Holt’s case had been pending in the Supreme Court for four months.
Mr. Holt himself called Attorney Whelan’s attention to the Jaworski issues. Mr. Holt filed his own motion "for further proceedings” in the trial court and sent a copy of that motion to Attorney Whelan. In that motion Mr. Holt stated:
"I was never advised by my Attorney, or the Court, that I had a right to confront those witness’s /sfc/that wrere to appear in court against me, nor was I advised of my right against compulsory self-incrimination.” Mr. Holt then proceeded to quote a lengthy quotation from Chief Judge Lesinski’s dissenting opinion in People v Sepulvado, 27 Mich App 66 (1970), another case dealing with the Boykin issues. In spite of all of the foregoing, Attorney Whelan still remained convinced that Mr. Holt’s "claim of appeal is wholly frivolous and without merit.” At no stage of the proceedings did Attorney Whelan present any argument in behalf of Mr. Holt based upon the Boykin requirements.
As noted earlier, Canon 6 requires generally that "A Lawyer Should Represent a Client Competently.” Disciplinary Rule 6-101 (A) (2) states:
"DR 6-101 Failing To Act Competently.
(A) A lawyer shall not:
(2) Handle a legal matter without preparation adequate in the circumstances.”
Ethical Consideration 6-2 of the American Bar Association Code of Professional Responsibility states:
"A lawyer is aided in attaining and maintaining his competence by keeping abreast of current legal literature and developments, participating in continuing legal education programs, concentrating in particular areas of the law, and by utilizing other available means.” (Footnote omitted.)
We reach the conclusion that whether or not Attorney Whelan’s course of action in this case constituted either incompetency or such negligence as to reach professional misconduct is a question which the State Bar Grievance Bar must consider in a complete hearing of this case.
We note the conclusions reached by Justice T. E. Brennan in Leitman v State Bar Grievance Board, 387 Mich 596 (1972), concerning the type of appeals from the Grievance Board which come before this Court as a matter of right. In the future, appeals from an administrative dismissal by the Grievance Board should, come before this Court in the form of applications for leave to appeal with the Grievance Board as the named appellee. Accordingly, the title of the instant case is amended to read "Kenneth L Holt, Complainant-Appellant v State Bar Grievance Board, Respondent-Appellee.”
Dismissal vacated and remanded to the State Bar Grievance Board for further proceedings pursuant to this opinion.
T. M. Kavanagh, C. J., and Swainson, J., concurred with Williams, J.
In Anders v California, 386 US 738; 18 L Ed 2d 493; 87 S Ct 1396 (1967) the United States Supreme Court stated "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” 386 US 738, 744. The Anders procedure seems inappropriate in this case since Attorney Whelan filed a motion in the trial court to vacate Mr. Holt’s plea of guilty, thereby indicating his belief that such a motion was not frivolous.
386 Mich 785.—Reporter.
See People v Jaworski, 387 Mich 21 (1972).
The proposed new GCR 1963, 785.3-785.11 appears in July, 1972 volume of the Michigan State Bar Journal. | [
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Reid, J.
The bill in tbis case was filed to enforce
specific performance of a contract entered into by the parties dated September 18, 1941, reciting the impending purchase by defendant and appellant from Davidsons, third party owners, of the personal property, good will, et cetera, of a beer tavern called the House of Stein on Butterworth avenue in Grand Rapids, which was then subject to a chattel mortgage held by plaintiff. This contract provided for additional security for plaintiff reciting that “second party shall execute and deliver to first party a promissory note in the sum of $5,500, with interest at six per cent, per annum payable in instalments of $50 or more, at maker’s option, each month, including principal and interest,” and that defendant should also give a chattel mortgage to plaintiff to secure that amount, also same to retire former chattel mortgage and provide the purchase money to Davidsons and make certain other adjustments. The fifth clause of the agreement reads as follows:
“5. If second party shall fall into default upon said chattel mortgage note to first party and shall be unable to make payment thereon, second party agrees to execute and deliver to first party, or such person or persons as first party shall designate, a good and sufficient transfer and assignment of the liquor license now exercised at the ' House of Stein’ as hereinbefore described; first party shall pay to second party, in that event, the sum of $1,000 for said license which is hereby agreed .to be the full value thereof.”
Plaintiff desires to specifically enforce this paragraph and to require that defendant shall make application to the liquor control commission and apply ■for the approval of the local legislative body thereto for a transfer. Upon filing the bill of complaint $1,000 in currency was tendered and upon the case being brought on for hearing the tender was paid in to the clerk of the court. The class C liquor li cense •which, was in existence in September, 1941, expired the following May. It was then renewed and it would require the transfer of a second renewal of that license to effectuate the transfer for which the $1,000 was tendered.
On the first renewal defendant did not have the money with which to pay for his 1942-1943 Michigan liquor control commission license and on April 29, 1942, plaintiff made arrangements with the Union Bank by which the defendant was advanced $636 for the payment of his license fees and necessary bonds, which money was obtained upon a note indorsed by plaintiff and on which defendant later made part payment with a balance still owing of $212. In October, 1942, defendant ceased to operate his business on Butterworth street and left there his personal property that was covered by the chattel mortgage. He has since that time operated a beer parlor at 136 Crescent street, N. W., in Grand Rapids. It was testified the amount still owing on the chattel mortgage was $5,306.80 and defendant does not dispute the amount.
Plaintiff does not desire to foreclose the chattel mortgage in this proceeding. He asks that defendant be required to make application for a transfer of the license which he now holds. Defendant claims that an agreement to transfer the license is contrary to public policy and void. This claim is untenable now in Michigan since the enactment of Act No. 8, § 17, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 281, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 9209-32, Stat. Ann. 1943 Cum. Supp. § 18.988), which enacted that licenses may be transferred with the consent of the commission and certain licenses shall be approved by the local legislative body. The word “transferred” as used here implies and carries with it the making of an agreement of transfer. It is therefore not illegal in Michigan to agree to make a transfer. It is simply subject to the consent of the commission and of the local legislative body.
Defendant in his brief cites People v. Schafran, 168 Mich. 324, 330:
‘ ‘ The licensee has no vested property right in his license; in fact, it would not be in the power of the legislature to make an irrepealable contract as to that which affects public morals or public health so as to limit the exercise of the public power over the subject matter.”
That decision and others in Michigan and outside of Michigan appertain to the laws of the State .where the license is not expressly made transferable, which, as above noted, is no longer the situation in the State of Michigan.
Defendant also stresses the words, “license now exercised at the House of Stein,” and claims when a new license was obtained in May, 1942, following, and again renewed in May, 1943, the right to enforce a transfer expired, that paragraph 5 of the agreement heretofore recited cannot apply t„o the license now held by defendant.
On the important question therefore in this case of the applicability of the undertaking in paragraph 5 to the present license held by defendant, the finding by the trial judge is as follows:
“The present license was issued when the one expired that was mentioned in the contract. It cannot be imagined that in view of the chattel mortgage that the parties intended that the language of the contract would only apply to the license then in force and not to subsequent renewals thereof during the life of the mortgage. What the plaintiff contracted to pay $1,000 for was a contingency and is a contingency. What the defendant agreed to do was to make application in the manner and form as required by the liquor control commission of the State to transfer the license to the plaintiff. He did the same thing in transferring the license that he held to Cliff’s Tavern that this plaintiff is now requesting him to do in relation to the license held at the House of Stein. There is no reason why he should not or cannot do this. He has defaulted in his mortgage and has breached the terms of his contract. ”
The act of Anscer in procuring Eoodvoets to indorse his note at the first renewal of the license to obtain the money therefor implied that plaintiff was still interested in the license and would be interested in procuring a renewal of it. It seems thát that is an act reflecting what the parties had in mind in making the contract and the trial judge in his opinion appropriately cites McIntosh v. Groomes, 227 Mich. 215, 220, and further cites Lower v. Muskegon Heights Co-operative Dairy, 251 Mich. 450, 456. The life of the chattel mortgage would extend far beyond the period of the first license year and even beyond the later and second renewal of it. Necessarily the agreement to transfer the license implied the agreement to transfer the renewal of it and succeeding renewals.
That is the finding and determination of the trial judge and his decree required the filing of applications for the transfer. The decree appealed from is affirmed excepting that part of the decree requiring filing of certified copies of the decree with State and local authorities and defining the effect thereof. Plaintiff will therefore be restricted to the remedy for contempt if defendant shall not comply with the order thus modified. The decree of this Court will so provide. Plaintiff shall have costs of both courts.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
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Williams, J.
The principal issue of law presented in this case is whether the personal representative of deceased children may recover damages from the personal representative of the deceased mother under the wrongful death act (MCLA 600.2922; MSA 27A.2922) for ordinary negligence.
On May 22, 1969, Mrs. Claudia Ann Plumley was driving her husband’s pickup truck on Highway M-40 in Van Burén County. In the truck with Mrs. Plumley as passengers were her children Nita, six years old, Virginia Lee, four years old, Melissa Kay, not quite two years old, and Howard Everett, ten months old. The vehicle driven by Mrs. Plumley collided with another pickup truck driven by Mr. David William Rumery. As a result of that collision Mrs. Plumley and her four children were killed.
Mr. Howard Plumley, husband and father of the deceased Mrs. Plumley and her children, filed a wrongful death action as personal representative of his deceased children against the personal representative of his deceased wife. The suit also named as defendants Mr. Rumery and Superior Market, the owner of the truck driven by Mr. Rumery. The complaint in this suit alleged that the four children were killed as a result of the negligence of both Mrs. Plumley and Mr. Rumery.
Defendant Alma Klein, administratrix of the estate of Claudia Ann Plumley, moved for summary judgment on the basis that as mother of the children the deceased Mrs. Plumley was immune from suit. The trial court granted the defendant Klein’s motion for summary judgment.
The Court of Appeals reversed the decision of the trial court in 31 Mich App 26 (1971). The Court of Appeals interpreted the legal logic of Mosier v Carney, 376 Mich 532 (1965) (hereinafter discussed) to apply in this case and held there was no reason for the continuation of intra-family immunity where the parties involved are deceased, 31 Mich App 26, 30. We granted the defendant Klein’s application for leave to appeal on July 20, 1971.
The guest passenger act is not applicable to this case as all of the deceased children were under seven years of age at the time of the accident. This Court held in Burhans v Witbeck, 375 Mich 253 (1965) that a child under the age of seven years does not have the ability to choose to be a guest passenger.
This Court determined in Elias v Collins, 237 Mich 175, 177 (1926) that:
"It is a rule of the common law that a minor cannot sue his father in tort. The rule had its beginning in the interest of the peace of the family and of society, and is supported by sound public policy.”
A number of our sister states who once recognized the above rule have since abandoned it. Instead, they now recognize the right of a child to recover damages for injuries incurred as a result of negligent conduct on the part of his parent. As set out in footnote 2, the number of recent decisions in other states clearly indicates that the modern trend is towards the elimination of intrafamily immunity. As Prosser has stated:
"Finally, in 1963, Wisconsin took the lead in declaring that the parent-child immunity was abrogated entirely in that jurisdiction, except as to exercises of parental control and authority, or parental discretion with respect to such matters as food and care. The decision set off something of a long overdue landslide; and at the present writing it has been followed in Alaska, Arizona, California, Hawaii, Illinois, Kentucky, Louisiana, Minnesota, New Hampshire, New Jersey, New York, and North Dakota. The prediction is easy to make that the number of such jurisdictions will henceforth be rapidly on the increase.”
This Court has itself moved toward an elimination of intra-family immunities. In Mosier v Carney, 376 Mich 532, 566 (1965) Justice Souris stated that:
"We this day hold: (1) that a suit may be maintained predicated upon injuries to one spouse during marriage arising out of an allegedly wrongful act of the marital partner, when the allegedly wrongful act resulted in termination of the marriage by death; * * * .”
The action in that case was by the personal representative of a deceased spouse killed as a result of the alleged gross negligence of the other spouse. The beneficiaries in Hosier were the children of the deceased spouse.
The Legislature also has moved toward an elimination of intra-family immunities. In Hosko v Hosko, 385 Mich 39, 44-45 (1971), we stated:
"It must be concluded that the Revised Judicature Act of 1961 has abrogated the doctrine of interspousal immunity insofar as women are concerned and that the action in this case is maintainable by plaintiff. Conversely, in a suit brought by a husband against a wife, the action would also be maintainable in accordance with the clear language of the statute.”
Incidentally a special but subsidiary point may be noted. As the Supreme Courts of our sister states Wisconsin and Minnesota have noted, the widespread utilization of liability insurance suggested that intra-family lawsuits would seldom upset the tranquility of the family. Writing for the Wisconsin Supreme Court, Justice Currie stated:
"Nevertheless, we consider the wide prevalence of liability insurance in personal-injury actions a proper element to be considered in making the policy decision of whether to abrogate parental immunity in negligence actions. This is because in a great majority of such actions, where such immunity has been abolished, the existence of insurance tends to negate any possible disruption of family harmony and discipline.” Goller v White, 20 Wis 2d 402, 412; 122 NW2d 193, 197 (1963).
Instead, an injured family member will merely be able to recover from an insurance company for injuries against which the company has been paid to insure.
We are persuaded that the modern rule best serves the interests of justice and fairness to all concerned. The case of Elias v Collins, supra, which provides for intra-family tort immunity is overruled. A child may maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent. Like our sister states, however, we note two exceptions to this new rule of law: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.
We recognize that this new rule represents a final departure from Elias v Collins, supra. Therefore in the interests of justice and fairness, we hold that the new rule applies only to the instant case, and to all pending and future cases. We have followed this same course before when adopting a new rule of law.
The decision of the Court of Appeals is affirmed. The cause is remanded for future proceedings in conformity with this opinion. No costs, a question of general public importance being involved.
T. M. Kavanagh, C. J., and Adams, T. G. Kavanagh, and Swainson, JJ., concurred with Williams, J.
Prior to 1891 there had been no English cases, one Scottish case and three American cases considering tort liability of parents to children. All four cases allowed liability. 19 ALR2d 423, 425. Chief Justice Peaslee, in Dunlap v Dunlap, 84 NH 352, 354; 150 A 905, 906; 71 ALR 1055, 1058 (1930), said that there "never has been a common-law rule that a child could not sue its parent”. In 1891 Hewlett v George, 68 Miss 703; 9 So 885; 13 LRA 682, held that an unemancipated child could not sue her mother for false imprisonment on the basis that it was against the peace of society and family peace to allow such suits. Subsequently most of the courts of this country followed this precedent. 19 ALR2d 423, 425-426. See Elias v Collins, 237 Mich 175, 177 (1926).
See Goller v White, 20 Wis 2d 402; 122 NW2d 193 (1963); Brennecke v Kilpatrick, 336 SW2d 68 (Mo, 1960); Briere v. Briere, 107 NH 432; 224 A2d 588 (1966); Hebel v Hebel, 435 P2d 8 (Alas, 1967); Nuelle v Wells, 154 NW2d 364 (ND, 1967); Silesky v Kelman, 281 Minn 431; 161 NW2d 631 (1968); Gelbman v Gelbman, 23 NY2d 434; 297 NYS2d 529 (1969); also, France v APA Transport Corp, 56 NJ 500; 267 A2d 490 (1970); Thurman v Etherton, 459 SW2d 402 (Ky, 1970); Streenz v Streenz, 106 Ariz 86; 471 P2d 282 (1970); Gibson v Gibson, 3 Cal 3d 914; 92 Cal Rptr 288; 479 P2d 648 (1971); Falco v Pados, 444 Pa 372; 282 A2d 351 (1971); and Smith v Kauffman, 212 Va 181; 183 SE2d 190 (1971). In all of these cases the rule of parent-child tori immunity is abrogated in varying degrees. They illustrate that the modern trend is definitely toward the elimination of such immunity.
Prosser, Torts (4 ed), § 122, pp 867-868.
Applying the analogous reasoning of Mosier the Federal District Court for the Western District of Michigan held in Brinks v Chesapeake & O R Co, 295 F Supp 1318 (WD Mich, 1969), that the doctrine of parental tort immunity no longer applied in Michigan in cases where both the parent and child are deceased as a result of the alleged tortious conduct.
Goller v White, 20 Wis 2d 402, 412; 122 NW2d 193, 197 (1963); Silesky v Kelman, 281 Minn 431, 438-439; 161 NW2d 631, 636 (1968). See also Gibson v Gibson, 3 Cal 3d 914, 919; 92 Cal Rptr 288, 291; 479 P2d 648, 653 (1971).
Incidentally, as noted in footnote 1, we believe that what we have called the modern rule is also the original common-law rule.
Goller v White, supra; Silesky v Kelman, supra.
Womack v Buchhorn, 384 Mich 718 (1971); Daley v LaCroix, 384 Mich 4 (1970); Parker v Port Huron Hospital, 361 Mich 1, 28 (1960); and Bricker v Green, 313 Mich 218 (1946). | [
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Butzel, J.
The city of Bay City is chartered and operates under the provisions of the home-rule act (CL 1948, § 117.1 et seq. [Stat Ann 1949 Rev § 5.2071 et seg.]). Its charter, prior to the purported election hereinafter referred to, provided for a board of health composed of 5 members, 3 of whom were to be duly licensed'physicians, with the power in the city commission to make such appointments.
A charter amendment providing that the board should be composed of 5 members, 1 of whom was to be a licensed physician, 1 a licensed dentist, and 1 a licensed osteopath was proposed by initiatory petition and was submitted to the electorate at a primary election on Monday, February 19, 1951, it being assumed that the amendment could be legally submitted to the electorate at such an election. Plaintiff asserts and defendants do not deny that such submission was improper for the applicable statute (PA 1947, No 87, § 21 [CL 1948, § 117.21 (Stat Ann 1949 Rev § 5.2100) ]) provides for the amendment of an existing city charter originally submitted by initiatory petition to the voters only at a regular municipal or State election. The 1947 amendment does not so provide. A primary election is not a regular election in any sense of the term. In Line v. Board of Flection Canvassers of Menominee County, 154 Mich 329 (18 LRA NS 412,16 Ann Cas 248), we held that a primary election is merely the selection of candidates for office by the members of a political party in a manner having the form of an election. Analyzing the effect of section 21 after its 1939 amendment, in Oakland County Drain Commissioner v. City of Royal Oak, 306 Mich 124, we stated (at p 151):
“It is apparent that the amendment was intended to eliminate the submission of charter amendments at primary and special elections and to require submission at a reg’ular city or State and county election.”
Plaintiff brings quo warranto by original proceedings in this Court on the relation of 3 individual former members of the board of health of Bay City, 2 of whom are citizens of Bay City. Both parties agree that a writ in the nature of a quo warranto is the proper writ to test the validity of an election. Defendants, however, contend that the challenge to the validity of the election comes too late and was not made by the proper parties. They cite the following statutory provisions:
“An information in the nature of a quo warranto may be filed in the several circuit courts of this State, as well as in the Supreme Court, and all of the provisions of this chapter shall be applicable to such proceedings, in such circuit courts, and all powers conferred upon the several judges of the Supreme Court by this chapter are hereby conferred upon the judges of the several circuit courts respectively: Provided, That no such information shall be filed and allowed by any such circuit court against any judge of the Supreme Court or any State officer.” CL 1948, § 638.26 (Stat Ann § 27.2340).
“Informations under this chapter may be filed by the prosecuting attorney of the proper county, on his own relation, or that of any citizen of the county, without leave of the court, or, by any citizen of the county by special leave of the court or a judge thereof.” CL 1948, § 638.27 (Stat Ann § 27.2341).
“A petition may be filed in the circuit court of any county of this State whenever it shall be made to appear that material fraud or error has been committed at any election in such county at which there shall have been submitted any constitutional amendment, question, or proposition to the electors of the State or any county, township, or municipality thereof.” CL 1948, § 638.28 (Stat Ann § 27.2342).
“Such’petition shall be filed within 30 days after such election by the attorney general or the prosecuting attorney of the proper county on his own relation, or on the relation of any citizen of said county without leave of the court, or by any citizen of the county by special leave of the court or a judge thereof. Such petition shall be filed against the municipality wherein such fraud or error is alleged to have been committed.” CL 1948, § 638.29 (Stat Ann § 27.2343).
Had the instant petition been brought in the circuit court CL 1948, § 638.29, supra, would bar redress, as it was not brought therein within the 30 days provided in this section. See Youells v. Morrish, 218 Mich 194; Anderson v. Levin, 218 Mich 225; Voorhies, ex rel. Bradburn, v. Nier, 222 Mich 374; Heidelmeyer v. Village of Oakwood, 222 Mich 331; Fulton Township School District, Gratiot County, v. School District No. 4 Fractional, Essex Township, Clinton County, 302 Mich 566; Lake v. Township of North Branch, 314 Mich 140; and Finlayson v. Township of West Bloomfield, 320 Mich 350.
Plaintiff, however, chose an original proceeding in this Court and contends that the Supreme Court has the power to issue original writs at any time by reason of article 7, § 4, of the Michigan Constitution which reads:
“The Supreme Court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and deter mine the same. In all other cases it shall have appellate jurisdiction only.”
This power cannot be limited by statute. See Attorney General, ex rel. Trahair, v. Landel Metropolitan District, 318 Mich 376, an original proceeding in this Court, in which it was sought to challenge the election by which the defendant district was created. It was contended that the challenge came too late by reason of the 30-day proviso. We, however, stated at pp 382, 383:
“The cases on which defendants rely refer to proceedings started in circuit court. * * * None relates to original jurisdiction in this Court in quo warranto proceedings. * * *
“The necessity for an early decision in the instant matter is urged by the parties, to settle questions that may relate to taxation.and bond issues. Under the circumstances this Court will entertain jurisdiction of the proceedings. In People, ex rel. Bennett, v. Benfield, 80 Mich 265, an original proceeding by quo warranto in this Court, it was said (p 267):
“ ‘We consider the question raised (right to office) of sufficient public importance to be entertained and passed upon.’ ”
Defendants attempt to distinguish the cited case by stating that plenary power is exercised only in cases when a remedy was not initially available and where substantial rights are affected as taxation, insurance of bonds, et cetera. However, an examination of the Landel Case reveals that the challenge there could have been properly brought in the circuit 'court within 30 days, even as in the instant case, and also that the Court, although speaking of taxation and bond issues, did not state that these were the only instanced in which a question might be of sufficient public importance to warrant the Supreme Court hearing the case and intimated by the citation of People, ex rel. Bennett, v. Benfield, supra, that the question of right to a public office might be one of those instances. It is certainly a question of very greatest importance involving the public health of the city of Bay City to have a legally constituted board of health. We find that the challenge to the validity of the election did not come too late.
Defendants, citing CL 1948, § 638.27 (Stat Ann § 27.2341), also contend that this proceeding is not brought by the proper parties in interest; that the relators, Clarence Reuter, Edwin Miller and M. J. Dardas, have no interest in the medical board, their terms thereon having expired prior to the commencement of this action. However, the attorney general, unlike the prosecuting attorney, is by CL 1948, § 638.1 (Stat Ann § 27.2315) given authority to file an information in the nature of a quo warranto on the relation of any private party without leave or on his own relation where it is alleged that an office is being held illegally, as it is here alleged. The attorney general having so acted in the instant case, the propriety of the relation is beyond question.
The case being properly before us, we hold that the submission of the proposed charter amendment to the voters at the primary election was null and void. The former charter provisions relating to the board of health of the city of Bay City, prior to the attempted amendment, herein declared void, are still in full force and effect.
Judgment will be entered accordingly; no costs, a public question being involved.
Dethmers, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit. | [
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Per Curiam.
Defendant, Joshua Thomas Hincka, appeals by right an order denying his motion for a change of custody. We affirm.
I. FACTS
Defendant and plaintiff, Kristine Lee Wardell, were married on December 31, 2007, and divorced on January 5, 2010. Their consent judgment provided for joint legal and physical custody of their daughter, who was born on July 11, 2006. On October 29, 2010, the trial court entered the parties’ most recent parenting order, which gave both parties joint legal and physical custody, specified a week-on, week-off parenting-time schedule, and specified that the child would attend school in Posen, Michigan, which was between plaintiffs home in Alpena and defendant’s home in Rogers City.
In April 2011, defendant moved to Cheboygan. He filed a motion for a change of custody, citing a change in circumstances brought about by his move and his discovery that plaintiffs husband had a criminal record. The trial court found sufficient evidence of a change in circumstances and referred the case to the Friend of the Court. Plaintiff filed a countermotion for a change of custody. The Friend of the Court recommended that primary physical custody be granted to plaintiff, with plaintiff and defendant having joint legal custody.
The trial court then conducted a trial. Defendant testified that he had part-time employment and was engaged to and living with Melody Rocco. He testified that he, Rocco, and Rocco’s two daughters lived in a three-bedroom home. He further testified that the child had a wonderful relationship with Rocco’s youngest daughter, who was the same age. He claimed that he had an excellent and affectionate relationship with the child, that the two engaged in various activities together, and that he was very engaged in her education. Defendant further testified that plaintiff would not answer the phone, return his calls, or permit him to speak with the child when the child was in plaintiffs custody.
Plaintiff testified that both she and defendant had an excellent relationship with the child. She testified that the child typically had her own room but did not always choose to sleep there. She acknowledged that even though her husband’s driver’s license had been revoked in 2006 he had driven the child around in the past, but claimed that they had discontinued the practice. She denied drinking around the child and testified that she was currently attending school full-time. She was concerned that defendant would prevent her from seeing the child if he were awarded custody.
On December 30, 2011, the trial court issued an opinion and order denying the parties’ respective motions to change custody. It noted that the current custody arrangement appeared to be working, found that the best-interest factors weighed equally in favor of the parties, and found that the only change in circumstances was defendant’s move to Cheboygan. While the trial court acknowledged that a 70-minute commute was not ideal, it concluded that it was not “so burdensome to the child as to justify disruption of the most recent parenting time order,” which “gives [the child] maximum exposure to both parents” and “allows bonding with siblings as well as her soon-to-be step-siblings.”
II. JURISDICTION
Plaintiff contends that this Court should dismiss defendant’s claim of appeal for lack of jurisdiction because the trial court’s December 30, 2011, opinion and order is not a final order under MCR 7.202(6)(a). We disagree.
Whether this Court has jurisdiction to hear an appeal is an issue that we review de novo. Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 132-133; 624 NW2d 197 (2000). MCR 7.203(A)(1) provides that this Court has jurisdiction of an appeal of right from “[a] final judgment or final order of the circuit court... as defined in MCR 7.202(6)....” Under MCR 7.202(6)(a)(iii), a “final order” includes, “in a domestic relations action, a postjudgment order affecting the custody of a minor.” Resolution of this jurisdictional question, therefore, turns on whether the trial court’s December 30, 2011, postjudgment order was an order “affecting the custody of a minor.” See MCR 7.202(6)(a)(iii).
Although not addressing the issue in the context of a jurisdictional challenge, this Court has stated that a trial court’s order denying a petition for a change of custody is “an order affecting custody.” Rivette v Rose-Molina, 278 Mich App 327, 328, 333; 750 NW2d 603 (2008). Indeed, this Court has in practice treated orders denying a motion for a change of custody as appealable by right. See, e.g., Corporan v Henton, 282 Mich App 599, 600-603; 766 NW2d 903 (2009); Treutle v Treutle, 197 Mich App 690, 691-692; 495 NW2d 836 (1992); Schubring v Schubring, 190 Mich App 468, 469-470; 476 NW2d 434 (1991); Sedlar v Sedlar, 165 Mich App 71, 72-74; 419 NW2d 18 (1987).
Furthermore, applying the principles of court-rule interpretation to MCR 7.202(6) (a) (iii), we conclude that the trial court’s December 30, 2011, postjudgment order is an order “affecting the custody of a minor.” “Interpretation of a court rule is subject to the same basic principles which govern statutory interpretation.” St George Greek Orthodox Church of Southgate, Mich v Laupmanis Assoc, PC, 204 Mich App 278, 282; 514 NW2d 516 (1994). “The mission of a court engaged in statutory construction is to interpret and apply the statute in accordance with the intent of the drafter, which, in the first instance, must be determined from the plain meaning of the language used.” Mahrle v Danke, 216 Mich App 343, 348; 549 NW2d 56 (1996). To ascertain the plain meaning of a term that is not defined by statute or court rule, as is the case here given that the court rules do not define “affecting,” this Court may consult a dictionary to determine the plain meaning of the term. Id. at 348-349; Vodvarka v Grasmeyer, 259 Mich App 499, 510; 675 NW2d 847 (2003). When consulting a dictionary, this Court should be cognizant of the context in which the term is used. Vodvarka, 259 Mich App at 510.
Black’s Law Dictionary defines “affect” as “[m]ost generally, to produce an effect on; to influence in some way.” Black’s Law Dictionary (9th ed), p 65. In a custody dispute, one could argue, as plaintiff does, that if the trial court’s order does not change custody, it does not produce an effect on custody and therefore is not appealable of right. However, one could also argue that when making determinations regarding the custody of a minor, a trial court’s ruling necessarily has an effect on and influences where the child will live and, therefore, is one affecting the custody of a minor. Furthermore, the context in which the term is used supports the latter interpretation. MCR 7.202(6) (a) (iii) carves out as a final order among postjudgment orders in domestic relations actions those that affect the custody of a minor, not those that “change” the custody of a minor. As this Court’s long history of treating orders denying motions to change custody as orders appealable by right demonstrates, a decision regarding the custody of a minor is of the utmost importance regardless of whether the decision changes the custody situation or keeps it as is. We interpret MCR 7.202(6) (a) (iii) as including orders wherein a motion to change custody has been denied.
Accordingly, this Court has jurisdiction over this appeal under MCR 7.203(A)(1) because the trial court’s December 30, 2011, opinion and order is a final order under MCR 7.202(6)(a)(iii).
III. CHANGE OF CUSTODY
Defendant argues that the trial court abused its discretion by denying his motion for a change of custody because it ignored the great weight of the evidence at trial regarding the best-interest factors, which defendant argues was overwhelmingly in his favor. We do not agree.
Three standards of review apply to child custody cases. LaFleche v Ybarra, 242 Mich App 692, 695; 619 NW2d 738 (2000). The great-weight-of-the-evidence standard applies to all findings of fact; under this standard, “the trial court’s findings will be sustained unless the evidence clearly preponderates in the opposite direction.” Id. “An abuse of discretion standard applies to the trial court’s discretionary rulings such as custody decisions.” Id. Finally, “[a] trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law.” Id. (citation and quotation marks omitted).
When an established custodial environment exists, a change in custody may be made only upon a showing by clear and convincing evidence that the change is in the child’s best interests. MCL 722.27(l)(c). The child’s best interests are evaluated under factors set forth in MCL 722.23:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
In the instant case, the trial court evaluated the above factors and concluded that factors (h), (i), (k), and (l) were not relevant to the dispute; that factors (a), (c), (d), (e), (f), (g), and (j) were equal between plaintiff and defendant; and that factor (b) might weigh slightly in favor of plaintiff rather than defendant. Given these determinations and the fact that the only real changed circumstance since the institution of the prior custody arrangement was defendant’s move to Cheboygan, the trial court concluded that no change in custody was warranted.
Contrary to defendant’s assertions, the findings of the trial court do not contradict the great weight of the evidence. Both parties submitted testimony regarding their love of the child, the child’s affection toward them, and the suitability of their respective homes. Each party also raised valid criticisms of the other party but acknowledged that the other party loved the child and that the child appeared to be thriving. Most importantly, the record shows that the only substantive changed circumstance before the initiation of the instant dispute was defendant’s move to Cheboygan, which increased the child’s commute time to school from about 20 minutes to roughly 70 minutes. While the child might benefit from a reduced commute time during the weeks she is in defendant’s custody, the increased commute time did not affect her performance at school given that plaintiff and defendant testified that she was doing “really good” and “great” in school. Moreover, the testimony at trial established that when the child is with defendant, she wakes up at 6:00 a.m. to go to school and goes to sleep at 8:00 p.m.; these are not abnormal hours for a child. Accordingly, the trial court did not abuse its discretion when it concluded that a 50-minute reduction in commute time does not clearly and convincingly outweigh the benefits of a stable, successful, and unchanging joint-custody relationship.
Affirmed.
Beckering, P.J., and Fitzgerald and Stephens, JJ., concurred.
Even if we were to conclude that the trial court’s December 30, 2011, opinion and order is not a final order appealable by right, we would still, in the interest of judicial economy, exercise our discretion to treat defendant’s claim of appeal as an application for leave to appeal, grant leave, and address the change-of-custody issue presented. See In re Investigative Subpoena, 258 Mich App 507, 508 n 2; 671 NW2d 570 (2003).
Defendant focuses heavily on plaintiffs moral fitness, including her false statement about whether she had consumed alcohol in the prior couple of years and allowing her husband to drive without a license. The trial court found that “neither party has particularly impressed the Court with sound judgment.” As the trial court correctly noted, factor (f) evaluates the parties’ relative moral fitness only as it relates to how they will function as parents rather than with respect to who is the morally superior adult. Fletcher v Fletcher, 447 Mich 871, 887; 526 NW2d 889 (1994). The trial court noted that “[djuring the period this Court has had jurisdiction over this case, both parties have exhibited moral flaws, but there has never been any showing that either parent currently abuses alcohol or drugs, nor abuses or neglects this child.” The trial court’s finding that factor (f) was equal between the parties was not against the great weight of the evidence. | [
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Per Curiam.
Defendant James Kiessel appeals by right a circuit court order granting plaintiffs the Leelanau County Sheriff and Leelanau County a writ of superintending control vacating an order of the Leelanau County Prosecuting Attorney (PA), who was serving as a hearing officer under the veterans preference act (VPA), MCL 35.401 et seq. The PA’s order had directed the sheriff to reinstate Kiessel, with back pay, as a deputy. The circuit court held that the PA lacked jurisdiction under the VPA to review the sheriffs discharge of Kiessel, an honorably discharged veteran, because under MCL 51.70, deputies serve at a sheriffs pleasure. We hold, for the reasons discussed hereafter, that the VPA does authorize the PA to review the sheriffs discharge of Kiessel and, if appropriate, to order his “reinstatement at the same rate of pay received by him at the date of dismissal,” with back pay. MCL 35.402. But any order of reinstatement must recognize the discretion vested in the sheriff regarding the manner in which the duties of the office are fulfilled, including the delegation of law enforcement powers. See Fraternal Order of Police, Ionia Co Lodge No. 157 v Bensinger, 122 Mich App 437, 445-446; 333 NW2d 73 (1983); Labor Mediation Bd v Tuscola Co Sheriff, 25 Mich App 159, 164; 181 NW2d 44 (1970). Accordingly, we vacate the writ of superintending control and remand to the circuit court to consider in the first instance the merits of plaintiffs’ appeal of the PA’s order.
I. KIESSEL DID NOT WAIVE APPELLATE REVIEW
We first reject plaintiffs’ argument that Kiessel waived appellate review by failing to furnish, as required by MCR 7.210(B)(1)(a), the complete transcripts of the VPA proceedings and a hearing held on October 25, 2010, when the circuit court remanded this case to the PA to consider the jurisdictional question at issue in this appeal. Plaintiffs contend that the failure to file the “full transcript,” whether relevant or not to the issues on appeal, constitutes a waiver of appellate review. See, e.g., Reed v Reed, 265 Mich App 131, 160-161; 693 NW2d 825 (2005), and Nye v Gable, Nelson & Murphy, 169 Mich App 411, 413-414; 425 NW2d 797 (1988).
Kiessel argues that he has now complied with MCR 7.210(B)(1)(a) by providing transcripts of all proceedings in the circuit court. He further contends that the failure to initially file some transcripts should not constitute a waiver of his right to appeal because the missing transcripts were not relevant to the issues on appeal. Kiessel also asserts that the issues on appeal present legal questions that this Court reviews de novo, and the omitted transcripts are not necessary for this Court’s review. Additionally, he notes that the VPA hearing transcripts are part of the circuit court record before this Court.
We find Kiessel’s arguments have merit and conclude that he has not waived his right to appellate review.
II. FACTS AND PROCEEDINGS
On October 30, 2009, the elected Sheriff of Leelanau County, Michael Olstersdorf, terminated Kiessel from his position as a deputy sheriff with the rank of sergeant for “severe misconduct” in the arrest of two persons. The parties agree that Kiessel is an honorably discharged veteran under Michigan law who would ordinarily have a right under the VPA to a hearing regarding his discharge. MCL 35.401; MCL 35.402. Kiessel timely requested a hearing before the statutory hearing officer, Leelanau County Prosecutor Joseph T. Hubbell, naming both the sheriff and the county as respondents. After a three-day hearing, the PA issued a lengthy opinion and order on May 12, 2010, finding that Kiessel’s conduct did not constitute “official misconduct” or “serious or willful neglect in the performance of duty” under MCL 35.402 and ordering the sheriff to reinstate Kiessel to his position with full back pay and benefits.
Plaintiffs timely filed a complaint for a writ of superintending control in the circuit court, asserting among other reasons for the issuance of a writ that the PA was without jurisdiction to order an elected sheriff to hire, fire, or reinstate any deputy, and also was without jurisdiction to order the county to provide back pay to a discharged deputy. Specifically, plaintiffs asserted that the sheriffs constitutional authority, Const 1963, art 7, §§ 4 and 6, and statutory authority to appoint deputies, MCL 51.70, superseded the authority the VPA granted to the PA under MCL 35.402. At a circuit court hearing on June 28, 2010, plaintiffs’ counsel conceded this issue had not been raised before the PA. The circuit court ruled it would remand the matter to the PA to consider in the first instance whether the PA had subject matter jurisdiction of Kiessel’s claim for reinstatement under the VPA. The court entered its order of remand on July 19, 2010.
On September 17, 2010, the PA issued another opinion and order, upholding his own jurisdiction under the VPA, confirming his original ruling in favor of Kiessel, and again ordering the sheriff to reinstate Kiessel with back pay. Alternatively, the PA ruled he had authority under the VPA to order the county, as Kiessel’s coemployer, to reinstate Kiessel with back pay.
The circuit court heard oral arguments on the jurisdictional issue on November 12, 2010, and concluded that deputy sheriffs did not fall within the provisions of the VPA. The court reasoned that a sheriff’s “power to appoint and revoke law enforcement powers . . . override all statutory and contract rights of the deputy.” The court noted that although the sheriff’s power to appoint and revoke the appointment of deputies was codified in MCL 51.70, it was of “constitutional magnitude and therefore cannot be overridden by a statute such as the Veterans Preference Act or any other statute.” The circuit court also relied on Abt v Wilcox, 264 Mich 183; 249 NW 483 (1933), which held that the VPA does not protect a deputy appointed by a sheriff whose term has expired when a newly elected sheriff fails to reappoint the deputy. The circuit court reasoned that because the VPA does not apply to end-of-term reappointments, the sheriff’s exercise of the plenary authority under MCL 51.70 was not subject to review under the VPA in other situations.
On December 9, 2010, the circuit court entered its order providing that “for the reasons stated on the record,” the two orders the PA had issued regarding Kiessel “are hereby vacated.” The same order denied Kiessel’s motions for summary disposition. The circuit court denied reconsideration on January 10, 2011. Kiessel appeals by right.
III. ANALYSIS
This case presents issues of constitutional and statutory interpretation, which are both questions of law this Court reviews de novo. Niles Twp v Berrien Co Bd of Comm’rs, 261 Mich App 308, 312; 683 NW2d 148 (2004). MCL 51.70, on which the circuit court and plaintiffs rely, provides in pertinent part: “Each sheriff may appoint 1 or more deputy sheriffs at the sheriffs pleasure, and may revoke those appointments at any time.” By its plain terms this provision contains no limit on the discretion of the sheriff to appoint and revoke the appointment of deputy sheriffs. But Kiessel argues that the VPA limits MCL 51.70 by providing that the sheriff may discharge deputies who are also honorably discharged veterans only for just cause.
We first reject plaintiffs’ argument that because the sheriff is a constitutional officer the Legislature may not limit the sheriffs common-law or statutory ability to discharge deputies at will. In Bensinger, 122 Mich App at 444, this Court noted that “the Legislature may not vary the duties and powers of the sheriff in a way which changes the legal character of the office.” But this Court has also held that “the sheriffs power to hire, fire and discipline is not absolute.” Nat’l Union of Police Officers Local 502-M, AFL-CIO v Wayne Co Bd of Comm’rs, 93 Mich App 76, 89; 286 NW2d 242 (1979). Indeed, our Constitution expressly confers on the Legislature the authority to prescribe the “duties and powers” of the sheriff. Const 1963, art 7, § 4 (“There shall be elected for four-year terms in each organized county a sheriff. . . whose duties and powers shall be provided by law.”). Moreover, the Legislature has the authority to alter or abolish the common law. Const 1963, art 3, § 7; Hinojosa v Dep’t of Natural Resources, 263 Mich App 537, 546; 688 NW2d 550 (2004). Consequently, Michigan’s Constitution does not preclude the Legislature from limiting the sheriffs authority to discharge deputies at will, whether that authority emanates from the common law or from statute.
Second, because nothing in the Constitution prevents the Legislature from limiting the sheriffs ability to discharge deputies at will, the issue presented in this case is one solely of statutory interpretation: Did the Legislature intend the VPA as an exception to a sheriffs authority under MCL 51.70 to appoint or remove a deputy at will, or did the Legislature intend that the VPA would not apply to honorably discharged veterans who are appointed sheriffs deputies? Although this is a close question, we conclude that appellant presents the better arguments regarding statutory construction: the Legislature intended the VPA to apply to all public employees who are honorably discharged veterans, including those appointed to the position of deputy sheriff.
While each party argues their side should prevail because the statute on which they rely is specific and the other general, the fact remains that the pertinent part of MCL 51.70 authorizing the sheriff to appoint deputy sheriffs and to revoke those appointments “at his pleasure,” 1846 RS, ch 14, § 70 (amended 1847 PA 105, § 4), or “at any time,” according to the modern version of MCL 51.70 as amended by 1978 PA 635, has remained essentially unchanged since its adoption in 1846. See Local 1518, Council No 55, American Federation of State, Co & Muni Employees, AFL-CIO v St Clair Co Sheriff, 407 Mich 1, 7; 281 NW2d 313 (1979). The Legislature is presumed to be fully aware of both the common law, Walters v Leech, 279 Mich App 707, 710; 761 NW2d 143 (2008), and existing statutes, Craig v Detroit Pub Sch Chief Executive Officer, 265 Mich App 572, 575; 697 NW2d 529 (2005). The Legislature enacted the VPA without an exception for deputy sheriffs. 1897 PA 205; MCL 35.401 et seq. Section 2 of the VPA, MCL 35.402, provides that honorably discharged veterans may be removed, transferred, or suspended from public employment only for cause, after written notice and a hearing, which in respect to county employees, must occur before the prosecuting attorney. The only exceptions to these requirements were added to the VPA by 1931 PA 67 for “heads of departments, members of commissions, and boards and heads of institutions appointed by the governor and officers appointed directly by the mayor of a city under the provisions of a charter, and first deputies of such heads of departments, heads of institutions and officers . . . .” These remain the only exceptions to the VPA. MCL 35.402; Jackson v Detroit Police Chief, 201 Mich App 173, 175; 506 NW2d 251 (1993).
The fact that the Legislature, pertinent to this case, has exempted only “first deputies” from the VPA logically implies that the VPA applies to other deputies. See Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006). The provision of an exemption for only “first deputies” “eliminates the possibility of their [sic] being other exceptions under the legal maxim expressio unius est exclusio alterius.” Id. This legal maxim means “ ‘[t]he expression of one thing is the exclusion of another.’ ” Id. at 74 n 8, quoting Black’s Law Dictionary (7th ed). Because the exception to the VPA for “first deputies” — which implies that regular deputies are protected by the VPA — was enacted after MCL 51.70 (see 1846 RS, ch 14, § 70, as amended by 1847 PA 105, § 4), the last enacted substantive provision, the VPA, as amended by 1931 PA 67, controls. This is so because “the Legislature is aware of the existence of the law in effect at the time of its enactments and recognizes that, since one Legislature cannot bind the power of its successor, existing statutory language cannot be a bar to further exceptions set forth in subsequent, substantive enactments.” Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 713; 664 NW2d 193 (2003).
Additionally, the fact that the VPA is remedial in nature — for the benefit of honorably discharged veterans — also militates in favor of its application to sheriffs’ deputies. Remedial statutes are to be liberally construed in favor of the persons intended to be benefited. Empson-Laviolette v Crago, 280 Mich App 620, 629; 760 NW2d 793 (2008). The VPA was originally enacted for the benefit of Civil War veterans, but over the years was also extended to other honorably discharged veterans who had served this country during time of war or other “emergency condition.” MCL 35.61; MCL 35.401; Beadling v Governor, 106 Mich App 530, 534-535; 308 NW2d 269 (1981). The VPA “was enacted for the purpose of discharging, in a measure, the debt of gratitude the public owes to veterans who have served in the armed services in time of war, by granting them a preference in original employment and retention thereof in public service.” Valentine v Redford Twp Supervisor, 371 Mich 138, 145; 123 NW2d 227 (1963). Consequently, because the VPA “was passed for a commendable purpose,” Smith v Flint City Comm, 258 Mich 698, 700; 242 NW 814 (1932), it “should be liberally construed,” Abt, 264 Mich at 185.
We also find unpersuasive plaintiffs’ suggestion that the sheriff is not a “public department” as that term is used in the VPA. The right to a pre- or postdischarge hearing regarding removal, transfer, or suspension for cause extends only to an honorably discharged veteran “holding an office or employment in any public department or public works of the state or any county, city or township or village of the state .. . .” MCL 35.402. This language has been interpreted to mean all public employees, with the limited exceptions noted already. Jackson, 201 Mich App at 175. Soon after the VPA was enacted, our Supreme Court differentiated the terms “public departments” from “public works” as used in the act. Ellis v Common Council of Grand Rapids, 123 Mich 567, 569; 82 NW 244 (1900). The Court defined “public department” as “ ‘a division of official duties or functions; a branch of government; a distinct part of a governmental organization: as, the legislative, executive, and judicial departments; the department of state, of the treasury....’” Id. (citation omitted); see also Beadling, 106 Mich App at 535. It cannot be disputed that a sheriff and the sheriffs employees, colloquially known as a “sheriffs department,” are “ ‘a distinct part of a governmental organization[.]’ ” Ellis, 123 Mich at 569 (citation omitted). Indeed, plaintiffs argue that a sheriffs common-law authority and prerogatives are so unique that they cannot be trifled with by the Legislature. Consequently, a sheriff and the sheriffs employees — a “sheriffs department” — is a “public department” within the meaning of the VPA because it is “an agency of the county.” Bayer v Macomb Co Sheriff, 29 Mich App 171, 175; 185 NW2d 40 (1970).
As noted already, plaintiffs argue that Const 1963, art 7, § 4 imbues the sheriff as a constitutional officer with common-law powers that the Legislature may not limit, including the authority to discharge deputies at will. In Allor v Wayne Co Bd of Auditors, 43 Mich 76; 4 NW 492 (1880), the Court considered the propriety of the city of Detroit’s not paying for services rendered by a constable in executing an arrest warrant issued by a justice of peace. The actual question was whether the power of the justices to issue process and the power of constables to serve process could be limited by the Legislature. Id. at 97. The Court held that when offices that have a known common-law legal character are established in our Constitution, the Legislature cannot “retainG the names but destroyG the powers of such officers” or “change those duties as to practically change the office.” Id. at 102-103. We applied Allor in Brownstown Twp v Wayne Co, 68 Mich App 244, 247-248; 242 NW2d 538 (1976):
The office of sheriff is a constitutional office with duties and powers provided by law. Const 1963, art 7, § 4, Labor Mediation Board v Tuscola County Sheriff, 25 Mich App 159, 162; 181 NW2d 44 (1970). ... The Legislature may vary the duties of a constitutional office, but it may not change the duties so as to destroy the power to perform the duties of the office.
In Bensinger, 122 Mich App at 444, citing Allor and Brownstown Twp, the Court opined “that the office of sheriff has a known legal character and . . . the Legislature may not vary the duties and powers of the sheriff in a way which changes the legal character of the office.”
At common law, the sheriffs duties were similar to that of constables, who were “the local peace officers of their vicinage, the ministerial officers of justices of the peace, and the bailiffs of courts of record of criminal jurisdiction in the county.” Allor, 43 Mich at 103. “English sheriffs (or ‘shire-reeves’) were the King’s ‘reeves’ (officers or agents) in the ‘shires’ (counties), at least after the Norman Conquest in 1066.” McMillian v Monroe Co, 520 US 781, 793; 117 S Ct 1734; 138 LE2d 1 (1997). Thus, “[a]lthough chosen locally by the shire’s inhabitants, the sheriff did ‘all the king’s business in the county,’ and was ‘the keeper of the king’s peace.’ ” Id. (citations omitted). “ ‘In the exercise of executive and administrative functions, in conserving the public peace, in vindicating the law, and in preserving the rights of the government, he (the sheriff) represents the sovereignty of the State and he has no superior in his county[.]’ ” Id. at 794, quoting 1 Anderson, A Treatise on the Law of Sheriffs, Coroners and Constables, § 6, p 5 (1941). Our Supreme Court in White v East Saginaw, 43 Mich 567, 570; 6 NW 86 (1880), quoting People v Edwards, 9 Cal 286 (1858), described the sheriffs common-law duties as including, “ ‘the execution of the orders, judgments, and process of the courts; the preservation of the peace; the arrest and detention of persons charged with the commission of a public offense; the service of papers in actions,’ ” and being “ ‘more or less directly connected with the administration of justice ....’” And, in Brownstown Twp, 68 Mich App at 249, the Court observed:
Michigan has codified the common law duties of the sheriff with little variance. For instance, sheriffs may execute all lawful orders and process of the circuit courts of this state. MCLA 600.582. Sheriffs have charge and custody of the county jail and its prisoners. MCLA 51.75. Likewise, statutory law impliedly recognizes the duty of the sheriff to serve process in civil or criminal cases, preserve the peace, and apprehend persons committing a felony or a breach of the peace, because the sheriff may recruit suitable aid in performing these functions. MCL 600.584. [Citations omitted.]
Plaintiffs cite no authority for the proposition that the sheriffs statutory ability to discharge deputies without cause was among the common-law powers of the sheriff. But even assuming that the common law recognized that the sheriff had such power, plaintiffs present no meaningful argument that the power of discharge without cause is essential to the common-law legal character of the office of sheriff, or that its legislative regulation would destroy the powers of the sheriff to perform the known common-law “duties and powers of the sheriff in a way which changes the legal character of the office.” Bensinger, 122 Mich App at 444. If the sheriffs discretion to appoint and remove deputies at will is purely statutory, then surely pursuant to its constitutional authority, Const 1963, art 7, § 4 (the sheriffs “duties and powers shall be provided by law”), the Legislature may impose reasonable limitations on the statutory authority of the sheriff to appoint and remove deputies at will.
The Michigan Sheriffs’ Association, as amicus curiae, does cite authority in support of plaintiffs’ position that a sheriffs common-law authority includes appointing and removing deputies at will, specifically, 1 Anderson, Sheriffs, Coroners and Constables, §§ 60, 85, and 145, pp 55-56, 76-77, and 142. In Rucker v Harford Co, 316 Md 275, 290; 558 A2d 399 (1989), Maryland’s highest court, in concluding that a sheriff and deputy sheriffs were state officials, cited the same authority and opined, “[a]mong the common-law powers and duties of a sheriff was the duty to appoint, direct, and remove deputies.” We observe that the Rucker Court also noted that “[t]hese common law duties have been regulated somewhat by the [Maryland] General Assembly. Thus, statutes prescribe the number of deputies a sheriff may hire, mandate the training deputies are to receive, and limit a sheriffs power to fire a deputy at will.” Id. at 290-291 (citations omitted).
As noted already, our Constitution authorizes the Legislature to alter or abolish the common law. Const 1963, art 3, § 7. And both this Court and our Supreme Court have recognized the Legislature’s authority to place reasonable limits on the statutory authority of sheriffs under MCL 51.70 to appoint and remove deputies at will. See Locke v Macomb Co, 387 Mich 634, 639; 199 NW2d 166 (1972) (holding that an act adopted by the Legislature establishing a civil service system for sheriffs’ departments in certain counties, MCL 51.351 et seq., superseded MCL 51.70); Cyrus v Calhoun Co Sheriff, 85 Mich App 397, 400; 271 NW2d 249 (1978) (holding that MCL 338.1726(2), prohibiting discharge based solely on the results of a polygraph test, limited a sheriffs authority under MCL 51.70); Nat’l Union of Police Officers, 93 Mich App at 83-89 (holding that the sheriffs power to hire, fire, and discipline deputies under MCL 51.70 may be limited by a collective bargaining agreement [CBA] entered into under the public employment relations act [PERA], MCL 423.201 et seq.); and Bensinger, 122 Mich App at 444-446 (upholding an arbitration ruling that had ordered the reinstatement with back pay of a fired deputy but had not required that the sheriff delegate any law enforcement powers to the reinstated deputy), following Nat’l Union of Police Officers.
Although this Court has recognized the Legislature’s authority to reasonably limit the sheriffs statutory authority to appoint and remove deputies at will, it also has respected the sheriffs exercise of discretion regarding the manner in which the sheriff performs his or her duties and to whom the sheriff delegates his or her law enforcement powers. In Labor Mediation Bd, 25 Mich App at 161-162, the Court addressed the issue of the enforcement, under § 16 of PERA, MCL 423.216, of a decision finding the sheriff guilty of an unfair labor practice in discharging a deputy and ruling that the deputy should be reinstated with back pay as a road patrol officer. The Michigan Labor Mediation Board would not accept the sheriffs offer to reinstate the deputy “at his former pay, with the same hours, same leave, and any other fringe benefits,” but assign him “to the duties of turnkey of the jail.” Id. at 161. This Court observed that “for the sheriff to conduct his office in an orderly fashion, it is necessary for him to determine which deputy shall be assigned to certain duties.” Id. at 164. This Court held that the sheriffs compromise complied with the labor board’s original ruling, opining:
It is not the prerogative of deputies to choose their duties .... Inasmuch as the sheriff is the chief police officer having to do with law enforcement in the county, he should not be hampered in his administration of the office by any agency or board as to the actual assignment of duties to be performed by a sheriffs deputy. [Id.]
The Court in Nat’l Union of Police Officers, 93 Mich App at 89, employed similar reasoning and compromise between the sheriffs discretionary law enforcement duties and limitations placed on the sheriffs statutory authority to revoke the appointment of a deputy. The Court held that “the sheriffs power to hire, fire and discipline is not absolute” and “is limited by PERA.” Id. Nevertheless, the Court held “the matter of which of [the sheriffs] deputies shall be delegated the powers of law enforcement entrusted to him by the constitution is a matter exclusively within [the sheriffs] discretion and inherent in the nature of his office, and may neither be infringed upon by the Legislature nor delegated to a third party.” Id. (citations omitted). In Bensinger, an arbitrator, appointed pursuant to a CBA grievance procedure, ordered the reinstatement with back pay of a discharged deputy sheriff. The circuit court upheld the arbitrator’s order except that the sheriff was not required to reinstate the deputy’s law enforcement powers. The Bensinger Court affirmed the circuit court, opining “Nat’l Union of Police Officers represents a delicate balancing of the constitutional roles of the sheriff and the Legislature and no convincing reason to disturb that balance has been presented here.” Bensinger, 122 Mich App at 445-446.
Plaintiffs also argue that the prosecutor’s review under the VPA of a sheriffs exercise of discretion to appoint or remove deputies would be unconstitutional under the separation of powers doctrine, citing Beadling, 106 Mich App at 536-537. That case held that Const 1963, art 3, § 2 would not permit the Governor to review, under the VPA, the Legislature’s discharge of one of its employees. “The concept of separation of powers would be violated if the executive branch was [sic] allowed to judge the competency of a discharged employee of the legislative branch and order reinstatement.” Beadling, 106 Mich App at 536. The constitutional principle of the separation of powers does not apply to one executive branch officer (the prosecutor) reviewing whether another executive branch officer (the sheriff) complied with MCL 35.402, limiting the removal, transfer, or suspension of honorably discharged veterans.
Finally, the reliance of plaintiffs and amicus curiae on Abt v Wilcox, 264 Mich 183, and Washington ex rel Day v King Co, 50 Wash 2d 427; 312 P2d 637 (1957), is misplaced. In Abt, our Supreme Court held that a deputy sheriff, an honorably discharged veteran who had been appointed by a sheriff whose term had expired, did not have a right under § 2 of the VPA to be reinstated as a deputy of the new sheriff. The Court opined, “[i]f we concede . . . that the office of sheriff is a ‘public department’ . . . and that a deputy sheriff could not be removed or suspended without cause by the sheriff during his term of office, it does not follow that the appointment does not terminate on the expiration of the term to which the sheriff has been elected.” Abt, 264 Mich at 185. The Court concluded that the deputy’s “term of office expired . . . with that of the sheriff who appointed him, and the order denying the writ of mandamus to reinstate him is affirmed.” Id. at 186. The Day case, similar to Abt, involved deputies of a former sheriff seeking to compel reappointment by the newly elected sheriff under that state’s VPA. Day, 50 Wash 2d at 427-428. The Court held that “[t]he deputies of the former sheriff.. . cannot tie the hands of succeeding sheriffs.” Id. at 430. Neither Abt nor Day has any application to the facts of this case, which involves the midterm discharge of a deputy by the appointing sheriff.
The other issues the parties discuss are rendered moot by our conclusions that the VPA is constitutional as applied to deputy sheriffs and is a reasonable restriction on the otherwise absolute discretion conveyed to sheriffs by MCL 51.70. In addition, although the parties argue the merits of the prosecutor’s ruling, the circuit court has yet to address them. Accordingly, we vacate the writ of superintending control and remand to the circuit court to consider in the first instance the merits of plaintiffs’ appeal of the prosecutor’s order. We do not retain jurisdiction. Because a question of public policy was involved, no costs are taxable under MCR 7.219.
MARKEY, EJ., and BECKERING and M. J. KELLY, JJ., concurred.
One person was arrested for obstructing police, but the PA declined to prosecute because he concluded that the arrested person could lawfully refuse, under the Fourth Amendment, Kiessel’s oral command to produce that person’s son from within their home. In his VPA ruling, the PA found that “Kiessel was incorrect in arresting [the person] under these circumstances, [but] . .. this error in judgment is not the result of bad motives or malfeasance by Kiessel, but rather, the error was directly attributable to the lack of training he received while employed at the Sheriff Department [sic].”
Kiessel filed a counterclaim for mandamus to enforce the PA’s ruling.
The VPA provides that honorably discharged veterans may be removed, suspended, or transferred for “official misconduct, habitual, serious or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency ... .” MCL 35.402.
Cf. Ellis v Common Council of Grand, Rapids, 123 Mich 567, 569; 82 NW 244 (1900) (referring to the VPA as a “penal statute” not subject to judicial expansion). As explained in Beadling v Governor, 106 Mich App 530, 535; 308 NW2d 269 (1981), the Ellis decision was superseded by statutory amendment, 1907 PA 329.
Plaintiffs concede this point in their brief on appeal.
Allor was overruled in part on other grounds by Averill v Bay City Justice of the Peace, 74 Mich 296 (1889), as stated by In re Slattery, 310 Mich 458, 465-466 (1945).
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.” | [
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Wilder, P.J.
In this case involving a commercial real-estate contractual relationship, plaintiff, Majestic Golf LLC, appeals as of right from an opinion and order granting it summary disposition in part and denying it summary disposition in part. Defendant, Lake Walden Country Club, Inc., cross-appeals as of right from the same order. We affirm in part, reverse in part, and remand.
I. BASIC FACTS
In 1991, Waldenwoods Properties, L.L.C. (WPL) started planning for a “golf course-real estate development” on approximately 1,400 acres of land it owned. As planned, the golf course was to be constructed on approximately 400 acres, and residential properties were going to surround the golf course. WPL planned to lease the land for the golf course (“the Golf Property” or “the Premises”) to a different entity that would be responsible for constructing and operating the golf course.
On December 8, 1992, WPL (as landlord) and defendant (as tenant) entered into a lease agreement (the Lease) for a period of 25 years. The Lease contained the following relevant paragraphs:
17. OPTION TO PURCHASE. Tenant is hereby granted an exclusive option to purchase the Premises on the following terms and conditions:
A. The option shall be exercisable at any time during the final ten (10) years of the Lease term, excluding however the final six (6) months.
B. Exercise of the option shall be in writing, delivered to Landlord.
C. The option may be exercised only if Tenant is not in default of this Lease at the time of exercise.
D. The price shall be determined by appraisal of the fair market value of the Premises as of the date of exercise of the option, but in the condition and state they are in as of the date of executing this Lease, with the assumption they are not subject to this Lease and are restricted to golf course use.
H. Each party at its own expense shall retain an appraiser within thirty (30) days after the option is exercised. Within ninety (90) days after the option is exercised, the parties shall exchange appraisals. If the higher is no more than Ten Percent (10%) higher than the lower, the average of the two (2) shall be the purchase price. If the higher is more than Ten Percent (10%) higher than the lower, the two appraisers within thirty (30) days shall select a third appraiser who shall review the two (2) appraisals and within an additional (30) days determine the purchase price, which shall be no less than the lower appraisal and no higher than the higher appraisal. The cost of the third appraiser shall be borne equally by the parties.
K. If this Lease terminates for any reason prior to Tenant exercising its option to purchase, the option shall automatically terminate on termination of the Lease.
22. LANDLORD’S EASEMENTS AND ROAD CROSSINGS. Tenant shall permit drainage and utility easements and road crossings to be developed by Landlord on the Premises as required to permit development to occur on Landlord’s Other Real Estate. The easements and crossings shall be installed by Landlord at its expense but located in areas mutually agreeable. The utilities and roads shall be installed in such a manner as to ensure that the integrity of the golf course in [sic] preserved, leaving the golf course in equal or better condition. ■
26. DEFAULT. Each of the following events shall be a default hereunder by Tenant and a breach of this Lease.
D. If Tenant shall fail to perform any of the agreements, terms, covenants, or conditions hereof on Tenant’s part to be performed (other than payment of rent) and such non-performance shall continue for a period within which performance is required to be made by specific provision of this Lease, or if no such period is so provided for, a period of thirty (30) days after notice thereof by Landlord to Tenant, or if such performance cannot be reasonably had within such thirty (30) day period, Tenant shall not in good faith have commenced such performance within such thirty (30) day period and shall not diligently proceed therewith to completion;
If any event specified above shall occur and be continuing, Landlord shall have the right to cancel and terminate this Lease, as well as all of the right, title and interest of Tenant hereunder.
31. NOTICES. Whenever it is provided herein that notice, demand, request, or other communication shall or may be given to or served upon either of the parties by the other, and whenever either of the parties shall desire to • give or serve upon the other any notice, demand, request, or other communication with respect hereto or with respect to the Premises, each such notice, demand, request, or other communication shall be in writing and, any law or statute to the contrary notwithstanding, shall be effective for any purpose if given or served as follows:
A. If by Landlord, by mailing the same to Tenant by registered mail, postage prepaid, return receipt requested, addressed to Tenant at 4662 Okemos Road, Okemos, Michigan 48864, or at such other address as Tenant may from time to time designate by notice given to Landlord by registered mail.
At the time the Lease was originally signed, both parties anticipated the construction of the “golf-real estate development.” Defendant was to develop the then-undeveloped Golf Property into 27 golf course holes, and WPL was to develop the surrounding land into residential real estate.
Defendant complied with its obligation under the Lease to construct the 27-hole golf course. Plaintiff has not yet initiated construction on the residential real estate. Defendant had paid rent in a timely manner and fully complied with its other obligations under the Lease until the instant litigation commenced.
According to defendant, it has invested more than $6 million in the Golf Property and has paid over $1.6 million in rent to plaintiff. According to Frank Crouse, a manager of both WPL and plaintiff, defendant recovered its investment in the Golf Property within the first six years.
In March 2003, defendant and WPL (later, plaintiff, as WPL’s successor in interest), began merger negotiations. In the potential merger, defendant was to transfer all of its interest in the Golf Property to plaintiff in exchange for an 85 percent membership interest in plaintiff. These merger negotiations continued until the present litigation began.
On October 27, 2006, Crouse (as manager of WPL) sent a letter to Pat Hayes, defendant’s president. In this letter, he discussed the status of the ongoing merger negotiations and also discussed the status of the zoning approval process for WPL’s “Master Plan” for development. He listed six necessary points of agreement for a successful merger and approval of the Master Plan. The fifth point of agreement required defendant’s approval of a “road easement” between holes #21 and #22 (the Road Easement). WPL needed defendant’s approval of the Road Easement to obtain Hartland Township’s final approval of WPN’s Master Plan.
On April 3, 2007, WPL conveyed title to the Golf Property to plaintiff, thereby making plaintiff the successor in interest to WPL’s interest in the Golf Property. But WPL continued to own the land surrounding the Golf Property. On April 26, 2007, plaintiff presented to defendant a document titled “Consent to Grant of Easements.” This “Consent” document was styled as a formal contract, and it included detailed maps and descriptions of the Road Easement.
On June 1, 2007, Crouse met with defendant’s representatives to discuss the proposed merger and proposed Master Plan. According to the summary of the meeting, defendant reviewed plaintiffs proposed Road Easement and suggested certain changes. According to Crouse, none of defendant’s suggested changes addressed the Road Easement’s location.
On June 19, 2007, Crouse sent an e-mail to James Hile (a representative of defendant). The e-mail stated that Doug Austin would make “the appropriate changes previously agreed to” for the Road Easement. Crouse reminded Hile that defendant’s consent to the Road Easement was necessary for approval of the Master Plan.
According to Crouse, a revised version of the Road Easement was delivered to defendant on November 5, 2007, for defendant’s consent. According to Crouse, the revised version incorporated some of defendant’s recommended changes to the Road Easement, although the location of the easement remained the same.
The discussions between plaintiff and defendant continued and finally culminated in a letter dated October 7, 2008, from Crouse to Hayes that read as follows:
I am writing on behalf of both Waldenwoods Properties, LLC [WPL] and Majestic Golf, LLC to request that you execute the Consent portion of the enclosed Grant of Easement and return it to me for recording. As you will recall, Section 22 of the golf course lease obligates Lake Walden to permit road crossing easements when required by Waldenwoods for development of its adjoining land. Sometime ago Waldenwoods requested a crossing easement from Majestic Golf, which owns the golf course land. Majestic Golf approved the request, and on that basis a proposed easement between Majestic and Waldenwoods was sent to Lake Walden on April 26, 2007 for review and consent.
Following receipt and review of the document, you requested some changes. Those were made, and the document was resubmitted to golf course management with a request to execute the Consent. This occurred, I believe, late in 2007. Despite the request, the written Consent has not been received. Concurrence by Lake Walden is urgently required.
I am requesting that Lake Walden fulfill its obligation under the lease. Please sign and return the enclosed Consent within thirty (30) days.
The next day, on October 8, 2008, Crouse sent an e-mail to both Hile and Hayes, which stated in relevant part:
While we still very much hope that a cooperative merger will take place, we have found it necessary to prepare for the circumstance that it may not, because the differences are found to be irreconcilable.. ..
If an agreement cannot be reached, then we may be presented with a notice by Lake Walden of its intent to exercise the purchase option included in our lease. Accordingly, we are providing the following attachments.
Attachment 2 - A letter requesting Concurrence by Lake Walden in the crossing easement, that has been in process since early 2007. The crossing easement has not changed - hence the legal descriptions finalized by Desine Inc.[]are dated 3/9/2007. We received approval subject to modifications to meet certain LWCC objections, and have previously asked for your concurrence, which has not be[en] provided as is required by Section 22 of the Lease. Failure to obtain Lake Walden concurrence was a major reason why we were not able to finalize a Master Plan for our property. Now we again request that Lake Walden promptly fulfill its obligation under the lease.
We do not intend any of these items to be interpreted that uie do not wish to successfully conclude a merger - as you recall, it is WPL that has attempted to have this matter continue to receive consideration. We are still hopeful that this process will be successful.
According to Crouse, on November 10, 2008, defendant presented plaintiff with defendant’s revised merger documents. These documents continued to claim that consent to the Road Easement was contingent upon finalization of the merger. Crouse stated that these documents were unreasonably one-sided in favor of defendant.
On November 24, 2008, legal counsel for plaintiff sent a letter to defendant that stated in relevant part:
The refusal of Lake Walden Country Club, Inc. to execute and deliver the Consent to the Grant of Easements sent to you on October 6, 2008 [sic — October 7, 2008] constitutes a default under the provisions of Paragraph 26 D of the Lease. On account of this default, Majestic Golf, LLC is hereby exercising its right under Paragraph 26 to terminate the Lease, effective immediately. Because of this termination, all rights granted to Lake Walden Country Club, Inc. to purchase the property pursuant to Paragraph 17 K of the Lease are also terminated, effective immediately.
On December 11, 2008, counsel for defendant sent a responding letter to plaintiff. Defendant’s counsel stated that it was always the parties’ intent to execute the Road Easement at the merger closing. He further stated that defendant was interpreting the November 24, 2008, letter as the formal 30-day notice required under the Lease. He included defendant’s revised version of the Grant of Easement and concluded by stating that defendant would agree to the new terms of the Grant of Easement to comply with the Lease. The revised documents were unsigned. In fact, defendant never signed any document to consent to plaintiffs Road Easement.
On December 22, 2008, counsel for defendant sent another letter to plaintiff, informing plaintiff that defendant was exercising its option to purchase the Golf Property under ¶ 17 of the Lease. Defendant stressed that under the terms of the Lease each party must obtain an appraisal. The parties both procured appraisals. Plaintiffs appraisal value of the Golf Property was $800,000, and defendant’s effective market value of the Golf Property was zero dollars.
Plaintiff filed its first amended complaint on May 21, 2009. Count I sought specific performance of ¶ 29 of the Lease, which required defendant to vacate the Golf Property upon termination of the Lease. Count II sought a declaratory order stating that defendant’s attempt to exercise the option to purchase under ¶ 17 of the Lease was invalid because the Lease had terminated before defendant’s attempt to exercise the option. Count III sought a stay of the 90-day appraisal period stated in ¶ 17 of the Lease, pending the trial court’s resolution of the other issues of the case. Count IV sought a declaratory judgment and order for payment for defendant’s reasonable rental value of the Golf Property during the case. Count V sought a declaratory judgment that defendant’s option to purchase was void because defendant’s appraisal of zero dollars was submitted in bad faith.
Defendant filed its counterclaim on June 26, 2009. Count I sought specific performance of the appraisal and option to purchase provisions of ¶ 17 of the Lease. Count II sought a declaratory order stating that (1) defendant did not breach the Lease, and (2) defendant properly exercised the option to purchase on December 22, 2008.
Defendant moved for summary disposition under both MCR 2.116(C)(8) and MCR 2.116(0(10) on August 27, 2009. Plaintiff, without citing a court rule, countered by moving for summary disposition on September 24, 2009.
The trial court, while applying only MCR 2.116(0(10), issued its opinion and order on December 23, 2009. It identified three issues:
The first issue is whether or not [defendant] defaulted on the lease after receiving notice of non-compliance with an obligation and an opportunity to cure that noncompliance via the Crouse letter on October 7, 2008. The second is whether, if [defendant] defaulted, such default warranted termination of the lease and, by extension, termination of their option to purchase the subject property. The final issue is whether, if [defendant] did properly invoke its option, either or both of the appraisals should be stricken by the Court as failing to comply with the appraisal procedures defined by ¶ 17(D) of the lease.
The trial court first held that defendant defaulted under the terms of the Lease. It explained that ¶ 22 of the Lease obligated defendant to agree to the requested easements. It further explained that the October 7, 2008, letter provided the requisite notice under ¶ 26 of the Lease, stating:
It is inconsequential that the October 7 letter did not call itself notice or reference an existing default. As the plaintiff argues, a default did not exist until after 30 days of non-performance following the transmission of this letter. Further, the terms of the lease do not require that the notice label itself as such but require only that the landlord inform the tenant that it has not performed an obligation under the lease, which this letter did. The October 8 e-mail from Crouse to Pat Hayes and James Hile does not contextualize away the sufficiency of this notice either but rather bolsters it. Although Crouse does express a desire to continue the negotiations, he also recites in the e-mail the defendant had not fulfilled its obligation under ¶ 22 of the lease and reiterates his request that the defendant do so. Finally, the allegation that the parties had agreed to another period for performance of this consent to easement is similarly immaterial. The obligation to permit easements is stated in mandatory language, and the time of performance is only contingent upon a mutually agreeable location being chosen. The lease itself under ¶ 43 limits modification of its terms by requiring a written instrument executed by both parties. Therefore, what the parties agreed orally as to when performance would occur was irrelevant since the plaintiff had a right to demand performance under the lease.
The trial court held that, because defendant did not provide its consent to the requested easements within 30 days of receiving the October 8 letter, defendant breached the Lease.
The trial court then held that termination of the Lease was not proper under principles of equity. The trial court concluded that termination was not warranted because defendant’s breach was not material. It reasoned that defendant had invested over $6 million in the Golf Property and had paid its rent in a timely manner. The trial court also reasoned that any wrongful withholding of consent to the easement would be compensable in money damages. Thus, the trial court concluded that forfeiture of the Lease would be “unduly harsh and oppressive.”
The trial court declined to address the third issue. It noted that defendant did not properly exercise the option under ¶ 17 because it breached the Lease before its attempt to exercise the option. The trial court concluded its opinion as follows:
1. As to Count I of the plaintiffs complaint seeking an order that the defendant surrender the lease premises, the defendant’s motion for summary disposition is GRANTED. Because there is no genuine issue of material fact and the defendant’s breach was not material, the plaintiff cannot succeed on that claim.
2. With respect to Count II of the plaintiffs complaint, the plaintiffs motion for summary disposition is GRANTED in part since the defendant’s attempt to exercise their option to purchase was ineffective as a result of the defendant’s default. However, because the defendant’s breach was not material, the option has not indefinitely lapsed.
3. Consistent with this ruling, summary disposition is GRANTED in favor of defendant as to Count V of plaintiffs complaint and in favor of plaintiff as to Count I of the defendant’s counter-complaint.
4. Finally, with respect to Counts III and IV of the plaintiffs complaint, the defendant’s motion is DENIED. Count III was previously disposed of by the Court in issuing a preliminary injunction, and Count IV is not germane to the instant motion.
On January 22, 2010, plaintiff moved for reconsideration. Plaintiff urged the trial court to reconsider its holding that equitable considerations prohibited plaintiff from terminating the Lease. Plaintiff also urged the trial court, as a procedural matter, to dismiss count IV of plaintiffs first amended complaint without prejudice. On March 31, 2010, the trial court declined to reconsider the substance of its previous order. However, the trial court agreed to dismiss count IV without prejudice.
On August 23, 2010, the parties stipulated to dismissal of count II of defendant’s counter-complaint, which resolved the final issue and closed the case.
II. ANALYSIS
We review de novo a trial court’s decision on a motion for summary disposition brought under MCR 2.116(C)(10). Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). When deciding a motion for summary disposition under this rule, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence then filed in the action or submitted by the parties in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Wilson v Alpena Co Rd Comm, 474 Mich 161, 166; 713 NW2d 717 (2006). The motion is properly granted if the evidence fails to establish a genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Michalski v Bar-Levav, 463 Mich 723, 730; 625 NW2d 754 (2001).
Issues involving either contractual interpretation or the legal effect of a contractual clause are reviewed de novo. McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008). “When reviewing a grant of equitable relief, an appellate court will set aside a trial court’s factual findings only if they are clearly erroneous, but whether equitable relief is proper under those facts is a question of law that an appellate court reviews de novo.” Id.
A. PLAINTIFF'S APPEAL
Plaintiff first argues that the trial court improperly utilized the “material breach doctrine” in deciding whether plaintiff could invoke the forfeiture clause in the Lease. We agree.
“A contract must be interpreted according to its plain and ordinary meaning.” Alpha Capital Mgt v Rentenbach, 287 Mich App 589, 611; 792 NW2d 344 (2010). When “contractual language is unambiguous and no reasonable person could differ concerning application of the term or phrase to undisputed material facts, summary disposition should be awarded to the proper party.” Id. at 612.
The forfeiture clause is located in ¶ 26 of the Lease and provides as follows:
26. DEFAULT. Each of the following events shall be a default hereunder by Tenant and a breach of this Lease.
D. If Tenant shall fail to perform any of the agreements, terms, covenants, or conditions hereof on Tenant’s part to be performed (other than payment of rent) and such non-performance shall continue for a period within which performance is required to be made by specific provision of this Lease, or if no such period is so provided for, a period of thirty (30) days after notice thereof by Landlord to Tenant, or if such performance cannot be reasonably had within such thirty (30) day period, Tenant shall not in good faith have commenced such performance within such thirty (30) day period and shall not diligently proceed therewith to completion;
If any event specified above shall occur and be continuing, Landlord shall have the right to cancel and terminate this Lease, as well as all of the right, title and interest of Tenant hereunder.
Thus, according to the plain and unambiguous terms of the Lease, plaintiff could “cancel and terminate” the Lease if defendant failed to comply with any obligation (with the exception of the failure to pay rent) and that failure to perform continued for 30 days after defendant was formally notified, pursuant to ¶ 31 of the Lease, of the failure to perform.
As we discuss later in this opinion when we discuss defendant’s cross-appeal, we conclude that there is no question of fact that the October 7, 2008, letter complied with the notice requirements of ¶ 31 of the Lease. Therefore, to avoid defaulting under the terms of the Lease, defendant had 30 days from October 8, 2008, to cure its non-performance. The record is clear that defendant did not respond to plaintiffs letter by November 7, 2008. Therefore, under the plain language of ¶ 26, the default occurred on or about November 7, 2008. The trial court correctly reached this conclusion.
Defendant, however, asserts that plaintiff breached the contract first when it recorded a document in the Livingston County Register of Deeds in February 2008. But defendant does not explain what covenant of the Lease plaintiff allegedly violated and also does not provide any authority in support of why this alleged “breach” prevented plaintiff from adhering to other aspects of the Lease. “An appellant may not merely announce his or her position and leave it to this Court to discover and rationalize the basis for his or her claims.” In re Temple Marital Trust, 278 Mich App 122, 139; 748 NW2d 265 (2008). Consequently, we decline to consider defendant’s argument.
Even though the trial court correctly found that defendant breached the Lease, the trial court refused to allow plaintiff to terminate the Lease because it concluded under the “material breach doctrine” that forfeiture of a lease pursuant to a termination clause is not warranted when the breaching party committed an immaterial breach. We hold that the trial court erred by not applying the plain language of the contract.
This Court has not, in a published opinion, addressed the applicability of the material breach doctrine when the contract at issue contains an express forfeiture clause. Before addressing that question directly, we first note that there is a difference between “rescission,” “termination,” and “forfeiture” of a contract. Rescission is an equitable remedy that is used to avoid a contract. See Alibri v Detroit/Wayne Co Stadium Auth, 254 Mich App 545, 555; 658 NW2d 167 (2002), rev’d on other grounds 470 Mich 895 (2004); Black’s Law Dictionary (9th ed).
Generally, to rescind a contract means to annul, abrogate, unmake, cancel, or avoid it. More precisely, rescission amounts to the unmaking of a contract, or an undoing of it from the beginning, and not merely a termination.
The word “termination” generally refers to an ending, usually before the end of the anticipated term of the contract. Rescission of a contract constitutes termination of that contract with restitution. On the other hand, a forfeiture, properly exercised, terminates a contract without restitution. [17B CJS, Contracts, § 585, pp 18-20 (footnotes omitted).]
In addition:
A forfeiture is that which is lost, or the right to which is alienated, by a breach of contract. Unless there is a provision in a contract clearly and expressly allowing forfeiture, breach of a covenant does not justify cancellation of the entire contract, and courts will generally uphold a forfeiture only where a contract expressly provides for it.
The declaration of a forfeiture for the breach of a condition of a contract, in accordance with a stipulation therein, is to be distinguished from a rescission of the contact in that it is an assertion of a right growing out of the contract; if it puts an end to the contract and extin guishes it in accordance with its terms similarly to the manner in which it is extinguished by performance. Forfeiture terminates an existing contract without restitution, while a rescission of a contract generally terminates it with restitution and restores the parties to their original status. [17B CJS, Contracts, § 612, p 48 (emphasis added, footnotes omitted).]
In sum, “rescission” terminates a contract and places the parties in their original position, even if restitution is necessary, and “forfeiture” terminates a contract without restitution. Because plaintiff in this case seeks to enforce the termination clause in the contract, we conclude that the equitable remedy of rescission is not applicable. We further conclude that, by reading the default provision of the Lease to include the term “material breach,” the trial court effectively rewrote or reformed the contract. See Titan Ins Co v Hyten, 291 Mich App 445, 451-452; 805 NW2d 503 (2011) (noting that reformation allows a court to consider a contract to have different terms than provided in the document when those terms fail to express the intentions of the party), rev’d on other grounds 491 Mich 547 (2012).
Our view is supported by our Supreme Court’s consistent pronouncements that an unambiguous contract must be enforced as written unless it violates the law, is contrary to public policy, or is unenforceable under traditional contract defenses. Rory v Continental Ins Co, 473 Mich 457, 470; 703 NW2d 23 (2005); Wilkie v Auto-Owners Ins Co, 469 Mich 41, 51-52, 62-63; 664 NW2d 776 (2003); See also Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). In Rory, the Supreme Court stated:
This approach, where judges ... rewrite the contract... is contrary to the bedrock principle of American contract law that parties are free to contract as they see fit, and the courts Eire to enforce the agreement as written absent some highly unusual circumstance such as a contract in violation of law or public policy. This Court has recently discussed, and reinforced, its fidelity to this understanding of contract law .... The notion, that free men and women may reach agreements regarding their affairs without government interference and that courts will enforce those agreements, is ancient and irrefutable. It draws strength from common-law roots and can be seen in our fundamental charter, the United States Constitution, where government is forbidden from impairing the contracts of citizens, art I, § 10, cl. 1. Our own state constitutions over the years of statehood have similarly echoed this limitation on government power. It is, in short, an unmistakable and ineradicable part of the legal fabric of our society. New have expressed the force of this venerable axiom better than the late Professor Arthur Corbin, of Yale Law School, who wrote on this topic in his definitive study of contract law, Corbin on Contracts, as follows:
“One does not have ‘liberty of contract’ unless organized society both forbears and enforces, forbears to penalize him for making his bargain and enforces it for him after it is made.” [Rory, 473 Mich at 469-470, quoting Wilkie, 469 Mich at 51-52, quoting 15 Corbin, Contracts (Interim ed), ch 79, § 1376, p 17 (footnotes omitted).]
Although Rory did not expressly decide whether a contract forfeiture clause was enforceable, it made clear that a court has no power to ignore a contract’s plain and unambiguous term because the court holds the view that the term ostensibly was “unreasonable.” Rory, 473 Mich at 468-469. Rory is applicable here on this very point; this Court cannot refuse to enforce the plain and unambiguous terms of the lease herein on the basis that the forfeiture clause is “unfair.” Hence, we reiterate the Supreme Court’s holding that courts are not free to rewrite or ignore the plain and unambiguous language of contracts except in exceptional circumstances. Id. at 470.
Defendant has not established that the requisite exceptional circumstances exist in this case sufficient to justify ignoring the plain language of its contract with plaintiff. First, defendant makes no claim that the forfeiture provision violates the law. Likewise, we find that the forfeiture clause is not contrary to public policy.
[T]he determination of Michigan’s public policy “is not merely the equivalent of the personal preferences of a majority of [the Supreme] Court; rather, such a policy must ultimately be clearly rooted in the law.” In ascertaining the parameters of our public policy, we must look to “policies that, in fact, have been adopted by the public through our various legal processes, and are reflected in our state and federal constitutions, our statutes, and the common law.” [Id. at 470-471, quoting Terrien v Zwit, 467 Mich 56, 66-67; 648 NW2d 602 (2002).]
While the Legislature has limited the effectiveness of express forfeiture clauses in land contracts, MCL 600.5726 (requiring the occurrence of a material breach as a precondition of forfeiture of a land contract, regardless of whether the contract has an explicit termination or forfeiture clause), the Legislature notably has not limited the operation of forfeiture clauses in other contexts. Additionally, forfeiture clauses have existed in contracts in this state for more than 100 years. See, e.g., Hamilton v Wickson, 131 Mich 7, 73-76; 90 NW 1032 (1902); Satterlee v Cronkhite, 114 Mich 634, 635-636; 72 NW 616 (1897). Thus, we cannot conclude that forfeiture clauses in a contract that is not a land contract violate public policy.
As the Rory Court stated, “[ojnly recognized traditional contract defenses may be used to avoid the enforcement of [legal] contract provision[s].” Rory, 473 Mich at 470. Such defenses include duress, waiver, estoppel, fraud, and unconscionability. Id. at 470 n 23. The only recognized defense that could possibly be relied on in this case, based on defendant’s pleadings, is the doctrine of unconscionability. However, “[i]n order for a contract or contract provision to be considered unconscionable, both procedural and substantive unconscionability must be present.” Clark v DaimlerChrysler Corp, 268 Mich App 138, 143; 706 NW2d 471 (2005) (emphasis added).
Procedural unconscionability exists where the weaker party had no realistic alternative to acceptance of the term. If, under a fair appraisal of the circumstances, the weaker party was free to accept or reject the term, there was no procedural unconscionability. Substantive unconscionability exists where the challenged term is not substantively reasonable. However, a contract or contract provision is not invariably substantively unconscionable simply because it is foolish for one party and very advantageous to the other. Instead, a term is substantively unreasonable where the inequity of the term is so extreme as to shock the conscience. [Id. at 144 (citations omitted).]
Here, there was no evidence that defendant was in a weaker position than plaintiff and was forced to accept the forfeiture term. Thus, defendant cannot establish any procedural unconscionability. We also conclude that the forfeiture clause was not substantively unconscionable. While the term undoubtedly favors plaintiff, the advantage given to plaintiff in the contract does not shock the conscience. In addition, forfeiture did not occur immediately upon defendant’s breach; the Lease allowed defendant 30 days to cure any breach before the Lease would be terminated. Under these circumstances, the forfeiture clause was not “substantively unreasonable.” Therefore, the forfeiture provision was not avoidable under the unconscionability doctrine.
In sum, “a court may not revise or void the unambiguous language of [an] agreement to achieve a result that it views as fairer or more reasonable.” Rory, 473 Mich at 489. As a result, the trial court erred when it failed to enforce the forfeiture clause of the Lease based on defendant’s breach not being a “material breach.” As a matter of law, plaintiff successfully invoked the default provision of the Lease and terminated the Lease on November 24, 2008. Under ¶ 17 of the Lease, the Lease’s termination also extinguished defendant’s option to purchase. Hence, because the Lease was terminated on that date, defendant’s attempt to exercise the Lease’s option-to-purchase provision on December 22, 2008, was void.
B. DEFENDANT’S CROSS-APPEAL
Defendant argues that it did not breach the contract when it failed to consent to the easement agreement. Specifically, defendant argues that (1) the easement agreement was to be finalized and executed at the conclusion of the merger negotiations, (2) the parties never reached an agreement with respect to the terms of the easement, and (3) plaintiffs October 7, 2008, letter did not comply with the notice provision of Paragraph 26. We conclude that defendant was not excused from complying with its obligation under the Lease.
In pertinent part, ¶ 22 of the Lease stated:
Tenant shall permit drainage and utility easements and road crossings to be developed by Landlord on the Premises as required to permit development to occur on Landlord’s Other Real Estate. [Emphasis added.]
Thus, defendant was required to consent to plaintiffs Road Easement. The Lease, however, did provide that the location of any easements must be “in areas mutually agreeable.” As such, the only valid reason to withhold consent to the Road Easement would have been the failure to agree on a location. However, there was no evidence to show that defendant’s refusal to consent was based on an objection to the location. We note that during the 30-day window that followed Crouse’s October 7, 2008, letter, defendant failed to make any objection or provide any rationale for its refusal to consent. Defendant’s next communication was issued on November 10, 2008, which was after the 30-day deadline expired. Therefore, defendant’s failure to consent to the Road Easement was a breach of the plain and unambiguous terms of the Lease.
Defendant also argues that consent to the Road Easement was not required because it was contingent upon finalization of the merger agreement. While the parties undoubtedly discussed that consent would occur contemporaneous to a merger, there was no evidence that the parties intended to amend, or did amend, the provision of the Lease that defendant give consent “as required.”
Defendant further contends that the easement agreement was not ripe for its consent because the agreement failed to capture other conditions, such as (1) noting that all costs were plaintiffs responsibility, (2) ensuring that the integrity of the golf course would not be disturbed, and (3) ensuring that the golf course would be left in an equal or better condition when the work was complete. Nothing in Paragraph 22 makes defendant’s requirements to grant an easement contingent on these asserted conditions. Thus, defendant’s insistence that the Lease required these provisions in any easement agreement is without merit.
Last, defendant claims that plaintiffs October 7, 2008, letter did not satisfy the notice requirements spelled out in ¶ 31 of the Lease. We disagree. Paragraph 31 provides in pertinent part,
Whenever it is provided herein that notice, demand, request, or other communication shall or may be given to or served upon either of the parties by the other, and whenever either of the parties shall desire to give or serve upon the other any notice, demand, request, or other communication with respect hereto or with respect to the Premises, each such notice, demand, request, or other communication shall be in writing and, any law or statute to the contrary notwithstanding, shall be effective for any purpose if given or served as follows:
A. If by Landlord, by mailing the same to Tenant by registered mail, postage prepaid, return receipt requested ....
Defendant claims that the October 7, 2008, letter was deficient in several ways: (1) it was not sent via registered mail, (2) the letter did not provide any notice, and (3) the letter did not indicate what consequences would happen if the 30-day deadline was not met.
Nothing in the record supports defendant’s claim that the letter was not sent via registered mail. Defendant cites to the letter itself and cites to Crouse’s affidavit as evidence of the letter not being sent via registered mail. However, the letter does not identify either way how it was mailed. And Crouse states in his affidavit that he mailed the letter “consistent with notice provisions contained in the Lease.”
Defendant’s remaining claims of deficiencies are also without merit. The Lease does not require the written notice to contain any specific words, such as “notice” or “default.” In this case, the letter referred to defendant’s continuing obligation under ¶ 22 of the Lease to provide the consent, explained that defendant has been delinquent for nearly a year, and established a 30-day time period to cure the defect. This 30-day time period matches the 30-day time period of ¶ 26. Therefore, the trial court correctly concluded that the letter satisfied the notice requirements of the Lease.
Defendant’s final issue on cross-appeal relates to whether its invoking of the option to purchase was invalid. As already discussed, we conclude that plaintiff properly terminated the Lease prior to defendant invoking the option, thereby making defendant’s attempt to purchase void. Although the trial court concluded that defendant could not invoke the option to purchase for different reasons, we will not reverse a trial court’s ruling when it reaches the right result for the wrong reason. Coates v Bastian Bros, Inc, 276 Mich App 498, 508-509; 741 NW2d 539 (2007).
C. CONCLUSION
In conclusion, the trial court erred when it did not interpret the Lease according to its plain and unambiguous terms. On remand, the trial court is to enter an order granting summary disposition in favor of plaintiff on counts I, II, and V of its complaint.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff, the prevailing party, may tax costs pursuant to MCR 7.219.
TALBOT and SERVITTO, JJ., concurred with WILDER, EJ.
WPL is the only member of plaintiff.
Defendant explains that this value was derived using the appraisal instructions in the Lease.
In fact, the document that defendant provided to plaintiff in December 2008 used the same location for the easement that plaintiff initially proposed.
We note that if plaintiff were to have undermined the integrity or condition of the golf course through construction or maintenance of easements, defendant would have been entitled to a variety of possible contract remedies. | [
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PER CURIAM.
At issue is whether the trial court erred in scoring offense variable (OV) 11 and, if so, whether defendant is entitled to be resentenced. Defendant was convicted of two counts of third-degree criminal sexual conduct. The trial court scored OV 11 at 25 points on the basis that defendant penetrated the victim twice. The Court of Appeals affirmed. Because MCL 777.41(2)(a) only allows those penetrations “arising out of the sentencing offense” to be scored under OV 11, and because the two penetrations that formed the bases of the two sentencing offenses in this case occurred on different dates and there is no evidence that they arose out of each other, we conclude that the trial court erred in scoring OV 11. Because the trial court sentenced defendant to a minimum of 100 months under the misapprehension that the statutory sentencing guidelines call for a minimum range of 99 to 320 months when the guidelines actually call for a minimum range of 87 to 290 months, we remand this case to the trial court for resentencing.
I. FACTS AND PROCEDURAL HISTORY
Following a jury trial, defendant was convicted of two counts of third-degree criminal sexual conduct, MCL 750.520d, on the grounds that when he was 20 years old he engaged in sexual intercourse with a 15-year-old girl on two different dates in November 2001. At the sentencing hearing, defendant unsuccessfully challenged the scoring of points under offense variables 10,11, and 19. As scored, the statutory sentencing guidelines called for a minimum range of 99 to 320 months. The trial court sentenced defendant to two concurrent prison terms of 100 to 480 months as a fourth-offense habitual offender. Defendant filed an appeal as of right with the Court of Appeals, protesting the admission of evidence of three prior felony convictions at trial and the scoring of points under offense variables 10 and 11. The Court of Appeals affirmed. Unpublished opinion per curiam, issued October 28, 2004 (Docket No. 248480). Defendant applied for leave to appeal in this Court. After directing the parties to address whether OV 11 had been correctly scored by the trial court, we heard oral argument on whether to grant the application or take other peremptory action permitted by MCR 7.302(G)(1). 473 Mich 862 (2005).
II. STANDARD OP REVIEW
The issues in this case concern the proper interpretation and application of the statutory sentencing guidelines, MCL 777.11 et seq., both of which are legal questions that this Court reviews de novo. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). This case also concerns the admission of evidence, which is reviewed for an abuse of discretion. People v Small, 467 Mich 259, 261; 650 NW2d 328 (2002).
III. ANALYSIS
A. OV 11
The trial court scored OV 11 at 25 points. Defendant argues that OV 11 should have been scored at zero points. We agree with defendant. MCL 777.41 provides:
(1) Offense variable 11 is criminal sexual penetration. Score offense variable 11 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:
(a) Two or more criminal sexual penetrations occurred ............................................50 points
(b) One criminal sexual penetration occurred ...............................................25 points
(c) No criminal sexual penetration occurred ............................................0 points
(2) All of the following apply to scoring offense variable 11:
(a) Score all sexual penetrations of the victim by the offender arising out of the sentencing offense.
(b) Multiple sexual penetrations of the victim by the offender extending beyond the sentencing offense may be scored in offense variables 12 or 13.
(c) Do not score points for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct offense. [Emphasis added.]
In this case, defendant sexually penetrated the victim on two different occasions. Defendant argues that because the two penetrations occurred on separate dates they did not “aris[e] out of” each other, and, thus, the trial court erred in scoring OV 11 at 25 points.
“Arise” is defined as “to result; spring or issue.” Random House Webster’s College Dictionary (1997). The Court of Appeals has explained that the language “arising out of the sentencing offense” means that the “sexual penetration of the victim must result or spring from the sentencing offense.” People v Mutchie, 251 Mich App 273, 276; 650 NW2d 733 (2002), aff'd on other grounds 468 Mich 50 (2003). In Mutchie, supra at 277, the Court of Appeals held that “[bjecause all three sexual penetrations perpetrated by defendant against the victim occurred at the same place, under the same set of circumstances, and during the same course of conduct, regardless of which first-degree CSC conviction one deems the ‘sentencing offense’ for purposes of OV 11, the other two sexual penetrations unambiguously fall within the scope of ‘sexual penetrations of the victim by the offender arising out of the sentencing offense.’ ”
In interpreting an insurance contract containing the language “arising out of,” we held that such language requires a “ ‘causal connection’ ” that is “ ‘more than incidental. . . . ' " Pacific Employers Ins Co v Michigan Mut Ins Co, 452 Mich 218, 225; 549 NW2d 872 (1996), quoting Thornton v Allstate Ins Co, 425 Mich 643, 650; 391 NW2d 320 (1986). Similarly, in interpreting a workers’ compensation statute, MCL 418.301, containing the language “arising out of,” we held that this language requires a “ ‘ “causal connection Dean v Chrysler Corp, 434 Mich 655, 659-660; 455 NW2d 699 (1990), quoting Rucker v Michigan Smelting & Refining Co, 300 Mich 668, 671; 2 NW2d 808 (1942), quoting Appleford v Kimmel, 297 Mich 8, 12; 296 NW 861 (1941).
Obviously, the Legislature did not intend all penetrations to be scored nor did it intend for no penetrations to be scored. Instead, it intended for those penetrations “arising out of the sentencing offense” to be scored, and it is our role to ascertain which penetrations fairly can be said to have “aris[en] out of the sentencing offense.”
As already discussed, we have previously defined “arising out of” to suggest a causal connection between two events of a sort that is more than incidental. We continue to believe that this sets forth the most reasonable definition of “arising out of.” Something that “aris[es] out of,” or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen. For present purposes, this requires that there be such a relationship between the penetrations at issue and the sentencing offenses.
In this case, the sentencing offenses are for third-degree criminal sexual conduct. Therefore, in order to count the penetrations under OV 11, there must be the requisite relationship between the penetrations and the instances of third-degree criminal sexual conduct. The victim testified that she had sexual intercourse with defendant on two different dates in November 2001. There is no evidence that the penetrations resulted or sprang from each other or that there is more than an incidental connection between the two penetrations. That is, there is no evidence that the penetrations arose out of each other. More specifically, there is no evidence that the first sexual penetration arose out of the second penetration or that the second penetration arose out of the first penetration. Because the two sexual penetrations did not “aris[e] out of” each other, the trial court erred in scoring OV 11 at 25 points.
If OV 11 is scored at 25 points, the statutory sentencing guidelines call for a minimum sentence range of 99 to 320 months. However, if OV 11 is scored at zero points, as it should have been in this case, the guidelines call for a minimum sentence range of 87 to 290 months. Because defendant’s sentences are predicated upon an inaccurate calculation of the guidelines range, defendant is entitled to be resentenced. People v Francisco, 474 Mich 82; 711 NW2d 44 (2006).
B. MRE 609
Defendant had three prior felony convictions for breaking and entering in 1999, receiving and concealing stolen property in 2000, and larceny from the person in 2000. We agree with the Court of Appeals that the trial court did not abuse its discretion in admitting evidence of these convictions under MRE 609. The crimes contained elements of theft, were punishable by imprisonment in excess of one year, were committed within two years of the instant offenses, were probative of defendant’s credibility, and were not similar to the instant offenses.
c. ov 10
We also agree that the trial court did not err in scoring OV 10 at ten points. MCL 777.40(l)(b) requires OV 10 to be scored at ten points where “[t]he offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status.” As the Court of Appeals explained, “[w]here complainant was fifteen years old and defendant was twenty, the court could determine that defendant exploited the victim’s youth in committing the sexual assault.” Slip op at 2.
IV CONCLUSION
Because we conclude that the trial court erred in scoring OV 11 and that this error affected the statutory-sentencing guidelines range, we remand this case to the trial court for resentencing under the correct guidelines range.
TAYLOR, C.J., and MARKMAN, J., concurred.
CAVANAGH and KELLY, JJ., concurred in the result only.
In Mutchie, supra at 51-52, we quoted the Court of Appeals opinion in that matter and held that “[t]he analysis of OV 11 offered by the Court of Appeals was dictum” because even if the trial court had erred in scoring OV 11, resentencing would not be warranted “ ‘given the trial court’s remarks that it would have imposed the same sentences regardless of the scoring of OV 11.’ ”
In this case, defendant was convicted of two separate counts of third-degree criminal sexual conduct. Third-degree criminal sexual conduct is an offense based on sexual penetration. MCL 750.520d. The penetration that formed the basis of defendant’s first offense “aris[es] out of the [first] sentencing offense.” The penetration that formed the basis of defendant’s second offense “aris[es] out of the [second] sentencing offense.” However, the penetration that formed the basis of the first offense cannot be used for scoring the first offense, and the penetration that formed the basis of the second offense cannot be used for scoring the second offense. This is because MCL 777.41(2)(c) prevents the court from scoring points “for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct offense.” While the precise meaning of the language in MCL 777.41(2)(c) is not at issue in this case, it is clear that each criminal sexual penetration that forms the basis of its own sentencing offense cannot be scored for purposes of that particular sentencing offense.
Although criminal sexual penetrations extending beyond the sentencing offense cannot be scored under OV 11, they may be scored under OV 12 (contemporaneous felonious criminal acts that occurred within 24 hours of the sentencing offense and that have not and will not result in separate convictions, MCL 777.42) or OV 13 (continuing pattern of criminal behavior, MCL 777.43). In this case, OV 12 cannot be scored because there is no evidence that the sexual penetrations occurred within 24 hours of each other and both penetrations resulted in separate convictions. Moreover, defendant has already been assessed 25 points under OV 13— the highest number of points assessable unless first-degree criminal sexual conduct is the sentencing offense— on the basis of an unarmed robbery conviction in 2000, a larceny from the person conviction in 1999, and the sentencing offense. | [
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MARKMAN, J.
We granted leave to appeal to consider whether our state’s first-degree murder statute permits a felony-murder conviction “in the perpetration of” a first- or second-degree home invasion in which the homicide occurs several miles away from the dwelling and several minutes after defendant departed from the dwelling.
Following a jury trial, defendant was convicted of two counts of first-degree felony murder, MCL 750.316(l)(b), with home invasion in the first degree, MCL 750.110a, as the predicate felony. Defendant appealed the convictions, asserting that he was no longer “in the perpetration” of home invasion at the time of the automobile collision that killed the victims. The Court of Appeals concluded that the accident was not “part of the continuous transaction of or immediately connected to the home invasion[,]” and, therefore, vacated the convictions and remanded for a new trial on the charges of second-degree murder. People v Gillis, unpublished opinion per curiam of the Court of Appeals, issued August 17, 2004 (Docket No. 245012), slip op at 3. We conclude that “perpetration” encompasses acts by a defendant that occur outside the definitional elements of the predicate felony and includes acts that occur during the unbroken chain of events surrounding that felony. Because defendant at the time of the collision was attempting to escape detection after having been identified during the home invasion, a reasonable juror could conclude that he was still “in the perpetration of” the home invasion. We also conclude that the trial court did not err in failing to instruct on involuntary manslaughter, because no rational view of the evidence could support a finding that defendant acted in a grossly negligent manner or had an intent to injure without malice. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to that Court for consideration of defendant’s other issues.
I. FACTS AND PROCEDURAL HISTORY
Just before 2:00 p.m. on May 24, 2001, Steven Albright observed a vehicle pull into his driveway, and then heard a noise in his garage. Upon investigating, he saw defendant standing in the doorway between the garage and the sunroom. When Albright confronted defendant, defendant closed the door and abruptly left the premises. Albright went back into the house, retrieved a handgun from his bedroom, and sought to confront defendant. As he went out of the front door, he observed defendant driving away in a small white car that he believed to be a Dodge Shadow. Albright then called 911, describing both defendant and the vehicle. After driving his own vehicle around the block for approximately five minutes in an unsuccessful attempt to locate defendant’s vehicle, he returned home and called 911 a second time, adding that he had observed a large patch of gray primer on defendant’s vehicle.
At 1:51 p.m., Trooper Steven Kramer was driving west on 1-94, when he received a “be on the lookout” (BOL) call for a vehicle involved in a home invasion. Trooper Kramer testified that “a couple minutes before 2:00 o’clock” he observed defendant’s vehicle, which matched the BOL description, traveling east on 1-94. When Kramer first observed the vehicle, it was approximately ten miles from Albright’s home. Kramer also testified that it was “a little bit hazy out” when he observed the vehicle. Kramer turned around, pulled up next to defendant’s vehicle, and confirmed that both the vehicle and the driver matched the description provided in the BOL.
Kramer activated his vehicle’s emergency lights and attempted a traffic stop. Defendant pulled to the shoulder and slowed down to approximately 30 miles per hour, but failed to stop. After driving on the shoulder for about one mile, defendant suddenly accelerated and took an exit off the interstate. After driving on an overpass, defendant quickly reentered 1-94, and began driving east in the westbound lanes. Kramer testified that he gave chase, hoping that his emergency lights would alert oncoming traffic to the presence of defendant’s vehicle. Defendant stayed on the shoulder of what would be the far left lane for the oncoming traffic, traveling at around 60 to 70 miles per hour. Still driving the wrong way on 1-94, he then entered the 1-69 eastbound entrance ramp to westbound 1-94. Defendant began driving westward in the eastbound lanes of 1-69. After driving the wrong way on 1-69 for approximately one mile, defendant came upon a curve in the road which had guardrails on both sides and no shoulder. At this point, a vehicle occupied by Nicholas and Gayle Ackerman attempted to pass the vehicles slowing down in front of it by pulling into the left lane. Defendant’s vehicle and the Ackermans’ vehicle collided almost directly head on. Nicholas and Gayle Ackerman were killed instantly. Trooper Kramer reported the accident at 2:09 p.m., 18 minutes from the time of the BOL call and approximately ten minutes from the time Kramer initially spotted defendant’s vehicle. Defendant was prosecuted for two counts of first-degree felony murder, with the predicate felony of home invasion in the first degree. Defendant moved to quash the information on the felony-murder charges, arguing that the crime of home invasion was complete when defendant departed from Albright’s home and eluded Albright’s pursuit. The trial court denied the motion, holding that the home invasion and the accident were “continuous, uninterrupted by temporary safety action that was taken by this defendant.” The trial court also denied defendant’s motion for a directed verdict of acquittal, holding that the prosecutor had presented sufficient evidence to allow a reasonable juror to find defendant guilty beyond a reasonable doubt. Following a jury trial, defendant was convicted of two counts of felony murder and sentenced to life in prison without the possibility of parole.
Defendant appealed, contending that the Ackermans’ deaths did not occur during the “perpetration or attempt to perpetrate” the home invasion. In a split decision, the Court of Appeals majority applied People v Thew, 201 Mich App 78, 85-86; 506 NW2d 547 (1993), which held that, to convict a defendant of felony murder, the murder must be “ ‘committed as a part of a continuous transaction with, or [must be] otherwise “immediately connected” with[] the underlying felony.’ ” (Citation omitted.) The Court of Appeals majority concluded that “defendant had already escaped from the scene of the home invasion” and, therefore, that the Ackermans’ deaths were not “part of the continuous transaction of or immediately connected to the home invasion.” Gillis, supra, slip op at 3. Judge METER, who concurred in part and dissented in part, also applied Thew, but concluded that because defendant was “engaged in the flight only minutes after committing the home invasion,” a rational jury could reasonably conclude that “defendant committed the murders ‘ “while attempting to escape from or prevent detection of the felony . . . [and] as part of a continuous transaction with . . . the .. . felony.” ’ ” Id., slip op at 2 (METER, J., concurring in part and dissenting in part), quoting Thew, supra at 85-86, quoting People v Smith, 55 Mich App 184, 189; 222 NW2d 172 (1974). The majority also concluded that the trial court erred in denying defendant’s request for an instruction on involuntary manslaughter, that “[defendant should properly have been charged with fleeing and eluding and second-degree murder,” and that the matter must be remanded for a new trial on those charges. Id., slip op at 4. This Court granted the prosecutor’s application for leave to appeal. 471 Mich 958 (2005).
II. STANDARD OF REVIEW
The first issue in this case concerns whether the trial court erred in denying defendant’s motion to quash under the felony-murder statute, MCL 750.316(l)(b). The proper meaning of a statute constitutes a question of law that this Court reviews de novo. People v Law, 459 Mich 419, 423; 591 NW2d 20 (1999). While defendant argues that the trial court committed error by failing to quash the information, where a defendant has received a fair trial, appellate review is limited to the trial court’s denial of the defendant’s motion for directed verdict. People v Hall, 435 Mich 599, 601-603; 460 NW2d 520 (1990). In reviewing the denial of a motion for a directed verdict of acquittal, this Court reviews the evidence in a light most favorable to the prosecution in order to “determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt.” People v Riley (After Remand), 468 Mich 135, 139-140; 659 NW2d 611 (2003).
The other issue concerns whether the trial court erred in denying defendant’s request for an instruction on involuntary manslaughter. “[J]ury instructions that involve questions of law are also reviewed de novo.” People v Schaefer, 473 Mich 418, 427; 703 NW2d 774 (2005). “But a trial court’s determination whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.” People v Hawthorne, 265 Mich App 47, 50; 692 NW2d 879 (2005).
HI. ANALYSIS
A. DEFENDANT’S MOTION FOR A DIRECTED VERDICT OF ACQUITTAL
MCL 750.316 states in pertinent part:
(1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life:
*
(b) Murder committed in the perpetration of, or attempt to perpetrate... home invasion in the first or second degree . . . .[ ]
“[0]ur primary task in construing a statute, is to discern and give effect to the intent of the Legislature.” Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). “The words of a statute provide ‘the most reliable evidence of its intent....’” Id., quoting United States v Turkette, 452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). The Court must consider “both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Sun Valley, supra at 237, quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995). “The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended.” Sun Valley, supra at 237. “If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written.” Id. at 236.
To describe under what circumstances a second-degree murder can be elevated to first-degree murder, the Legislature used the words “in the perpetration of, or attempt to perpetrate” an enumerated felony. MCL 750.316(l)(b). Home invasion in the first degree is one of these enumerated felonies. Id. “Perpetrate” is defined as “to carry out; enact; commit.” Random House Webster’s College Dictionary (1997), p 972. To “carry out” is defined as “to effect or accomplish; complete.” Id. at 201. Defendant argues that a felony is “complete” when the definitional elements of the crime have been satisfied. Thus, in the context of a home invasion, defendant argues that he was no longer “in the perpetration of” first-degree home invasion once he left Albright’s home. Indeed, defense counsel admitted under questioning at oral argument that under his interpretation of the statute, if defendant had shot and killed a police officer who was trying to arrest him on the street outside Albright’s home, the murder still would not have been “in the perpetration of” the home invasion. However, defendant’s theory fails to account for the fact that commission of the felony itself does not render the defendant’s criminal plan complete. When a defendant plans to commit a felonious act, it is “a legitimate assumption that... [the defendant] also planned to escape from the scene of his crime.” Commonwealth v Kelly, 337 Pa 171, 175; 10 A2d 431 (1940). The Colorado Supreme Court has understandably opined that escape is “as important to the execution of the [felony]” as the elements of the crime itself. Bizup v People, 150 Colo 214, 218; 371 P2d 786 (1962) (holding that the felony-murder rule applies to a murder committed after the elements of armed robbery were met); see also People v Boss, 210 Cal 245, 251; 290 P 881 (1930) (holding that a murder committed during an escape from the scene of an armed robbery is felony murder because “[t]he escape of the robbers with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property”). In other words, a felon has not “carried out” or “completed” the felony for felony-murder purposes until the felon has escaped. A murder committed during the attempt to escape is committed “in the perpetration of” that felony, because the felonious transaction has not yet been completed. Accordingly, “perpetration” includes not only the definitional elements of the predicate felony, but also includes those acts that are required to complete the felony— such as those that occur after the commission of the predicate felony while the felon is attempting to escape. To hold otherwise would make it “ ‘quite impracticable to ever convict for a murder committed in the perpetration of any of the [enumerated felonies].’ ” Eddy v State, 496 NE2d 24, 28 (Ind, 1986), quoting Bissot v State, 53 Ind 408, 412 (1876).
In addition to its ordinary meaning, the phrase “in the perpetration of” has its roots in the common law. The crime of felony murder is derived from the English common law, which classified “ ‘all killing resulting from the commission of [a felony as] murder.’ ” Fisher v State, 367 Md 218, 248; 786 A2d 706 (1999), quoting Moreland, The Law of Homicide (1952), p 42. The felony-murder rule was adopted by the colonies and, following the American Revolution, “became a part of the common law or statutory provisions of [nearly] every American state.” Rodriguez v State, 953 SW2d 342, 346 (Tex App, 1997). In most states, including Michigan, felony-murder statutes are premised upon the 1794 felony-murder statute of Pennsylvania. Pennsylvania defined felony murder as
“[a]ll murder ... which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary....” [Id., citing Keedy, History of the Pennsylvania statute creating degrees of murder, 97 U Pa L R 759 (1949).]
Michigan’s original first-degree murder statute, enacted in 1838, used the same “in the perpetration of” language to describe a killing committed during the course of an enumerated felony. Our Legislature has continued to use this language, with few changes, over the past 178 years. However, neither the original statute nor the current murder statute defines this common-law term. “Where a statute employs the general terms of the common law to describe an offense, courts will construe the statutory crime by looking to common-law definitions.” People v Riddle, 467 Mich 116, 125; 649 NW2d 30 (2002). Thus, in the absence of a clear legislative intent to change the common law, we “apply the common law as it was understood when the crime of murder was codified ....” Id. at 126.
One of the first states to address the scope of “perpetration” for purposes of a felony-murder statute was Indiana in Bissot. In Bissot, the defendant shot and killed a town marshal who accosted him in the midst of a burglary. The defendant argued that, because the elements of burglary were complete before the shooting, the killing was not “in the perpetration of” that burglary. The Indiana Supreme Court opined:
In this case, take away the elements of burglary which surround it, and the prisoner might plausibly contend that he had committed nothing more than excusable homicide; for it appears that the deceased shot at him first, and thus put his life in immediate jeopardy. It could not be higher than manslaughter, at most; and in such cases it might be accidental, and then, if held not to be “in the perpetration” of the burglary, would be excusable. If the charge was murder committed “in the perpetration” of a robbery, as soon as the accused had forcibly and feloniously, or by violence or putting in fear, taken from the person of another any article of value, the robbery would be consummated; yet, if immediately afterwards, in the struggle to release himself and escape, he had killed his victim, the degree of the homicide, unconnected with the robbery, would be no higher than manslaughter....
Although we must construe criminal statutes strictly, adhere closely to the definition of crimes, and interpret technical words according to their fixed meaning, yet we cannot give to the section under consideration the construction contended for by the appellant. In our opinion, where the homicide is committed within the res gestae of the felony charged, it is committed in the perpetration of, or attempt to perpetrate, the felony, within the meaning of the statute; and, being convinced in this case that the burglary charged was committed, and that the homicide was committed within the res gestae of the burglary, we must hold that it was committed in the perpetration of the burglary, within the true intent and fair meaning of the statute. It seems to us that such a construction is safe to the State and the citizen, and the only one by which the intention of the legislature can he practically carried into effect. And we think, according to this view, that the evidence in this case fairly warrants the conclusion, beyond a reasonable doubt, that the homicide alleged was committed “in the perpetration” of the burglary, as charged in the indictment. [Bissot, supra at 412-414.]
See, also, State v Brown, 7 Or 186, 208-209 (1879) (noting that in the context of a killing committed during the defendants’ escape from the scene of a robbery, “[w]hen a person takes with force or violence the goods of another from his person or presence and against his will, he has committed robbery. . . . [B]ut it does not necessarily complete the crime. It constitutes robbery so far as to render the perpetrator liable to conviction for it; but the act of robbery itself may be prolonged beyond the time when that liability is fixed.”).
In commenting on felony-murder statutes, Professor Francis Wharton opined that, in order for a murder to have been committed in the perpetration of a felony,
it must have been done in pursuance of the unlawful act, and not collateral to it. The killing must have had an intimate relation and close connection with the felony, and not be separate, distinct, and independent from it; and when the act constituting the felony is in itself dangerous to life, the killing must be naturally consequent to the felony.... It is not enough that it occurred soon or presently after the felony was attempted or committed; there must have been such a legal relationship between the two that it could be said that the killing occurred by reason of, or as a part of, the felony, or that it occurred before the felony was at an end, and was concurrent with it, or at least part of it in an actual and material sense....
Where a homicide is committed within the res gestae of a felony, however, it is committed in the perpetration of, or attempt to perpetrate, a felony within the meaning of such statutes. That the attempt to commit the felony was not far advanced does not lessen the offense. And a burglar who breaks into a building, or who shoots a person who discovers him in an effort to escape, cannot avoid punishment for murder in the first degree, upon the theory that the burglary consisted in breaking in, and was consummated before the killing. A burglar may be said to be engaged in the commission of the crime of burglary while making away with the plunder, and while engaged in securing it. So, a robbery within the meaning of a rule that a homicide committed in the perpetration of a robbery is murder in the first degree is not necessarily concluded by the removal of the goods from the presence of the owner; and it is not necessary that the homicide should be committed at the precise time and place of the robbery. As in the case of burglary, the robber may be said to be engaged in the commission of the crime while he is endeavoring to escape and make away with the goods taken. And a homicide committed immediately after a robbery, apparently for the purpose of preventing detection, is within the rule. [Wharton, Law of Homicide (3d ed), § 126, pp 184-186.]
Thus, both the common law, as it was understood when the crime of murder was codified, and the clear language of MCL 750.316(l)(b) lead to the same conclusion— a murder that occurs during the uninterrupted chain of events surrounding the commission of the predicate felony is committed “in the perpetration of” that felony for felony-murder purposes. Accordingly, we conclude that the term “perpetration” encompasses acts beyond the definitional elements of the predicate felony, to include those acts committed within the res gestae of that felony. Bissot, supra; Brown, supra; Wharton, supra.
Michigan courts have also routinely held that “perpetration” extends beyond those elements required to prove the predicate felony and includes a murder committed after the predicate felony has been committed or attempted. The res gestae principle, which holds that a murder committed during the unbroken chain of events surrounding the predicate felony is committed “in the perpetration of” that felony, was adopted by this Court in People v Podolski, 332 Mich 508; 52 NW2d 201 (1952). In Podolski, supra at 514, the defendant and two accomplices committed armed robbery at a bank and were attempting to escape, when they were intercepted by the police in the “immediate vicinity of the bank.” During the ensuing gun battle, an officer was killed by a bullet from a fellow officer’s gun. This Court expressly adopted the reasoning of the Pennsylvania Supreme Court in Commonwealth v Moyer, 357 Pa 181, 190-191; 53 A2d 736 (1947), which stated:
It is equally consistent with reason and sound public policy to hold that when a felon’s attempt to commit robbery or burglary sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act.... Every robber or burglar knows that a likely later act in the chain of events he inaugurates will be the use of deadly force against him on the part of the selected victim. For whatever results follow from that natural and legal use of retaliating force, the felon must be held responsible.
The Court, quoting Wharton, then concluded that because the homicide occurred during the res gestae of the robbery, i.e., during the defendant’s attempt to escape, he was properly convicted of first-degree felony murder. Podolski, supra at 517-518.
The Court of Appeals, including both the majority and dissenting opinions in the instant case, has consistently applied the res gestae principle in felony-murder cases for at least four decades. The most common of these cases define “perpetration” in the context of a murder committed during an escape from the scene of an armed robbery. For example, in People v Oliver, 63 Mich App 509; 234 NW2d 679 (1975), the defendant’s vehicle was stopped by a Michigan State Police trooper half an hour after and “a few miles” away from the scene where the defendant had robbed a bank and kidnapped a teller. During the traffic stop, the defendant shot and killed the trooper. The defendant argued that he was no longer “in the perpetration” of the armed robbery, because he was not being pursued by the police at the time of the traffic stop and because of the time and distance between the robbery and the murder. Thus, according to the defendant, he had reached a place of “temporary safety” before the stop and, therefore, the robbery was completed before the murder. The Court of Appeals rejected this argument, holding:
[The trooper] was shot only a few miles away from the scene of the robbery within a half an hour after its commission. [The trooper] had his gun drawn and was approaching defendant’s car when Oliver discharged his revolver and then quickly sped away. It is incredible that the defendant even suggests that he had reached a point of temporary safety at this point. [Id. at 523.]
See, also, People v Bowen, 12 Mich App 438, 440-441; 162 NW2d 911 (1968) (relying on the dictionary definition of “perpetrate” as “ ‘[t]o carry through’ ” to conclude that a homicide committed while attempting to leave the bank was felony murder because “it cannot be said that the entire contemplated robbery, which would include escape, was as yet carried through”) (citation omitted); People v Goree, 30 Mich App 490, 495; 186 NW2d 872 (1971) (holding that a defendant who murdered a police officer who was attempting to arrest him for armed robbery is guilty of felony murder because “escape is part of the original felony [and] getting away with the contraband is as essential to the execution of an armed robbery as the theft itself. The escape ceases to be a continuous part of the original felony when the escaping felon reaches a point of at least temporary safety or [has been successfully taken into police custody].”) (citations omitted); People v Smith, 55 Mich App 184, 189; 222 NW2d 172 (1974) (stating that “if a murder is committed while attempting to escape from or prevent detection of the felony, it is felony murder, but only if it is committed as a part of a continuous transaction with, or is otherwise ‘immediately connected’ with, the underlying felony”); People v Goddard, 135 Mich App 128, 135; 352 NW2d 367 (1984), rev’d on other grounds 429 Mich 505 (1988) (noting that Michigan’s inclusion of murders committed while attempting to escape within the felony-murder rule “has been adopted in other jurisdictions”).
The Court of Appeals has also applied the res gestae principle to murders committed “in the perpetration” of felonies other than armed robbery. In People v Gimotty, 216 Mich App 254; 549 NW2d 39 (1996), the codefendant stole six dresses from a clothing store and he and the defendant sped away in the defendant’s vehicle. The vehicle was identified by another driver, who called the police and then followed the vehicle until the police arrived. Once the police joined the pursuit, they identified the defendant’s vehicle and gave chase. During the pursuit, the defendant failed to stop at a red light and struck another vehicle. A three-year-old passenger in the other vehicle died as a result of the collision. The defendant argued that the codefendant’s commission of retail fraud was complete when he left the store and, therefore, that he had reached a point of temporary safety when he got into the car. The Court of Appeals disagreed, concluding that
defendant sped out of the store’s parking area and onto Coolidge Road, where he was observed by another driver, who called the police on his car phone and then followed defendant until the police began their pursuit. Defendant was in the midst of a high-speed police chase when the victim was killed; he had not reached a place of temporary safety. [Id. at 258-259.]
See, also, Thew, supra at 88 (holding that a murder committed 20 minutes after the commission of first-degree criminal sexual conduct was part of a continuous transaction and that “inculpatory inferences can be drawn that he killed the victim to prevent detection of the act of sexual intercourse with [the victim], and that the killing was ‘immediately connected’ with the act of sexual intercourse”).
To summarize, “perpetration” as used in the felony-murder statute contemplates something beyond the definitional elements of the predicate felony. Michigan courts have recognized this broader common-law meaning through the adoption of the “res gestae” principle, which holds that a murder committed during the unbroken chain of events surrounding the predicate felony is committed “in the perpetration of” that felony.
Having concluded that “perpetration” encompasses acts beyond the definitional elements of the predicate felony, we must next assess what factors a jury should consider to determine whether a murder has, in fact, taken place during the unbroken chain of events arising out of the predicate felony. As observed by the Ohio Supreme Court, those acts committed in the perpetration of the predicate felony “change with every case, and may be numerous.” Conrad v State, 75 Ohio St 52, 70; 78 NE 957 (1906). In Goddard, supra at 135-136, the Court of Appeals explained that, in order to determine whether a particular murder occurred within the res gestae of the predicate felony,
[cjourts have usually required that the killing and the underlying felony be “closely connected in point of time, place and causal relation.” State v Adams, 339 Mo 926; 98 SW2d 632 (1936). The required relationship between the homicide and the underlying felony has been summarized as being “whether there is a sufficient causal connection between the felony and the homicide depends on whether the defendant’s felony dictated his conduct which led to the homicide.” LaFave & Scott, [Criminal Law, § 71, p 557.]
We hold that, to qualify as felony murder, the homicide must be incident to the felony and associated with it as one of its hazards. It is not necessary that the murder be contemporaneous with the felony. A lapse of time and distance are factors to be considered, but are not determinative.
Professor Wayne LaFave has also observed that a jury should look at four factors “in construing the scope of the expression ‘in the perpetration of (1) time; (2) place; (3) causation; and (4) continuity of action. 2 LaFave, Substantive Criminal Law (2d ed), § 14.5(f), p 463. While not exclusive, we agree that these factors should be considered in determining whether there exists sufficient evidence to support a felony-murder conviction.
The first factor to be considered by the jury pertains to the time between the commission of the predicate felony and the murder. In discussing the “time” factor, Professor LaFave states that,
even if it is clear beyond question that the crime was completed before the killing, the felony-murder rule might still apply. The most common case is that in which the killing occurs during the defendant’s flight. A great many of the modern statutes contain language — typically the phrase “or in immediate flight therefrom” — making this absolutely clear. But even statutes without such language have rather consistently been construed to extend to immediate flight situations. [Id. at 464.]
For example, in Oliver, the Court of Appeals concluded that the defendant was still in immediate flight from an armed robbery when he murdered a State Police trooper 30 minutes after the commission of an armed robbery. See, also, Thew (affirming a felony-murder conviction for a murder committed 20 minutes after the predicate felony). At the same time, the Tennessee Supreme Court held that a killing that took place almost a month after the commission of the predicate felony was too remote in time to support a conviction of felony murder. State v Pierce, 23 SW3d 289, 297 (Tenn, 2000). In Pierce, the defendant’s girlfriend stole her parents’ vehicle in Florida. The vehicle was reported stolen and a nationwide bulletin was issued for the vehicle. Twenty days later, while driving the vehicle, the defendant was identified by a Virginia police officer, who gave chase. When the defendant crossed into Tennessee, the Virginia police officer notified Tennessee law enforcement officers, who took over the pursuit. During the pursuit, the defendant struck a police car, killing a deputy sheriff. The Tennessee court rejected the prosecutor’s argument that the killing occurred within the res gestae of the automobile theft, concluding that “the killing in this case was not closely connected in time or place to the taking of the vehicle.” Id.
The second factor to be considered by a jury pertains to the physical distance between the scene of the predicate felony and the scene of the murder. For example, in State v Squire, 292 NC 494, 512; 234 SE2d 563 (1977), the defendants’ vehicle was stopped for a traffic violation by a North Carolina State Police trooper 13 minutes after and ten miles away from the scene where the defendants had robbed a bank. A codefendant, under the apparent mistaken belief that the trooper was investigating the robbery, shot and killed the trooper. The North Carolina Supreme Court upheld the defendants’ felony-murder convictions, holding that,
[o]bviously, the defendants had not reached what they regarded as a place of temporary safety from pursuing officers when the shooting of [the trooper] occurred. Thus, the robbery was still in progress and the shooting occurred in the perpetration of it and was first degree murder. [Id. at 512-513.]
At the same time, the Virginia Supreme Court held that a killing that took place 280 miles from the scene of the predicate felony was too remote to support a conviction of felony murder. Doane v Commonwealth, 218 Va 500, 502-503; 237 SE2d 797 (1977). In Doane, the defendant stole a vehicle from a car dealership. The next day, the defendant disobeyed a stop sign, striking another vehicle and killing the driver. The accident occurred 280 miles away from the scene of the predicate felony. The prosecutor argued that, because the defen dant was still in possession of the stolen vehicle at the time of the killing, there was a sufficient nexus between the killing and the predicate felony to support a felony-murder conviction. The Virginia court rejected this argument, holding that “there is neither a showing of causal relationship nor a showing of nexus between the larceny ... and the accidental killing of [the victim 280 miles from the scene of the larceny.]” Id. at 502.
However, “more than a mere coincidence of time and place is necessary” for a murder to qualify as a felony murder. LaFave, supra at 465. The third factor to be considered by the jury pertains to whether there is “some causal connection” between the murder and the predicate felony. Id. For example, in Gimotty, the defendant collided with the victim’s vehicle while attempting to avoid capture by the police after fleeing from the scene of a larceny. Likewise, in Podolski, the defendant engaged in a gun battle with the police in order to avoid capture after robbing a bank. However, in Allen v State, 690 So 2d 1332, 1334 (Fla Dist Ct App, 1997), the Florida District Court of Appeals held that a vehicle accident that occurred outside the context of a pursuit was not causally connected to the predicate felony. In Allen, the defendant stole a vehicle and, while driving the vehicle that evening, struck another car, killing the driver. At the time of the accident, the defendant was not being pursued by the police. The Florida court noted that, while the killing was close in time and place to the commission of the predicate felony, the prosecutor failed to show “that the death was causally related to the grand theft.” Id. Thus, the Florida court held that because the killing did not occur while the defendant was trying to escape, “the death did not occur as a result of the perpetration of the grand theft.” Id. at 1335.
The fourth factor that the jury should consider pertains to whether there was continuity of action between the predicate felony and the murder. Professor LaFave notes that “perpetration”
[has] consistently been construed to extend to immediate flight situations. In assessing what flight is sufficiently immediate, courts require that there have been “no break in the chain of events,” as to which a most important consideration is whether the fleeing felon has reached a “place of temporary safety.” [LaFave, supra at 464-465.]
In Oliver, supra at 523, the Court of Appeals rejected the defendant’s claim that he had reached a point of “temporary safety” by driving unpursued at normal highway speeds, holding that there was no interruption in the chain of events between the robbery and the murder of a State Police trooper who had stopped the defendant’s vehicle for a traffic infraction. The Oklahoma Court of Criminal Appeals reached a similar conclusion in addressing a situation bearing a strong resemblance to the instant case in Lampkin v State, 808 P2d 694 (Okla Crim App, 1991). In Lampkin, the defendant had left the scene of an armed robbery when a police officer observed him disobey a stop sign. The defendant was spotted in the vicinity of the scene of the robbery, just minutes after he had committed the crime. When the officer attempted a traffic stop, the defendant accelerated and a high-speed chase ensued. It was only after the chase began that the officer learned that the defendant was a suspect in a robbery. The chase ended when the defendant struck another vehicle, killing the passengers. The Oklahoma court rejected the defendant’s assertion that the robbery was “complete” at the time of the accident, noting that he “had not yet completed the robbery when the chase started; he was not yet in a safe haven, but rather was still in the process of leaving with the stolen money.” Id. at 696. Therefore, because the accident was part of one continuing transaction stemming from the robbery, the defendant was properly convicted of felony murder. Id.
In contrast, there can be no conviction for felony murder where an intervening act has broken the chain of events “between the killing and the crime committed or attempted. . . .” State v Diebold, 152 Wash 68, 72; 277 P 394 (1929). In Diebold, the defendant and his friend stole a vehicle and drove it to a café five miles away. The defendant testified that, during the meal, he decided to return the vehicle. On the way back to the scene of the larceny, the defendant lost control of the vehicle, striking and killing a pedestrian. The Washington Supreme Court determined that, because the killing took place after the defendant had stopped at the café, “[i]t cannot be held that, at the time appellant drove his car against the unfortunate victims of his carelessness, he was committing, or attempting to commit, or withdrawing from the scene of, a felony.” Id. at 73-74. See, also, Lester v State, 737 So 2d 1149, 1151-1152 (Fla Dist Ct App, 1999) (The defendant, driving in a vehicle he had stolen the night before, saw a police car and drove away unpursued, eventually disobeying three stop signs before hitting another vehicle and killing the passen gers. The Florida District Court of Appeals held that the theft of the vehicle had been “completed” the night before the accident and, therefore, that the defendant’s “reckless driving was too attenuated from the grand theft of the car the previous evening to support a felony-murder conviction.”); People v Ford, 65 Cal 2d 41; 416 P2d 132 (1966) (The defendant kidnapped his estranged wife and burglarized the home she was living in. After “[driving] about the countryside without aim or purpose,” id. at 48, for approximately four hours, he shot and killed a police officer who attempted to disarm him. The California Supreme Court held that the defendant had “won his way to places of temporary safety” during the four-hour drive, because “there was here no direct evidence that defendant was endeavoring to escape the robbery when he shot the [officer] . . . .” Id. at 56-57.).
In light of this analysis, we conclude that the trial court here did not err in denying defendant’s motion for a directed verdict of acquittal. The relevant question in the instant case is whether, viewing the evidence in a light most favorable to the prosecutor, a reasonable juror could conclude beyond a reasonable doubt that defendant was still in the midst of his escape from the home invasion when he struck and killed the Ackermans. After its review of the case law, and in particular Gimotty, the trial court correctly instructed the jury as follows:
Actions immediately connected with the felony of home invasion in the first degree, including attempts to escape or prevent detection[,] are a continuous part of the commission or perpetration of the felony of home invasion in the first degree.... [E]seape ceases to be a continuous part of the felony of home invasion in the first degree if and when the Defendant reaches a point of at least temporary safety.
The facts elicited at trial support the jury’s determination that the murder of the Ackermans was “a continuous part of the commission or perpetration of the felony of home invasion in the first degree.” Here, the homeowner, Albright, confronted defendant in the doorway between the garage and the sunroom. Defendant closed the door and abruptly fled. Albright observed both defendant and his vehicle flee from the scene of the home invasion. A reasonable juror could infer from defendant’s flight his intent to avoid apprehension by the police. Additionally, he was still in flight from the Albright home when Trooper Kramer spotted him approximately ten minutes after his abrupt flight. Under these facts, a reasonable juror could conclude that defendant had neither escaped nor reached a point of temporary safety when Trooper Kramer attempted the traffic stop. Further, a reasonable juror could conclude that defendant had sped away from Trooper Kramer specifically in order to prevent detection of the home invasion. Therefore, such a juror could also conclude that when defendant collided with the Ackermans’ vehicle during his flight from the police, that act was part of the res gestae of the home invasion. Accordingly, the trial court did not err in denying defendant’s motion for a directed verdict of acquittal.
Application of the LaFave factors lends further support to the jury’s verdict. First, addressing the time and place factors, a reasonable juror could conclude that the murders and the predicate felony in the instant case were sufficiently connected in time and place to support the convictions of felony murder. Approximately ten minutes after the home invasion, defendant’s vehicle was spotted by Trooper Kramer. Defendant struck and killed the Ackermans approximately 18 minutes after leaving the scene of the home invasion. The time frame in this case is completely unlike that in Pierce, in which there was a 20-day gap between the predicate felony and the killing. Indeed, the 18-minute gap in the instant case is significantly less time than the 30-minute interval between the bank robbery and the traffic stop in Oliver. Likewise, the distance between the home invasion and the murder of the Ackermans does not resemble the 280-mile gap between the theft of a vehicle and the killing in Doane. Rather, in the instant case, defendant was spotted by Trooper Kramer just over ten miles from Albright’s home. The Ackermans were killed within a few miles of the place where defendant was first observed by Albright. Accordingly, we conclude that the scene of the murders was sufficiently close in both time and distance from the scene of the home invasion to support convictions of felony murder.
Likewise, the “causal connection” and “continuity of action” factors also support the jury’s conclusion that defendant was “in the perpetration of” the home invasion when he murdered the Ackermans. The common thread running through the cases finding a lack of causal connection is that the defendant was not being pursued by the police when the defendant committed the murder. Doane, supra; Allen, supra; Franks v State, 636 P2d 361, 365 (Okla Crim App, 1981); Diebold, supra; Lester, supra. However, in the instant case, the record establishes that defendant was interrupted by Albright in the midst of the home invasion. Defendant’s reaction was to abruptly flee. Albright testified that he relayed both a description of defendant and a description of the unique characteristics of defendant’s vehicle to the police immediately after defendant fled the scene. Approximately ten minutes after the home invasion, defendant’s vehicle was spotted by Trooper Kramer. The Court of Appeals concluded that because defendant was driving “in a normal manner” at the time he was spotted by Trooper Kramer, he had reached a point of “temporary safety.” However, defendant had not stopped at any point between Albright’s home and the point where he was observed by Trooper Kramer. Cf. Diebold (the defendant had stopped at a café between the theft and the killing of a pedestrian). Further, defendant’s actions were not inconsistent with those of a person attempting to escape detection by the police, cf. Ford (the defendant’s aimless driving for four hours after commission of the predicate felony demonstrated that he was not attempting to escape at the time he shot a police officer), and, in fact, defendant’s act of speeding away from Trooper Kramer during the attempted traffic stop suggests both a causal connection and a continuity of action between the home invasion and the murders. The Court of Appeals failed to consider that defendant recognized that he had been identified as the perpetrator of a home invasion just minutes before. It is reasonable to infer from the testimony at trial that defendant failed to comply with Kramer’s direction to stop and instead sped away precisely because of this knowledge. Had defendant assumed, for example, that he was being stopped for a broken headlight or for an improper left turn, it seems highly unlikely that he would have failed to stop and instead engage in the extremely reckless driving that followed. The evidence is consistent with the prosecutor’s theory that when defendant led Kramer on a chase while driving the wrong way on 1-94 and 1-69, he did so in order to escape apprehension for the home invasion. As in Gimotty, defendant’s act of colliding with the Ackermans’ vehicle and killing the couple was part of an unbroken chain of events surrounding the home invasion. Because a reasonable juror could conclude beyond a reasonable doubt that the Ackermans’ murders occurred as part of the res gestae of the home invasion, the trial court properly denied defendant’s motion to direct a verdict of acquittal.
B. FAILURE TO INSTRUCT
Manslaughter is a necessarily included lesser offense of murder. People v Mendoza, 468 Mich 527, 544; 664 NW2d 685 (2003). “[W]hen a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence.” Id. at 541. In the instant case, defendant requested an instruction on involuntary manslaughter. In People v Holtschlag, 471 Mich 1, 21-22; 684 NW2d 730 (2004), we noted that
“the sole element distinguishing manslaughter and murder is malice,” Mendoza at 536, and that “[i]nvoluntary manslaughter is a catch-all concept including all manslaughter not characterized as voluntary: ‘Every unintentional killing of a human being is involuntary manslaughter if it is neither murder nor voluntary manslaughter nor within the scope of some recognized justification or excuse.’ ” [People v Datema, 448 Mich 585, 594-595; 533 NW2d 272 (1995).] (Citation omitted.) If a homicide is not voluntary manslaughter or excused or justified, it is, generally, either murder or involuntary manslaughter. If the homicide was committed with malice, it is murder. If it was committed with a lesser mens rea of gross negligence or an intent to injure, and not malice, it is not murder, but only involuntary manslaughter.
“Malice” is defined as an act done “with either an intent to kill, an intent to commit great bodily harm, or an intent to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result.” Mendoza, supra at 540. Thus, defendant was entitled to an involuntary manslaughter instruction only if a rational view of the evidence would have supported a finding that the Ackermans’ deaths were caused by an act of “gross negligence or an intent to injure, and not malice . . . .” Holtschlag, supra at 21-22.
The Court of Appeals majority concluded that it was “possible for a rational trier of fact to determine from the evidence that defendant only possessed the mindset of gross negligence.” Gillis, supra, slip op at 5. We disagree and hold that no rational juror, under these facts, could conclude that defendant’s actions were anything other than acts that “create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result.” Mendoza, supra at 540. Defendant, in his attempt to get away from Trooper Kramer, knowingly entered 1-94 going the wrong way. The ramp used by defendant was clearly marked with “Do Not Enter” and “Wrong Way” signs. Further, another officer assisting in the chase crossed over the median and began driving the proper way on 1-94 in order to get in front of defendant. Finally, Trooper Kramer testified that he and defendant went past several vehicles on both 1-94 and 1-69, all of which were being driven the correct way. This was not a circumstance where a driver, through an act of gross negligence, accidentally drove the wrong direction on the highway. Rather, this defendant intentionally drove the wrong way on the freeway and continued to do so for approximately ten minutes before colliding with the Ackermans’ vehicle. Trooper Kramer also testified that he was “quite certain [that oncoming traffic] would not have seen [defendant’s] small white car ....” In fact, this fear of a potential head-on collision was Kramer’s primary reason for continuing his pursuit. In other words, by driving the wrong way on the interstate on a hazy day, defendant created a “very high risk” of a head-on collision— a collision that would certainly cause “death or great bodily harm.” Further, it would be unreasonable to conclude that defendant did not know that a serious or fatal accident was the probable result of driving the wrong way on the interstate. No rational view of the evidence could support a finding of gross negligence or an intent to injure without malice.
Because the evidence does not support the conclusion that defendant drove the wrong way by accident or otherwise acted in a merely grossly negligent manner, we conclude that a rational view of the evidence does not support an involuntary manslaughter instruction. Therefore, the trial court did not err by failing to give an involuntary manslaughter instruction.
IV CONCLUSION
We conclude that “perpetration” encompasses acts by a defendant that occur outside the definitional elements of the predicate felony and includes acts that occur during the unbroken chain of events surrounding that felony. Thus, a felon “is engaged in the perpetration of the crime ‘while he is endeavoring to escape ... [a]nd a [murder] committed immediately after a [felony], apparently for the purpose of preventing detection,’ is felony murder.” Smith, supra at 189, quoting Podolski, supra at 518 (emphasis omitted). In determining whether the defendant is still “in the perpetration of” the predicate felony when the defendant commits a murder, factors to be evaluated by the jury include: (1) the length of time between commission of the predicate felony and the murder; (2) the distance between the scene of the predicate felony and the scene of the murder; (3) whether there is a causal connection between the murder and the predicate felony; and (4) whether there is continuity of action between the predicate felony and the murder. LaFave, supra at 463, 464-465. Applying these factors to the instant case, we conclude that the trial court did not err in denying defendant’s motion to direct a verdict of acquittal because, viewing the evidence in a light most favorable to the prosecutor, a reasonable juror could conclude beyond a reasonable doubt that the murders were within the res gestae of the predicate home invasion. We further conclude that the trial court did not err in refusing defendant’s request for an involuntary manslaughter instruction. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for consideration of defendant’s other issues.
Weaver, Corrigan, and Young, JJ., concurred with Markman, J.
Trooper Kramer testified that the exit ramp from westbound 1-94 was clearly marked with “Do Not Enter” and “Wrong Way” signs.
Kramer testified that defendant “appeared not [to he] generally interfering with traffic or not trying to interfere with traffic other than the fact that he was going the wrong way on the road.”
Defendant suffered a closed-head injury and had amnesia regarding the events of May 21, 2001.
The use of the term “perpetrate” within the context of the crime of felony murder dates back nearly to statehood. Michigan’s original murder statute, 1838 RS, part 4, title 1, ch 3, § 1, defined first-degree murder as follows:
All murder which shall be perpetrated by means of poison or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree, and shall be punished by death .... [Emphasis added.]
Defense counsel was asked, “[I]f there had been a successful home invasion here and Mr. Gillis had left the home and was about to enter his car and the police had arrived upon the scene and he had shot one of the police, your view is that would not be ‘in the perpetration of the home invasion. Is that correct?” After clarifying that the hypothetical shooting occurred outside the curtilage of the home, defense counsel responded, “I think it can’t take place there.”
While not at issue in this case, we also note that a defendant’s plan to “carry out” the predicate felony may also include acts leading up to the commission of that felony. Professor Wayne LaFave notes:
“Where a causal connection between the killing and the underlying felony exists, courts generally have held that a killing may take place sometime before or after, as distinguished from during, the felony and yet still qualify as a killing ‘in the commission or attempted commission of the felony.” [Thew, supra at 86, quoting People v Goddard, 135 Mich App 128, 135; 352 NW2d 367 (1984), quoting LaFave & Scott, Criminal Law, § 71, p 555 (emphasis supplied).]
See, e.g., State v Nelson, 65 NM 403, 411; 338 P2d 301 (1959) (rejecting the defendant’s argument that a murder that precedes the predicate felony cannot be felony murder on the basis that “[i]f a killing is committed within the res gestae of the felony charged, whether the homicide occurred before or after the felony, is not determinative”).
See, e.g., MCL 750.316(l)(b); Cal Penal Code § 189 (murder “committed in the perpetration of, or attempt to perpetrate” an enumerated felony is first-degree murder); Idaho Code § 18-4003(d) (“Any murder committed in the perpetration of, or attempt to perpetrate” an enumerated felony is first-degree murder.).
Podolski was decided before People v Aaron, 409 Mich 672, 727-728; 299 NW2d 304 (1980). In Aaron, we held that a homicide that occurred during the commission of a felony constitutes murder only if the prosecutor specifically proves the existence of malice. Thus, the more precise statement of Podolski, in light of Aaron, is that a murder “committed immediately after a robbery, apparently for the purpose of preventing detection, is [felony murder].” Podolski, supra at 518.
Defendant argues that the res gestae principle is no longer applicable in light of this Court’s decision in People v Randolph, 466 Mich 532; 648 NW2d 164 (2002). In Randolph, this Court addressed the issue whether a completed larceny could be “elevated” to unarmed robbery if the defendant uses force before reaching a point of temporary safety. In a divided decision, this Court held that this “transactional approach” was contrary to the language of the statute and that in order for a larceny to be elevated to unarmed robbery, the force and the felonious taking must occur contemporaneously. According to defendant, Randolph applies by analogy to this case. The crime of home invasion was complete at the moment defendant entered the building, and the murders took place after defendant left the home and in a place several miles away. The crimes, he argues, were not contemporaneous and, therefore, the felony-murder statute should not apply.
However, we believe that Randolph has no applicability in the present context. The murder statute, unlike the unarmed robbery statute in Randolph, contains the word “perpetration”— a word that encompasses a broader range of activities than the core elements of robbery at issue in Randolph. We note that the Legislature responded to our decision in Randolph by amending the robbery statute, MCL 750.530, to include circumstances where force was used “in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.” 2004 PA 128.
The concurrence/dissent would define “perpetration” to require that the police either be in hot pursuit following commission of the underlying felony or that they take up a chase initiated by a civilian. Post at 144-146. However, it fails to cite any authority for its definition, and, in fact, its definition has been rejected by a number of courts. See, e.g., Oliver, supra at 523 (rejecting as “incredible” the defendant’s assertion that he had reached a point of temporary safety by driving unpursued for half an hour after committing a bank robbery and holding that his subsequent murder of a State Police trooper was committed “in the perpetration of” the bank robbery); State v Squire, 292 NC 494, 512; 234 SE2d 563 (1977) (holding that the defendants who had left the scene of an armed robbery without pursuit had “[o]bviously. . . not reached what they regarded as a place of temporary safety” when their vehicle was pulled over by a police officer 13 minutes after the robbery); Lampkin v State, 808 P2d 694 (Okla Crim App, 1991) (holding that a defendant who was observed disobeying a stop sign in the vicinity of a robbery, but who was not being pursued for the robbery, was still “in the perpetration of” that robbery when he led police on a high-speed chase that ended in a fatal collision); People v Salas, 7 Cal 3d 812; 103 Cal Rptr 431; 500 P2d 7 (1972) (holding that the defendants, who had left the scene of an armed robbery unpursued but were stopped by police just three minutes after leaving the scene, had not reached a place of temporary safety when one of the defendants shot and killed the officer).
The concurrence/dissent attempts to explain the nearly universal rejection of its novel definition of “perpetration” by theorizing that the term has a different meaning in the context of felonies involving the asportation of stolen property. Post at 146 n 4. Specifically, it suggests that a defendant “must be engaged in some act that is required for the full execution of the underlying crime for the defendant to be considered still in perpetration of that felony.” Id. (emphasis deleted), citing Franks v State, 636 P2d 361, 365 (Okla Crim App, 1981). Because defendant here was not transporting stolen property, he “was not engaged in some act required for the full execution of a home invasion when the trooper attempted to stop him.” Id. However, in almost every circumstance escape is part of a defendant’s plan to commit a felony. Kelly, supra at 175. Thus, the instant home invasion, as with any other felony, was not “fully executed” until defendant effected his escape.
While Professor LaFave only lists the first three factors, he makes clear that a jury must also consider whether the murder was committed within the same “ ‘chain of events’ ” as the predicate felony. Id. at 464-465. Thus, “continuity of action” is a distinct factor that should be considered by a jury. See, e.g., State v Pierce, 23 SW3d 289, 295 (Tenn, 2000) (citing LaFave and stating that “we must evaluate the sufficiency of the evidence to determine if the [killing] and the felony . .. are closely connected in time, place, and causation, and continuity of action”).
While the LaFave factors have not been considered as a whole by Michigan courts, we note that the individual factors have been separately addressed in a number of cases. See, e.g., Thew, supra (discussing the time between the defendant’s commission of criminal sexual conduct and the murder of the victim); Gimotty, supra (noting the causal connection between the commission of retail fraud and a murder committed while the defendant was attempting to flee from the scene); Oliver, supra (holding that a defendant who was driving unpursued at normal highway speeds had not broken the chain of events linking the commission of a robbery and the murder of a State Police trooper).
But see Franks v State, 636 P2d 361 (Okla Crim App, 1981). In Franks, the defendant was stopped by a police officer for a traffic violation ten blocks away from the scene of an armed robbery. The officer was unaware of the robbery at the time of the stop. The defendant managed to disarm the officer and leave without being arrested. While the defendant was driving unpursued, he disobeyed a stop sign, striking another vehicle and killing the driver. The Oklahoma Court of Criminal Appeals held that the accident was unrelated to the robbery, primarily because the defendant “was not pursued as he left the grocery store robbery nor was he being chased by a police car at the time of the accident.” Id. at 365.
We are not holding that the jury may consider defendant’s subjective understanding of whether he had reached a point of temporary safety Instead, we are merely holding that the jury may consider all the objective facts surrounding defendant’s flight, including reasonable inferences that may be drawn from this evidence. The question whether defendant has reached a point of temporary safety is a question of fact for the jury. Here, a juror could reasonably infer from defendant’s actions that he was aware that Albright had spotted him at the scene of the home invasion. The jury properly considered this inference as evidence that defendant had not truly reached a point of temporary safety.
The concurrence/dissent asserts that we have created “a rule that there is no rule and the question whether defendant has reached a place of temporary safety always goes to the jury.” Post at 145. However, we simply hold that “perpetration” constitutes an element of first-degree murder. As with any other element of any other crime, the trial court may direct a verdict in favor of the defendant when the prosecutor fails to "introduce sufficient evidence which could justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt. . . .” People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). But, where a reasonable juror could find that a defendant was “in the perpetration of” the underlying felony when the defendant committed the murder, as is the case here, the question whether the defendant has reached a place of temporary safety does constitute a question for the finder of fact. Smith, supra at 190.
The Court of Appeals did not reach defendant’s other claims of instructional error— that the trial court denied defendant’s request for instructions on first-degree fleeing and eluding (causing death) and voluntary manslaughter.
Even if defendant was entitled to an involuntary manslaughter instruction, the trial court’s failure to so instruct constituted harmless error. Harmless error analysis is applicable to instructional errors involving necessarily included lesser offenses. People v Cornell, 466 Mich 335, 361; 646 NW2d 127 (2002). Such errors are deemed non-constitutional errors. Id. at 363. “[A] preserved, non-constitutional error is not a ground for reversal unless ‘after an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). Here, defendant was charged with both first- and second-degree murder. The jury convicted of first-degree murder, the greater offense. Given the jury’s refusal to either acquit or convict of the lesser offense, defendant has failed to demonstrate that a “miscarriage of justice” occurred when the trial court failed to instruct on involuntary manslaughter.
We also directed the parties to address the issue whether the Court of Appeals order of remand for a new trial violated the separation of powers doctrine. Const 1963, art 3, § 2. The power to determine whether to charge a defendant and what charge should be brought is an executive power, which vests exclusively in the prosecutor. People v Williams, 244 Mich App 249, 252-253; 625 NW2d 132 (2001), citing Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972). The exercise of judicial power over the discharge of the prosecutor’s duties “is limited to those activities or decisions by the prosecutor that are unconstitutional, illegal, or ultra vires.” People v Morrow, 214 Mich App 158, 161; 542 NW2d 324 (1995).
When the Court of Appeals remanded this case to the trial court, it noted that “[djefendant should properly have been charged with fleeing and eluding and second-degree murder.” Gillis, supra, slip op at 4. We do not believe that this statement constitutes a usurpation of the prosecutor’s powers. Rather, the Court of Appeals was simply advising the trial court as to the new trial in accordance with its holding that defendant could not be charged with first-degree felony murder. Had the Court of Appeals purported to substitute its judgment for that of the prosecutor by determining what criminal charges should be brought against defendant, we agree with the prosecutor that there would have been separation of powers implications. | [
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WEAVER, J.
This architectural malpractice case poses the issue whether MCL 600.5839 is only a statute of repose, in which case MCL 600.5805(6) or (10) supplies a shorter limitations period, or is itself both a statute of repose and a statute of limitations. The Court of Appeals concluded that § 5839 is both a statute of repose and a statute of limitations and thus the plaintiffs cause of action is not time-barred. We agree and accordingly affirm that decision and remand the matter to the circuit court.
FACTS
In April 1998, defendant Edward Schulak, Hobbs & Black, Inc., architects and consultants, was the architect in a renovation project, designing renovations for office spaces at 12222 East Thirteen Mile Road in Warren, Michigan. Plaintiff Jennifer L. Hudock worked in the offices from April 24, 1998, through August 24, 1998. Plaintiff alleges that during that time she was exposed to environmental hazards such as fungus, mold, bacteria, formaldehyde, and carbon dioxide as a result of the renovations to the building’s heating, cooling, ventilation, and plumbing systems. She claims that she sustained personal injuries as a result of environmental hazards arising from the renovation of her workplace.
Plaintiff initiated this action for damages on May 10, 2000. In her first amended complaint filed November 14, 2000, plaintiff alleged that defendant-architect negligently exposed plaintiff to a hazardous environment that caused injury and increased the risk of injury in the future. Defendant first moved for summary disposition, challenging the merits of plaintiff’s claim. The circuit court then allowed defendant to amend its affirmative defenses to include the claim that plaintiffs suit was time-barred by the two-year limitations period of MCL 600.5805(6).
The circuit court granted defendant’s motion for summary disposition, holding that the two-year limitations period for malpractice claims of MCL 600.5805(6) applied. However, the Court of Appeals affirmed in part, reversed in part, and remanded the matter to the circuit court, holding that the six-year limitations period of MCL 600.5839(1) applies to plaintiffs action for damages.
We granted defendant’s application for leave to appeal and directed that the parties include among the issues to be briefed
(1) whether MCL 600.5839(1) precludes application of the statutes of limitations prescribed by MCL 600.5805 and, if not, (2) which statute of limitations, MCL 600.5805(6) or MCL 600.5805(10), is applicable to the claim asserted against defendant Edward Schulak, Hobbs & Black, Inc., in this case.[ ]
STANDARD OF REVIEW
This Court reviews 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). This case involves a question of statutory interpretation, which this Court also reviews de novo. Oade v Jackson Nat’l Life Ins Co, 465 Mich 244, 250-251; 632 NW2d 126 (2001).
ANALYSIS
A person cannot commence an action for damages for injuries to a person or property unless the complaint is filed within the periods prescribed by MCL 600.5805. Gladych v New Family Homes, Inc, 468 Mich 594, 598; 664 NW2d 705 (2003). MCL 600.5805(1) provides:
A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
The several subsections of MCL 600.5805 define periods of limitations for various types of actions to recover damages for injuries to persons or property.
Relevant to this case, MCL 600.5805(6) provides for a two-year period of limitations for actions charging malpractice, MCL 600.5805(10) provides a three-year period of limitations for general negligence actions, and MCL 600.5805(14) addresses the period of limitations for an action for damages involving a state-licensed architect and an improvement to real property. The parties dispute the effect and proper interpretation of MCL 600.5805(14) and MCL 600.5839(1).
When interpreting statutes, “we presume that the Legislature intended the meaning clearly expressed .. ..” DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). Judicial construction is not required or permitted if the text of the statute is unambiguous. Id.
MCL 600.5805(14) was added to MCL 600.5805 in 1988. Subsection 5805(14) provides:
The period of limitations for an action against a state licensed architect, professional engineer, land surveyor, or contractor based on an improvement to real property shall be as provided in section 5839.
MCL 600.5839(1) in turn specifies a six-year period of limitations that begins to run “after the time of occupancy of the completed improvement, use, or acceptance of the improvement... .”
MCL 600.5839(1) was enacted twenty years before MCL 600.5805(14). MCL 600.5839(1) currently provides in full:
No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury, against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of the improvement, or against any contractor making the improvement, more than 6 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement, or 1 year after the defect is discovered or should have been discovered, provided that the defect constitutes the proximate cause of the injury or damage for which the action is brought and is the result of gross negligence on the part of the contractor or licensed architect or professional engineer. However, no such action shall be maintained more than 10 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement.
Defendant contends that the six-year period of MCL 600.5839(1) is a statute of repose that operates in addition to the shorter periods of limitations in MCL 600.5805(6) and (10). In other words, defendant claims that when an action arises within the six-year period specified by MCL 600.5839(1), the periods of limitations in MCL 600.5805 still apply. The Court of Appeals disagreed, however, holding that MCL 600.5839(1) is both a statute of limitations and a statute of repose so that an action for damages involving architects can be filed at any time within six years of the occupancy of the completed improvement.
This Court first addressed MCL 600.5839(1) in O’Brien v Hazelet & Erdal, 410 Mich 1; 299 NW2d 336 (1980). In O’Brien, this Court upheld the constitutionality of MCL 600.5839(1) and described the statute’s operation as follows:
[T]he instant statute is both one of limitation and one of repose. For actions which accrue within six years from occupancy, use, or acceptance of the completed improvement, the statute prescribes the time within which such actions may be brought and thus acts as a statute of limitations. When more than six years from such time have elapsed before an injury is sustained, the statute prevents a cause of action from ever accruing.[ ]
Regarding the purpose of the statute, O’Brien stated: “The Legislature chose to limit the liability of architects and engineers in order to relieve them of the potential burden of defending claims brought long after completion of the improvement.. . ,”
Despite O’Brien’s statement that MCL 600.5839(1) “acts as a statute of limitations” for claims arising within “six years from occupancy, use, or acceptance of the completed improvement,” defendant argues that the six-year period provided by MCL 600.5839(1) is merely a statute of repose that does not inhibit the application of the two-year period of limitations for malpractice claims or the three-year period of limitations for negligence actions of MCL 600.5805 (6) and (10).
For this argument, defendant relies on Witherspoon v Guilford, 203 Mich App 240; 511 NW2d 720 (1994). Witherspoon addressed whether the six-year period under MCL 600.5839(1) precludes the application of the three-year period of limitations of the current MCL 600.5805(10) “where the cause of action arises within six years after the use or acceptance of the improvement.” Witherspoon concluded that subsection 14 was added to MCL 600.5805 merely to “underscore [the Legislature’s] intent to grant § 5839 primacy over other arguably applicable periods of limitation, running from the time of discovery, whose effect would defeat the repose aspect of § 5839. ” Witherspoon further concluded that to apply MCL 600.5839(1) exclusively of the shorter periods of limitations in MCL 600.5805 would render portions of MCL 600.5805 nugatory.
Although Witherspoon correctly recognized that the current MCL 600.5805(14) and MCL 600.5839 “set forth an emphatic legislative intent to protect architects, engineers, and contractors from stale claims,” we find no evidence that through the enactment of MCL 600.5805(14) the Legislature intended MCL 600.5839(1) to merely serve as a statute of repose. Regarding which period of limitations applies to renovations to real property and the liability of a state- licensed architect who furnished the design for the renovations, there is no ambiguity in the language of either MCL 600.5805(14) or MCL 600.5839(1). MCL 600.5805(14) unambiguously provides that “[t]he period of limitations for an action against a state licensed architect.. . shall be as provided in section 5839.”
Because defendant is a state-licensed architect that furnished the design for the improvements to the real property that allegedly caused plaintiffs injury, under MCL 600.5839(1) the period within which plaintiff can “maintain any action to recover damages for... bodily injury” is six years “after the time of occupancy of the completed improvement, use, or acceptance of the improvement ....”
Moreover, it does not render any portion of MCL 600.5805 nugatory to hold that MCL 600.5839(1) is, as it plainly appears on its face, both a statute of repose and a statute of limitations. The periods of limitations of MCL 600.5805 for malpractice and general negligence actions remain applicable to any claim that does not involve “a state licensed architect, professional engineer, land surveyor, or contractor” and that is not “based on an improvement to real property____” MCL 600.5805(14).
Finally, our interpretation is not in conflict with the policies underlying MCL 600.5839(1) that this Court identified in O’Brien, supra at 16:
By enacting a statute which grants architects and engineers complete repose after six years rather than abrogating the described causes of action in toto, the Legislature struck what it perceived to be a balance between eliminating altogether the tort liability of these professions and placing no restriction other than general statutes of limitations upon the ability of injured plaintiffs to bring tort actions against architects and engineers. The Legislature could reasonably have concluded that allowing suits against architects and engineers to be maintained within six years from the time of occupancy, use, or acceptance of an improvement would allow sufficient time for most meritorious claims to accrue and would permit suit against those guilty of the most serious lapses in their professional endeavors.
As stated in O’Brien, “[t]he power of the Legislature to determine the conditions under which a right may accrue and the period within which a right may be asserted is undoubted.” Id. at 14.
CONCLUSION
We hold that MCL 600.5805(14) unambiguously directs that the period of limitations for actions against architects is provided by MCL 600.5839(1). Moreover, the six-year period of MCL 600.5839(1) operates as both a statute of limitations and a statute of repose. Therefore, plaintiffs action for damages, brought well within this time period, is not time-barred. The Court of Appeals decision is affirmed and this case is remanded to the circuit court for further proceedings. To the extent that the Court of Appeals decision in Wither-spoon, supra, is inconsistent with this opinion, it is overruled.
Taylor, C.J., and Cavanagh, Weaver, Corrigan, YOUNG, and MARKMAN, JJ., concurred.
263 Mich App 1; 687 NW2d 309 (2004).
Plaintiffs husband’s claim is derivative. The other plaintiffs in this case, Ellen M. and Thane Ostroth, and two other defendants, Warren Regency, G.P., L.L.C.; and Warren Regency Limited Partnership, are not parties to this appeal.
472 Mich 898 (2005).
MCL 600.5805 has been amended several times: the current subsection 6 was formerly subsection 4; the current subsection 10 was formerly subsection 8; and, the current subsection 14 was formerly subsection 10.
1988 PA 115.
1967 PA 203. As originally enacted, MCL 600.5839(1) did not provide a one-year discovery provision or the final ten-year period for gross negligence claims. These provisions were added by 1985 PA 188 at the same time the statute was expressly expanded to include contractors.
“ ‘A statute of repose limits the liability of a party by setting a fixed time after .. . which the party will not be held hable for ... injury or damage .... Unlike a statute of limitations, a statute of repose may bar a claim before an injury or damage occurs.’ ” Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 513 n 3; 573 NW2d 611 (1998)(citation omitted).
O’Brien, supra at 15.
Id. at 14.
Id. at 15.
Witherspoon, supra at 246.
Id.
Id. at 247.
Cf. Michigan Millers Mut Ins Co v West Detroit Bldg Co, Inc, 196 Mich App 367; 494 NW2d 1 (1992), concluding that the effect of MCL 600.5805(14) on MCL 600.5839(1) was ambiguous on a different question than that presented by this appeal. Michigan Millers concluded that MCL 600.5805(14) was ambiguous regarding whether the Legislature intended that the six-year period of MCL 600.5839(1) be applied to all actions based on improvements to real property, both third-party actions and actions for professional malpractice. The panel examined the legislative history and held that the Legislature intended that MCL 600.5839(1) did apply to both types of claims.
We note that Witherspoon appears to have been the “first out” under MCR 7.215(J)(1) on the precise question of statutory interpretation presented in this case. However, our decision to overrule Witherspoon to the extent that it is inconsistent with our decision resolves any conflict on the question. | [
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KELLY, J.
We granted leave in this case to determine: whether “common-law” arbitration should be deemed preempted by the Michigan arbitration act (MAA), MCL 600.5001 et seq., and, if common-law arbitration continues to exist, (1) what language must be included in an agreement to make it subject to the rules of statutory arbitration; (2) whether common-law arbitration agreements should be unilaterally revocable; and (3) whether the arbitration in this case, if it was common-law arbitration, became statutory arbitration because of the conduct of the parties during the arbitration process.
We hold that common-law arbitration is not preempted by the MAA and that common-law arbitration continues to exist in Michigan jurisprudence. In addition, common-law arbitration agreements continue to be unilaterally revocable before an arbitration award is made. And the common-law arbitration in this case was not transformed into statutory arbitration because of the conduct of the parties during the arbitration process.
We affirm the Court of Appeals determination that the trial court erred in granting defendants’ motion for summary disposition and in denying plaintiffs motion to vacate the arbitration award.
THE UNDERLYING FACTS
In June 2000, plaintiff Wold Architects and Engineers, an architectural engineering firm, entered into an agreement to purchase the assets of defendant Strat and Associates, Inc. (Strat, Inc.), an architectural firm specializing in government and institutional work. Defendant Thomas Strat (Strat) is the sole owner of Strat, Inc. As part of the purchase agreement, Strat entered into a five-year employment agreement with Wold. Under the agreement, he was expected to develop business and consult. His compensation was based primarily on the profitability of Wold’s Troy, Michigan, office. The employment agreement included an arbitration provision:
The parties agree to submit any disputes arising from this Agreement to binding arbitration. The arbitrator shall be selected through the mutual cooperation between the representatives or counsel for the respective parties, failing agreement on which may be referred by either party to the Detroit Regional Office of the American Arbitration Association for appointment of an arbitrator and processing under their Voluntary Labor Arbitration Rules. [Employment/Incentive Compensation Agreement, p 5.]
The asset purchase agreement, unlike the employment agreement, did not include an arbitration agreement. The purchase agreement transferred, among other assets, the renovation then in progress of the Macomb County courthouse. At the time of contracting, Strat, Inc. had already billed the county for 53 percent of the total project fee. Wold’s senior accounting staff carefully reviewed the books and status of the project. Also, Wold had the opportunity to inspect the status of the project.
After the parties entered into the purchase agreement, Wold concluded that, rather than 47 percent of the project remaining in need of completion, 70 percent was incomplete. It began to withhold payments due under the employment agreement on the basis that Strat, Inc., had overstated the percentage of completion of the courthouse project and other projects.
Strat filed a demand for arbitration with the American Arbitration Association (AAA) on January 22,2002, claiming that Wold owed him payments under the employment agreement. The AAA wrote both parties on February 12, 2002, indicating that its commercial dispute resolution procedures would govern all disputes rather than the voluntary labor arbitration rules specified in the contract. The AAA made the change because it deemed the commercial dispute procedures more apt for the situation at hand. They state that judgment on the arbitration award may be entered in the circuit court. The parties did not agree to this change in writing, and no writing signed by the parties exists that contains such a provision.
In March, Wold filed a counter-demand for arbitration claiming that Strat had billed too much for the courthouse project. The parties then selected an arbitrator who held a prehearing conference in July. Document exchanges and witness disclosures followed. Wold agreed to an administration schedule that included an evidentiary hearing in October 2002.
Wold sent letters to the AAA in August and September questioning the scope of the arbitration. On October 8, it revoked its agreement to arbitrate, claiming that Strat had asserted claims that more properly fell under the asset purchase agreement, which contained no arbitration clause. It objected to use of the employment agreement arbitration clause because it created “a mess here that needs to be cleaned up.”
On October 11, the arbitrator decided that the arbitration hearing would proceed as scheduled. It was his opinion that the arbitration that was agreed to in the employment agreement could not be revoked unilaterally.
Wold filed the instant action in Oakland Circuit Court seeking a declaratory judgment that (1) the pending arbitration was invalid because the asset purchase agreement did not contain an arbitration provision, and (2) the arbitration provision in the employment agreement was unilaterally revocable because it lacked the requisite language to be a statutory agreement that is nonrevocable. The complaint alleged that defendants either negligently or innocently misrepresented the extent of the completion of the courthouse project, which amounted to fraud in the inducement. Wold also requested a preliminary injunction to prevent the scheduled arbitration.
At a hearing, the circuit court denied Wold’s motion to enjoin the arbitration and for summary disposition. It found that each of the claims submitted to the AAA could be arbitrated without irreparable harm to Wold. It ruled that the parties had included in their agreement all language required to qualify for statutory arbitration.
The arbitration proceeded as scheduled. On November 27, the arbitrator issued an award of $104,559.27 to Strat and declared, “This award is in full settlement of all claims and counter-claims submitted to this arbitration. All claims not expressly granted herein are hereby denied.”
Defendants then brought a motion in circuit court for summary disposition pursuant to MCR 2.116(C)(10). They contended that there was no longer a genuine issue of material fact concerning whether the parties had entered into a valid arbitration agreement. Wold moved to vacate the award, claiming that it had revoked the agreement to arbitrate.
The trial court granted defendants’ motion for summary disposition and denied Wold’s motion to vacate the award. Wold appealed to the Court of Appeals, contending, among other things, that the trial court had erred in finding that the employment agreement provided for binding statutory arbitration. The Court of Appeals held that the trial court had erred in enforcing the common-law arbitration agreement that Wold had revoked before the award was announced. Accordingly, the Court of Appeals reversed the judgment of the trial court and remanded the case for further proceedings. Wold Architects & Engineers, Inc v Strat, unpublished opinion per curium of the Court of Appeals, issued June 17, 2004 (Docket No. 246874). We granted leave to appeal. 472 Mich 908 (2005).
STATUTORY ARBITRATION
We review a trial court’s determination regarding a motion for summary disposition de novo. Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). This case presents questions of law that are also reviewed de novo. American Alternative Ins Co, Inc v York, 470 Mich 28, 30; 679 NW2d 306 (2004).
Michigan has long recognized that a distinction exists between statutory and common-law arbitration. Clement v Comstock, 2 Mich 359 (1852); F J Siller & Co v Hart, 400 Mich 578, 581; 255 NW2d 347 (1977), citing Frolich v Walbridge-Aldinger Co, 236 Mich 425, 429; 210 NW 488 (1926). Statutory arbitration is provided for in MCL 600.5001 et seq. In order for an agreement to qualify for statutory arbitration, it must meet certain requirements:
(1) All persons, except infants and persons of unsound mind, may, by an instrument in writing, submit to the decision of 1 or more arbitrators, any controversy existing between them, which might be the subject of a civil action, except as herein otherwise provided, and may, in such submission, agree that a judgment of any circuit court shall be rendered upon the award made pursuant to such submission.
(2) A provision in a written contract to settle by arbitration under this chapter, a controversy thereafter arising between the parties to the contract, with relation thereto, and in which it is agreed that a judgment of any circuit court may be rendered upon the award made pursuant to such agreement, shall be valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the rescission or revocation of any contract. Such an agreement shall stand as a submission to arbitration of any controversy arising under said contract not expressly exempt from arbitration by the terms of the contract. Any arbitration had in pursuance of such agreement shall proceed and the award reached thereby shall be enforced under this chapter. [MCL 600.5001 (emphasis added).]
MCL 600.5011 divests parties of the power to unilaterally revoke agreements made pursuant to MCL 600.5001. It provides:
Neither party shall have power to revoke any agreement or submission made as provided in this chapter without the consent of the other party, and if either party neglects to appear before the arbitrators after due notice, the arbitrators may nevertheless proceed to hear and determine the matter submitted to them upon the evidence produced by the other party. The court may order the parties to proceed with arbitration. [Emphasis added.]
MCL 600.5025 provides:
Upon the making of an agreement described in section 5001, the circuit courts have jurisdiction to enforce the agreement and to render judgment on an award thereunder. The court may render judgment on the award although the relief given is such that it could not or would not be granted by a court of law or equity in an ordinary civil action.
Because MCL 600.5001(1) applies to agreements made when there is an existing controversy between the parties, it covers agreements to arbitrate that are made after a cause of action has accrued. By contrast, MCL 600.5001(2) covers agreements to arbitrate causes of action that have yet to accrue.
The agreement in this case falls under MCL 600.5001(2), because that statute covers unaccrued claims. The agreement meets the first requirement of MCL 600.5001(2) because it is in writing. But, the agreement does not provide that a judgment of any circuit court may be rendered upon the award. Therefore, it does not qualify under MCL 600.5001(2) as an agreement providing for statutory arbitration, and it is not enforceable under MCL 600.5011 or MCL 600.5025.
COMMON-LAW ARBITRATION
When the parties’ agreement to arbitrate does not comply with the requirements of MCL 600.5001, the parties are said to have agreed to a common-law arbitration. Frolich, supra at 429. What characterizes common-law arbitration is its unilateral revocation rule. 4 Am Jur 2d, Alternative Dispute Resolution, § 94, p 148. This rule allows one party to terminate arbitration at any time before the arbitrator renders an award.
Although this Court first used the term “common law arbitration” as long ago as 1852, it was not until 1890 that we specifically stated:
It is conceded that an agreement to submit all matters in controversy between parties to arbitration, and thus oust courts of their jurisdiction, is void, and may be repudiated by either party at any time before award is made. [Chippewa Lumber Co v Phenix Ins Co, 80 Mich 116, 120; 44 NW 1055 (1890) (emphasis deleted).][ ]
The Chippewa Court held that, when a common-law arbitration agreement exists solely as a condition precedent to filing suit, it does not divest the courts of jurisdiction. Therefore, it is valid and will be enforced. Id. at 121-122, citing Stephenson v Piscataqua Fire & Marine Ins Co, 54 Me 55 (1866). This Court has not changed the unilateral revocation rule since it decided Chippewa in 1890.
PREEMPTION
Given that we have long recognized common-law arbitration in Michigan, the next question is whether the Legislature preempted it when it enacted the MAA.
The common law, which has been adopted as part of our jurisprudence, remains in force until amended or repealed. Const 1963, art 3, § 7. Whether a statutory scheme preempts, changes, or amends the common law is a question of legislative intent. Millross v Plum Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987), citing Jones v Rath Packing Co, 430 US 519; 97 S Ct 1305; 51 L Ed 2d 604 (1977). In Millross we observed:
In general, where comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have intended that the statute supersede and replace the common law dealing with the subject matter. [Millross, supra at 183, citing 2A Sands, Sutherland Statutory Construction (4th ed), § 50.05, pp 440-441.]
Michigan courts have uniformly held that legislative amendment of the common law is not lightly presumed. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 652 n 17; 513 NW2d 799 (1994). In interpreting statutory language, courts must determine and give effect to the intent of the Legislature. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). The first step in ascertaining legislative intent is to look at the words of the statute itself. House Speaker v State Admin Bd, 441 Mich 547; 495 NW2d 539 (1993).
In this case, the language of the MAA does not show an intention to abrogate common-law arbitration. It merely sets out guidelines indicating when agreements to arbitrate will be enforced.
Statutory and common-law agreements to arbitrate have long coexisted. 2 Michigan Law & Practice, 2d, Arbitration, § 1, p 504, citing Siller, supra. Frolich, supra, clarifies that statutory and common-law arbitrations coexist. Nothing in the MAA indicates that the Legislature intended to change this existing law.
The Legislature is presumed to know of the existence of the common law when it acts. Bennett v Weitz, 220 Mich App 295, 299; 559 NW2d 354 (1996). When wording the MAA, the Legislature could easily have stated an intent to abrogate common-law arbitration.
Defendants argue that the scheme set forth in MCL 600.5001 clearly evidences the Legislature’s intent to occupy the entire area of arbitration law. As previously observed, the MAA specifically covers two types of written agreements. MCL 600.5001(1) covers agreements to arbitrate a controversy that has already arisen, and MCL 600.5001(2) covers agreements to arbitrate possible future controversies. The statute does not refer to any other agreement, such as an oral agreement to arbitrate, which could survive our statute of frauds. Moreover, the MAA explicitly removes from its purview arbitration agreements made pursuant to “collective contracts between employers and employees or associations of employees in respect to terms or conditions of employment.” MCL 600.5001(3).
Also, importantly to this case, MCL 600.5011 specifically removes from its purview all agreements to arbitrate that do not conform to MCL 600.5001(1) or (2). For instance, the agreement in this case does not conform to MCL 600.5001(2) and is unenforceable under the MAA. Therefore, we conclude that the MAA, codified at MCL 600.5001 et seq., does not occupy the entire area of arbitration law and does not preempt common-law arbitration in Michigan.
Parties wishing to conform an agreement to MCL 600.5001(2) must put it in writing and require that a circuit court may render judgment upon the award made pursuant to the agreement. Otherwise, it will be treated as an agreement for common-law arbitration.
THE UNILATERAL REVOCATION RULE
Given that common-law arbitration exists in Michigan for agreements to arbitrate future controversies, we now turn to the question whether common-law arbitration agreements remain unilaterally revocable. The unilateral revocation rule was developed when courts were highly skeptical of arbitration. Many thought it to be against public policy for parties to divest the courts of jurisdiction. E E Trip Excavating Contractor, Inc v Jackson Co, 60 Mich App 221, 244; 230 NW2d 556 (1975).
Some courts have criticized the rule suggesting that this Court should exercise its powers to change the common law and eliminate the unilateral right to revoke. Specifically, an opinion and a concurrence from the Court of Appeals have asked this Court to clear the rule from this state’s jurisprudence. Hetrick, supra; Tony Andreski, Inc v Ski Brule, Inc, 190 Mich App 343; 475 NW2d 469 (1991) (GRIFFIN, EJ., concurring). The decision in Hetrick and the concurrence in Andreski argue that the rule is an atavistic vestige of the past, supported only by public policy arguments over 100 years old:
“The heavily case-loaded courts are no longer jealous of their jurisdiction. Where the parties, by a fair agreement, have adopted a speedy and inexpensive means by which to have their disagreements adjusted, we see no public policy reasons for the courts to stand in their way. On the contrary we have a clear expression of public policy in the legislative enactments which provide for statutory arbitration.” [Andreski, supra at 350 (GRIFFIN, PJ., concurring), quoting E E Trip, supra at 246-247.]
Nonetheless, we are unpersuaded that the time is ripe to change Michigan’s common-law arbitration unilateral revocation rule. When the Legislature enacted the MAA, it created a method for binding arbitration that protects the rights of those who choose such arbitration. By not specifically abrogating the unilateral revocation rule, the Legislature chose to retain as well the protections that the rule offers. Farties entering into agreements to arbitrate future claims do not have full knowledge of what matters would be encompassed by the arbitration.
The unilateral revocation rule protects the right to bring suit when claims arise that a party did not anticipate and would not want handled outside the courts’ direct protection. The Legislature has deter mined that public policy concerns do not require abrogation of the unilateral revocation rule, and we see no need to contravene that determination. See, e.g., Lowe v Estate Motors Ltd, 428 Mich 439, 467; 410 NW2d 706 (1987).
Second, the unilateral revocation rule leaves an option to parties entering into contracts in Michigan. As previously stated, parties agreeing to arbitrate claims that have not yet arisen may choose common-law arbitration specifically because of the unilateral revocation rule. The rule allows them flexibility in the event of a dispute. After a claim has arisen, the parties can arbitrate or not. If they prefer irrevocable arbitration, they can provide for it in their agreement or draft their agreement so that it provides for statutory arbitration.
Because of the long history and continuing utility of the unilateral revocation rule, we are unpersuaded of the need to overrule the rule. Hence, we affirm its existence as a useful part of Michigan jurisprudence.
CONDUCT OF THE PARTIES
We conclude that the issue whether the arbitration agreement here became statutory arbitration because of the conduct of the parties during the arbitration process must be answered in the negative.
The change from the voluntary labor arbitration rules to the commercial dispute resolution procedures did not transform the parties agreement from a common-law arbitration agreement to a statutory arbitration agreement. The basic requirement of MCL 600.5001 et seq. that the agreement must be made in writing is not met in this case. It is true that the parties acquiesced in using the commercial dispute resolution procedures, but that does not change the fact that there is no written agreement containing the statutorily required language.
Under common-law arbitration, Wold had the right to withdraw from the arbitration process at any time until the arbitrator made an award. Therefore, Wold’s unilateral revocation of the arbitration process was in conformity with its right under common-law arbitration and with the parties’ agreement.
CONCLUSION
We hold that common-law arbitration is not preempted by the Michigan arbitration act, MCL 600.5001 et seq., and that common-law arbitration continues to exist in Michigan jurisprudence. Parties wishing to conform their agreements to MCL 600.5001(2) must put their agreements in writing and require that a circuit court may enforce them. Otherwise, their agreements will be treated as agreements for common-law arbitration. In addition, common-law arbitration agreements continue to be unilaterally revocable before an arbitration award is made. And the common-law arbitration in this case was not transformed into statutory arbitration because of the conduct of the parties during the arbitration process.
We affirm the decision of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.
Taylor, C.J., and Cavanagh, Weaver, and Markman, JJ., concurred with KELLY, J.
Clement, supra.
The Court’s use of “conceded” indicates that this was settled law in 1890 despite the nonappearance of the rule in any opinion by this Court before Chippewa. This is further shown by the decisions cited from other jurisdictions in Chippewa such as President, Managers & Co of Delaware & Hudson Canal Co v Pennsylvania Coal Co, 50 NY 250 (1872), in which the New York Court of Appeals stated:
[T]he rule that a general covenant to submit any differences that may arise in the performance of a contract, or under an executory agreement, is a nullity, is too well established to be now questioned .... [Id. at 258.]
We disagree with the Court of Appeals dicta in Hetrick v David A Friedman, DPM, PC, 237 Mich App 264, 273; 602 NW2d 603 (1999), that Chippewa’s discussion of the revocation rule is dicta. “Dicta” is defined as follows:
“ ‘Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand, are, however illuminating, but obiter dicta and lack the force of an adjudication.’ ” [Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 719 n 101; 473 NW2d 268 (1991) (Levin, J., dissenting), quoting Hett v Duffy, 346 Mich 456, 461; 78 NW2d 284 (1956), quoting a headnote from People v Case, 220 Mich 379; 190 NW 289 (1922).]
The issue presented in Chippewa was whether the arbitration agreement between the parties was enforceable. Thus, a statement of the law regarding the enforceability of a common-law arbitration agreement was necessary to the determination of the case. Therefore, it is not dicta.
We also disagree with the Court of Appeals dicta in Hetrick, supra, that Norton v Hayden, 109 Mich 682; 67 NW 909 (1896), contradicts Chippewa. In Norton, the issue presented to the Court was whether the “making and delivery of an award [was] a condition precedent to the right of action[.]” Id. at 684. The plaintiff argued that, just because the agreement was a common-law arbitration, it was revocable at any time. Id. at 685. The Court disagreed and stated, “We must construe the parties contract as the parties have made it.” Id. Viewed in isolation, the statement appears to contradict Chippewa. However, on closer reading, the Court is merely stating that it must interpret the contract to determine if the parties made arbitration a condition precedent to bringing an action at law. The Chippewa Court held that agreements are enforceable in which arbitration is a condition precedent to bringing an action at law. Therefore, Norton is consistent with Chippewa’s holding.
MCL 566.132 provides in relevant part:
(1) In the following cases an agreement, contract, or promise is void unless that agreement, contract, or promise, or a note or memorandum of the agreement, contract, or promise is in writing and signed with an authorized signature by the party to be charged with the agreement, contract, or promise:
(a) An agreement that, by its terms, is not to be performed within 1 year from the making of the agreement.
Many, if not all, agreements to arbitrate, by their terms, could be performed within one year from the making of the contract. This is especially true under MCL 600.5001(1). Therefore, the statute of frauds would not bar oral agreements to arbitrate that by their terms could be performed within one year of the making of the agreements. | [
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TAYLOR, C. J.
In this case we are called on to determine under Michigan’s governmental immunity scheme what notice of a defect in a road the governmental agency responsible for road maintenance and repair must have before it can be held liable for damage or injury incurred because of the defect. We conclude that MCL 691.1402 and 691.1403 require that the governmental agency be aware that the defect rises to the level that, if not repaired, it unreasonably endangers public travel. Thus, a plaintiff must allege that the governmental agency had actual or constructive notice of a defect in the roadbed that, because of the agency’s failure to reasonably maintain or repair, resulted in the road being not reasonably safe and convenient for public travel. Here, plaintiffs did so plead, but in their motions for summary disposition, both parties raised and briefed only the question whether reasonable repair and maintenance had been done. Neither they nor the trial court recognized that defendant does not just have a duty to “maintain the highway in reasonable repair” but to “maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” Therefore, we affirm the Court of Appeals decision that reversed the trial court’s grant of summary disposition for defendant.
i
On May 31, 1999, plaintiff Diane Wilson was riding her bicycle on Monaghan Point Road. According to her, she had to “snake” her way through the innumerable potholes in the road. She alleged that at some point as she was riding along, she suddenly felt her handlebars drop down and she was thrown over the handlebars onto the road. After this fall, she suffered frequent migraines and blackouts.
Ms. Wilson sued the Alpena County Road Commission, which had jurisdiction over Monaghan Point Road. Her complaint alleged that the road had potholes in excess of six inches deep that had existed more than 30 days at the time of her accident and that defendant “failed to properly maintain Monaghan Pt. Rd. so as to be safe for vehicular travel.” She also argued that the road had for years been in a condition that was dangerous to public safety because it was persistently potholed and rutted and only full resurfacing could make it safe. Because full resurfacing had not been performed, she argued that the road commission had breached its duty under MCL 691.1402 to maintain and repair the road and thus was liable for her injuries.
The road commission moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (0(10), asserting that it was immune from suit because, among other reasons, it had no notice of a defective road that could constitute the notice that MCL 691.1403 requires before its immunity from suit is lost. In support of this, it argued that potholes had been repaired by a road crew that “cold patched” the road two weeks before plaintiffs accident and that no complaints were received after the cold patching. Thus, because it lacked notice of any six-inch potholes, that defect could not be used to establish an exception to the road commission’s immunity from suit. Plaintiff responded by claiming that even if the road commission had cold patched without subsequent complaints, the deteriorated condition of the road itself should suffice to establish the required notice.
The trial court granted defendant’s motion on the basis of its conclusions that resurfacing was outside the scope of defendant’s duty, that defendant lacked notice of a defect, and that plaintiff had not sufficiently shown causation. On appeal, the Court of Appeals reversed in a published opinion, concluding that plaintiff sufficiently pleaded a cause of action, plaintiffs claim was within the exception to governmental immunity, and material questions of fact remained regarding notice and causation.
We granted leave to appeal, 472 Mich 899 (2005), directing the parties to include among the issues briefed “whether the plaintiffs sufficiently pleaded facts and provided evidence sufficient to place their claim within the highway exception to governmental immunity, MCL 691.1402.”
ii
We review de novo the trial court’s grant of summary disposition. Chandler v Muskegon Co, 467 Mich 315, 319; 652 NW2d 224 (2002). A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). The trial court must consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion, Maiden, supra at 120, and if the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10), (G)(4); Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996).
Likewise, we review de novo an issue of statutory construction. Id. When interpreting statutory language, we are to ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute. Id. Statutory exceptions to the immunity of governmental agencies are to be narrowly construed. Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000).
in
Two related provisions of the government tort liability act (GTLA) are relevant to our decision today. MCL 691.1402(1) states in relevant part:
[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.
MCL 691.1403 states:
No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.
Thus, with regard to the governmental agency having jurisdiction over a highway, the Legislature has waived immunity from liability for bodily injury or property damage if the road has become, through lack of repair or maintenance, not reasonably safe for public travel. As we explained in Nawrocki, supra, MCL 691.1402(1) establishes the duty to maintain the highway in “reasonable repair.” The phrase “so that it is reasonably safe and convenient for public travel” simply refers to the duty to maintain and repair, and states the desired outcome of reasonably repairing and maintaining the highway; it does not establish a second duty to keep the highway “reasonably safe.” Nawrocki, supra at 160. Hence, the Legislature has not waived immunity if the repair is reasonable but the road is nonetheless still not reasonably safe because of some other reason. Nawrocki, supra; Hanson v Mecosta Co Rd Comm’rs, 465 Mich 492; 638 NW2d 396 (2002).
Viewing the GTLA as a whole, it can also be seen that the converse of this statement is true: that is, the Legislature has not waived immunity where the maintenance is allegedly unreasonable but the road is still reasonably safe for public travel. We note that, pursuant to MCL 691.1403, in order for immunity to be waived, the agency must have had actual or constructive notice of “the defect” before the accident occurred. In determining what constitutes a “defect” under the act, our inquiry is again informed by the “reasonably safe and convenient for public travel” language of MCL 691.1402(1). In other words, an imperfection in the roadway will only rise to the level of a compensable “defect” when that imperfection is one which renders the highway not “reasonably safe and convenient for public travel,” and the government agency is on notice of that fact.
Thus, while MCL 691.1402(1) only imposes on the governmental agency the duty to “maintain the highway in reasonable repair,” in order to successfully allege a violation of that duty, a plaintiff must allege that the governmental agency was on notice that the highway contained a defect rendering it not “reasonably safe and convenient for public travel.” The governmental agency does not have a separate duty to eliminate all conditions that make the road not reasonably safe; rather, an injury will only be compensable when the injury is caused by an unsafe condition, of which the agency had actual or constructive knowledge, which condition stems from a failure to keep the highway in reasonable repair.
If the agency knows, or should have known, of the existence of the defect or condition that makes the road defective, i.e., not reasonably safe for public travel, it has only a reasonable time to repair it. If it does not do so, it can be held liable for injury or damage caused by that defect. The Legislature has also indicated that knowledge and time enough to repair are conclusively presumed when the defect has been readily apparent to an ordinarily observant person for 30 days or longer before the injury.
It is this element of notice that the road was not reasonably safe for travel that is dispositive here. In this case, neither motion under MCR 2.116(C)(10) made any attempt to argue with supporting evidence the issue whether the road was reasonably safe for public travel and, if it was not, whether defendant had notice of that condition. While all parties concede that there was notice of certain problems — that the road was bumpy and required frequent patching — these problems do not invariably lead to the conclusion that the road was not reasonably safe for public travel. It may be that a road can be so bumpy that it is not reasonably safe, but to prove her case plaintiff must present evidence that a reasonable road commission, aware of this particular condition, would have understood it posed an unreasonable threat to safe public travel and would have addressed it. Over 93 years ago, in Jones v Detroit, 171 Mich 608; 137 NW 513 (1912), this Court made it clear that a road in bad repair, or with rough pavement, is not per se one that is not reasonably safe. As the Court said:
Nearly all highways have more or less rough and uneven places in them, over which it is unpleasant to ride; but because they have, it does not follow that they are unfit and unsafe for travel. The most that can be said for the testimony in this case is that it established the fact that the pavement on that part of [the street] was rough, and called for more careful driving than did other portions of it. \Id. at 611.]
More recently, in Scheurman v Dep’t of Transportation, 434 Mich 619, 631; 456 NW2d 66 (1990), this Court stated:
The purpose of the highway exception is not to place upon the state or the counties an unrealistic duty to ensure that travel upon the highways will always be safe. Looking to the language of the statute, we discern that the true intent of the Legislature is to impose a duty to keep the physical portion of the traveled roadbed in reasonable repair. [Emphasis added.]
Accordingly, because neither party showed there was no question of fact regarding the road commission’s statutorily required notice of an unsafe condition, both motions for summary disposition should have been denied by the trial court. The Court of Appeals correctly reversed the judgment of the trial court on that issue.
iv
To conclude, to defeat governmental immunity based on MCL 691.1402, a plaintiff must establish that the defendant knew or should have known about the defect and had notice that the defect made the road not reasonably safe and convenient for public travel. Plaintiff successfully pleaded in avoidance of immunity, but neither party showed there is no question of material fact on the matter. We agree with the Court of Appeals that plaintiff sufficiently raised a question of material fact on the issue of causation. We therefore affirm the Court of Appeals decision and remand this matter to the trial court for proceedings consistent with this opinion. Defendant is free to bring a second motion making the proper argument and submitting the proper supporting evidence, and plaintiff may attempt to defeat it by putting competent evidence in the record that defendant had notice that the road was not reasonably safe.
Affirmed and remanded to the circuit court.
Weaver, Corrigan, Young, and Markman, JJ., concurred with Taylor, C. J.
Suing also is her husband, Paul Wilson. His claim is for loss of consortium, -which is a derivative action. Therefore, we refer to Diane Wilson as “plaintiff.”
MCL 691.1402(1) requires that “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.”
Plaintiff correctly framed her claim in terms of a defect resulting from failure to maintain and repair, aware that a claim cannot be brought for defective design. Hanson v Mecosta Co Rd Comm’rs, 465 Mich 492, 500; 638 NW2d 396 (2002).
MCL 691.1403 states:
No governmental agency is hable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.
As one of defendant’s employees explained in his deposition, cold patching generally involves manually shoveling an asphalt mixture into the hole and allowing it to be compacted by the tires of passing vehicles.
There are two notice provisions in the statute. The notice provision at issue here, MCL 691.1403, requires for a finding of liability that the governmental agency have notice of the defect before the accident occurs. The other notice provision, MCL 691.1404, requires plaintiffs to provide notice of injury as a condition precedent to bringing suit. The defendant has not pursued its claim that the plaintiff failed to comply with MCL 691.1404. Therefore, we decline to address it.
263 Mich App 141; 687 NW2d 380 (2004).
The Nawrocki Court was not presented with the issue whether the road was reasonably safe. It decided two issues: whether the govemmen tal agency might owe a duty to a pedestrian pursuant to MCL 691.1402, and whether the duty extends to signage. | [
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On order of the Court, the Judicial Tenure Commission has issued a Decision and Recommendation for Discipline, and the Honorable Dana Fortinberry has consented to the commission’s findings of fact, conclusions of law and recommendation of public censure.
As we conduct our de novo review of this matter, we are mindful of the standards set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000):
[E]verything else being equal:
(1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct;
(2) misconduct on the bench is usually more serious than the same misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety;
(4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does;
(5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship.
The JTC should consider these and other appropriate standards that it may develop in its expertise, when it offers its recommendations.
In this case those standards are being applied to the following findings and conclusions of the Judicial Tenure Commission, which we adopt as our own:
1. Respondent has been a judge of the 52nd District Court, 2nd Division, since January 1, 2003.
2. Kelley Kostin (née Ott), an attorney and former magistrate in the 52nd District Court, is married to Robert Kostin, a local attorney. Mr. Kostin was previously married to Judith Kostin.
3. Judith Kostin died on September 17, 1989, while still married to Robert Kostin.
4. Following a postmortem examination on September 18, 1989, the Oakland County Medical Examiner, Dr. Bill Brooks, specifically determined the cause of death to be carbon monoxide intoxication, and the manner of death to be suicide. Dr. Brooks wrote in his report, which was incorporated into the White Lake Township police report:
We believe that Judith Kostin, a 46-year-old white female, died as the direct result of carbon monoxide intoxication and that this event was self-inflicted. Scene circumstance investigation was entirely consistent with such an act with a note consisting of a series of entries implying suicidal intent. Apparently, this individual was involved in domestic problems. There was no evidence of trauma or of assault upon the body inconsistent with the terminal event. The deceased appeared to be in otherwise good health. Toxicologic examination of body fluids reserved at the time of the autopsy are separately appended. No additional autopsy or postmortem investigation is anticipated by this office at this time.
5. Kelley Kostin was a candidate for an open seat on the 52nd District Court in the 2004 primary election.
6. Colleen Murphy, who at that time was a magistrate in the 52nd District Court, was a candidate for the same seat as Kelley Kostin.
7. Respondent supported Colleen Murphy for the position of judge of the 52-2 District Court.
8. On July 20,2004, respondent sent a five-page letter to Dave Curtis, Vice President of the Oakland County Deputy Sheriffs Association.
9. The letter concerned the association’s endorsement of Kelley Kostin in the judicial primary for the 52nd District Court.
10. In that letter, respondent made the following statements:
There is another factor that your members should know about in evaluating the legitimacy of the endorsement recommended by [Deputies] Hubanks and McClure. I know they could not have informed your members of this issue, because I am certain that the [Oakland County Deputy Sheriffs Association] would not have endorsed as it did if the facts had been fully explained. These are the facts:
In 1989, Kelley Ott was a law clerk at Oakland County Circuit Court, and she had a sexual affair with attorney Bob Kostin, who was at that time living in White Lake with his third wife [Judith Kostin], The previous Mrs. Kostin [Judith Kostin] found out about the affair, and shortly thereafter was found dead at their home. Due to the circumstances of the death, a police investigation was launched, albeit quietly because the then-and-current White Lake Township Police Chief, Ron Stephens, was a neighbor and friend of Bob Kostin. The investigation was inconclusive, and the case was closed as a suicide. Chief Stephens sealed the records of the investigation and they remain sealed to this day. According to another neighbor, Kelley Ott moved into Bob Kostin’s home less than a month after Mrs. Kostin’s death. Kelley Ott and Bob Kostin married in the mid-1990’s.
The questions raised by these facts are obvious, but the most important question is what such facts say about the moral fiber of Mr. and Mrs. Kostin. Is this the type of person your members want as a judge? I chose not to publicize the above incident during the 2002 campaign because I wanted to win on my own merits. Colleen Murphy has chosen not to bring it up for the same reason. As law enforcement officers, however, you deserve to know the truth.
11. Respondent asserted as “fact”:
a. Kelley Ott (while a law clerk in Oakland County Circuit Court) had a sexual affair with Robert Kostin in 1989, when he was married to another woman (Judith Kostin);
b. Judith Kostin found out about the affair shortly before she was found dead in her home;
c. The circumstances of the death launched a police investigation, which was conducted “quietly” as the White Lake Township Police Chief, Ron Stephens, was a neighbor and friend of Grievant;
d. The police investigation was inconclusive and the case was closed as a suicide. Chief Stephens sealed the records regarding the investigation and they remained sealed to the day Respondent issued the letter; and
e. A neighbor stated that Kelley Ott had moved into Bob Kostin’s house less than a month after his wife’s death.
12. If a hearing were held, White Lake Township Police Chief Ronald Stephens would testify that the police investigation regarding the death of Judith Kostin was not done “quietly,” and in fact was conducted as a standard investigation by the White Lake Township Police Department.
13. If a hearing were held, White Lake Township Police Chief Ronald Stephens would testify that he and Robert Kostin were not friends or neighbors at the time of the investigation.
14. If a hearing were held, White Lake Township Police Chief Ronald Stephens would testify that no aspect of the police investigation was “sealed” by the White Lake Township Police Department or Chief Stephens.
15. The police investigation into the death of Judy Kostin was not “inconclusive,” as there was an official determination that her death resulted from self-inflicted carbon monoxide intoxication.
16. Respondent had no first-hand knowledge of the truth or falsity of the facts stated in paragraphs 12, 13, 14, and 15, above, or of the representations described in subparagraphs 11(c) and 11(d), above.
17. Respondent did not undertake to independently verify the truth or falsity of the representations made in her July 20, 2004, letter.
18. Respondent intended the representations in her July 20, 2004, letter to raise questions regarding the moral fiber of both Robert Kostin and Kelley Ott Kostin.
19. Respondent admits that her conduct was imprudent, and she deeply regrets any resulting embarrassment she may have brought to the judiciary.
These standards set forth in Brown are also being applied to the conclusion of the Judicial Tenure Commission, which we adopt as our own:
Respondent’s conduct as admitted and described above constitutes:
(a) Failure to personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the Code of Judicial Conduct, Canon 1;
(b) failure to avoid all impropriety and appearances of impropriety to ensure that public confidence in the judiciary was not eroded, contrary to the Code of Judicial Conduct, Canon 2(A); and
(c) failure to conduct oneself at all times in a manner which would promote the public confidence in the integrity and impartiality of the judiciary, contrary to the Code of Judicial Conduct, Canon 2(B).
After reviewing the recommendation of the Judicial Tenure Commission, the respondent’s consent, the standards set forth in Brown, and the above findings and conclusions, we order that the Honorable Dana Fortinberry be publicly censured. This order stands as our public censure. | [
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PER CURIAM.
In this case, we are asked to decide whether a violation of the statute that makes it a felony to refuse to pay court-ordered support for a former or current spouse or for a child, MCL 750.165(1), is subject to the ten-year period of limitations in MCL 600.5809(4) or the six-year “catch-all” period of limitations in MCL 767.24(5). We are also asked to decide whether a violation of this statute constitutes a continuing offense.
We affirm the Court of Appeals conclusion that a charge of felony nonsupport is subject to the six-year period of limitations of MCL 767.24(5). We reject the Court of Appeals conclusion that a violation of MCL 750.165(1) is a continuing offense. We thus overrule People v Westman, 262 Mich App 184; 685 NW2d 423 (2004), to the extent that it is inconsistent with our decision in this case.
Defendant was charged with criminal nonsupport well after the six-year limitations period expired. The Court of Appeals thus erred in affirming the trial court’s denial of defendant’s motion to dismiss the charge. Accordingly, we affirm in part and reverse in part the Court of Appeals judgment. People v Monaco, 262 Mich App 596; 686 NW2d 790 (2004). We remand this case to the trial court for entry of an order granting defendant’s motion to dismiss the charge.
i
On August 20, 1984, defendant was ordered to pay child support for his two minor children under a default judgment of divorce. The order required
that the Defendant shall pay to the Friend of the Court for the County of Macomb to be transmitted to the Plaintiff for the support and maintenance of the minor children of the parties, the sum of $43.44 per week per child, for each of the two (2) minor children... until each of the said children have attained the age of eighteen or until further Order of this Court.
Defendant’s youngest child turned eighteen in March 1994. In December 2002, defendant was charged with violating MCL 750.165(1), which provides :
If the court orders an individual to pay support for the individual’s former or current spouse, or for a child of the individual, and the individual does not pay the support in the amount or at the time stated in the order, the individual is guilty of a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both. [Emphasis supplied.]
The statute does not contain an express limitation of actions provision.
At defendant’s preliminary examination, the pros ecution presented testimony that defendant’s child support arrearage amounted to $57,556.31, and that defendant had made no payments on the account since November 2001. Defendant’s arrearage included both unpaid child support and Family Independence Agency (FIA) surcharges. Commencing in January 1996, a biannual surcharge also attached to defendant’s delinquent account. The trial court bound defendant over, concluding that the judgment was “subject to the enforcement of the criminal sanctions.”
Defendant moved to dismiss the charge or quash the bindover, arguing that the criminal nonsupport charge was time-barred under the six-year limitations period contained in MCL 767.24(5), the catchall statute of limitations for crimes not otherwise specifically provided for in MCL 767.24. Defendant also argued that his prosecution under the amended statute violates the ex post facto clauses of the United States and Michigan constitutions. US Const, art I, § 10, cl 1; Const 1963, art 1, § 10.
The trial court denied defendant’s motion. The court ruled that the charge was not time-barred, relying on the ten-year period of limitations in MCL 600.5809(4). That statute provides:
For an action to enforce a support order that is enforceable under the support and parenting time enforcement act, Act No. 295 of the Public Acts of 1982, being sections 552.601 to 552.650 of the Michigan Compiled Laws, the period of limitations is 10 years from the date that the last support payment is due under the support order regardless of whether or not the last payment is made.
The Court of Appeals affirmed the trial court’s decision on different grounds. The panel held that the trial court erred in concluding that the matter was governed by the ten-year limitations period found in MCL 600.5809(4) because that statute pertains to civil actions for collection on monetary obligations, not to criminal actions. Instead, the panel concluded that the crime of felony nonsupport is subject to the six-year period of limitations found in MCL 767.24(5).
The panel then held that defendant’s failure to pay the arrearage of his court-ordered child support constitutes a continuing violation of MCL 750.165(1), because the court-ordered amount is both increased and reaffirmed every six months when the surcharge for nonpayment is added to the support arrearage. Expanding on the ruling in Westman, supra, in which the Court held that a violation of MCL 750.165(1) constitutes a continuing crime, the panel held:
[A] violation may be continuing under either the “amount owed theory” or the “time ordered theory.” Under the “amount owed theory,” the violation continues as long as an ordered support goes unpaid. The amount ordered is at the same time increased and reaffirmed each time the surcharge is added. For this reason, an “amount owed” violation may continue even beyond the child’s eighteenth birthday. Under the “time ordered theory,” the defendant violates MCL 750.165 when he fails to make the weekly support payment. The defendant also violates MCL 750.165 at the time each surcharge is added to the account and, at the same time, becomes due and owing. [Monaco, supra at 606-607.]
Applying an “amount owed” continuing violation theory, the Court of Appeals held that the statutory period of limitations on the felony-nonsupport charge against defendant never began to run because of defendant’s arrearage. The panel thus affirmed the trial court’s denial of defendant’s motion to dismiss the felony-nonsupport charge or quash the bindover.
ii
“In reviewing a district court’s decision to bind over a defendant, the lower court’s determination regarding the sufficiency of the evidence is reviewed for an abuse of discretion, but the lower court’s rulings based on questions of law are reviewed de novo.” People v Schaefer, 473 Mich 418, 427; 703 NW2d 774 (2005).
in
The first issue is the limitations period applicable to violations of MCL 750.165(1). We concur with the Court of Appeals that the appropriate limitations period for violations of MCL 750.165 is contained in MCL 767.24(5) and adopt its analysis appearing at 262 Mich App 601-603:
MCL 600.5809(4) more specifically addresses support orders:
“For an action to enforce a support order that is enforceable under the support and parenting time enforcement act, Act No. 295 of the Public Acts of 1982, being sections 552.601 to 552.650 of the Michigan Compiled Laws, the period of limitations is 10 years from the date that the last support payment is due under the support order regardless of whether or not the last payment is made.”
But the statute as a whole clearly applies only to civil actions, not criminal charges. If the language of a statute is clear, no further analysis is necessary or allowed to expand what the Legislature clearly intended to cover. People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). MCL 600.5809 sets forth a ten-year period of limitations for civil claims seeking enforcement and collection of a noncontractual money obligation. It does not identify any criminal charges whatsoever. Even MCL 600.5809(2), which applies in the criminal context, applies only to civil forfeiture actions based on a penal statute. MCL 600.5809(4) clearly identifies actions brought under the support and parenting time act and makes no reference at all to criminal charges, let alone the charge of felony nonsupport. Further, although the felony-nonsupport charge is related to an order of support pursuant to the support and parenting time act, it is a distinct criminal action that is not covered by MCL 600.5809.
The appropriate statutory limitations period is set forth in MCL 767.24[(5)]. MCL 767.24 generally identifies ... different limitations periods for ... different crime categories:
“[(5)] Ml other indictments shall be found and filed within 6 years after the offense is committed. [Emphasis added.]”
Because MCL 750.165 is not identified in [other subsections of the statute], it necessarily falls under subsection [5], which unambiguously identifies “all other indictments.” It is a settled rule of statutory construction that, unless otherwise defined in a statute, statutory words or phrases are given their plain and ordinary meanings. MCL 8.3a; People v Libbett, 251 Mich App 353, 365-366; 650 NW2d 407 (2002). “There is no broader classification than the word ‘all.’ In its ordinary and natural meaning, the word ‘all’ leaves no room for exceptions.” Skotak v Vic Tanny Int’l, Inc, 203 Mich App 616, 619; 513 NW2d 428 (1994).
IV
Defendant was charged with criminal nonsupport under MCL 750.165(1) more than eight years after his court-ordered support obligation ended. Defendant’s prosecution is, therefore, time-barred unless a violation of MCL 750.165(1) constitutes an offense that continues until an individual has fully satisfied the monetary support obligation, i.e., until the individual no longer has a support arrearage.
The Court of Appeals held that a violation of MCL 750.165(1) is a continuing offense because the FIA’s biannual surcharge led to a biannual violation of the statute by defendant. Under the Court of Appeals reasoning, that violation continues for as long as a payer owes any amount. We reject the conclusion that a violation of MCL 750.165(1) is a continuing offense.
The relevant question in this case is whether the Legislature intended a violation of MCL 750.165 to be a continuing offense. We review the statutory text to discern legislative intent. People v Lively, 470 Mich 248, 253; 680 NW2d 878 (2004).
An individual is guilty of felony nonsupport under MCL 750.165(1) if the individual “does not pay the support in the amount or at the time stated in the order ....” The word “or,” when read in context (“does not pay”), indicates that the statute is violated if the individual neither pays the ordered amount nor pays that amount when it is due. Thus, the plain language of MCL 750.165(1) directs that the crime of felony nonsupport is complete when an individual fails to pay support in the amount ordered at the time ordered. In other words, an individual may be guilty of felony nonsupport if the individual either pays the full ordered amount after the due date or pays an amount less than the ordered amount before the due date and the due date passes without the individual making full payment. Thus, anyone who fails to pay the full ordered amount at the time ordered may be prosecuted under MCL 750.165(1) even if that individual later becomes current on the obligation. The Legislature did not specify carrying a support arrearage as a means by which an individual could violate MCL 750.165(1). Because a person is subject to conviction and punishment each time the statute is violated, separate violations of the statute cannot constitute a single continuing offense.
Our conclusion finds further support when MCL 750.165(1) is compared to MCL 750.161. In MCL 750.161(6), the Legislature expressly provided:
Desertion, abandonment, or refusal or neglect to provide necessary and proper shelter, food, care, and clothing as provided in this section shall be considered to be a continuing offense and may be so set out in any complaint or information. [Emphasis supplied.]
Thus, in this statute, the Legislature expressly provided that these acts constitute continuing offenses. By con trast, no such language appears in MCL 750.165(1). “Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute . . . .” Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993).
We conclude that the Legislature did not intend that a violation of MCL 750.165(1) continue until an individual’s monetary support obligation is fully discharged.
v
In summary, the crime of nonsupport under MCL 750.165(1) is complete at the time that an individual fails to pay the ordered amount at the ordered time. Under the limitations period of MCL 767.24(5), a prosecutor has six years from that point in which to charge such violations. Here, because the six-year period of limitations expired before defendant was charged with criminal nonsupport, we need not reach defendant’s remaining argument that his prosecution violates constitutional ex post facto prohibitions. Accordingly, we reverse the portion of the Court of Appeals opinion that is inconsistent with our ruling and remand for entry of an order granting defendant’s motion to dismiss the charge.
Affirmed in part, reversed in part, and remanded to the trial court.
Taylor, C.J., and Cavanagh, Corrigan, Young, and MARKMAN, JJ., concurred.
The Court of Appeals opinion cites MCL 767.24(4) as the “catch-all” provision. In 2004, the Legislature redesignated subsections 4, 5, and 6. MCL 767.24(5) now provides the catchall limitations period.
In Westman, supra at 188-189, the Court of Appeals held that a violation of MCL 750.165 is a continuing offense. The defendant in Westman did not file an application for leave to appeal in this Court.
MCL 750.165(1) was amended by the Legislature effective November 3, 1999. “Under the amended version of MCL 750.165, evidence that an individual refused or neglected to pay child support and left the state is no longer necessary to establish felony failure to pay child support.” Westman, supra at 187.
Our conclusion that the six-year period of limitations in MCL 767.24(5) applies to violations of MCL 750.165 is in no way intended to alter or weaken the ten-year period of limitations in MCL 600.5809(4), because, as stated, the latter statute applies to civil claims for collection on monetary obligations, not to criminal actions.
We reject the dissent’s contention that our reading of the statute is contrary to its plain language. Contrary to what the dissent believes, our reading of the statute does not ignore the word “or” or replace the word “or” with the word “and,” but merely follows the context of the sentence in the statute. The dissent would ignore the context and hold that the statute can be violated by meeting just one of the two conditions listed in the statute. Such an interpretation would clearly fail to comply with the Legislature’s intent, as expressed in the unambiguous words of the statute. Under the dissent’s interpretation, an individual would violate the statute by failing to pay support in the required amount even if the payment was not yet due. We do not believe that the words of the statute show an intent by the Legislature to hold an individual criminally liable for failing to pay the ordered support amount without also considering the date the support payment was due. Further, the dissent’s interpretation would also allow an individual ordered to pay support to avoid satisfying the second condition (failure to pay at the time stated in the court order) by paying a negligible amount before the due date. Under such an interpretation, an individual could pay any amount to satisfy the requirement that payment be made at the time stated in the court order. We believe that under the unambiguous words of the statute, the amount of the support order must be considered together with the date it is due in determining whether a violation occurred.
We disagree with the dissent’s statement that the Legislature did not need to include such language in MCL 750.165 because the nature of felony nonsupport is such that the Legislature must assuredly have intended that it be treated as a continuing offense. The plain language of MCL 750.165(1) indicates that a violation occurs as soon as the due date passes without the individual paying the amount required. Thus, each violation of the felony-nonsupport statute has a distinct date. If the Legislature had meant for a violation of MCL 750.165(1) to be a continuing offense, it would have so stated. | [
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On order of the Court, the question certified by the United States Court of Appeals for the Ninth Circuit is considered, and the Court respectfully declines the request to answer the certified question. | [
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PER CURIAM.
The question before us in this defamation case is whether the period of limitations runs from the date of the alleged defamatory statement made by defendant or the date the statement was republished by a third party. We conclude that the limitations period ran from the date of the original alleged defamatory statement. Therefore, we reverse the judgment of the Court of Appeals and reinstate the circuit court’s judgment of summary disposition.
I. FACTS AND PROCEDURAL HISTORY
Defendant was the public relations director of the Department of Consumer and Industry Services. On February 22, 2000, she was interviewed by a reporter from WXYZ-TV regarding employment claims made by plaintiffs employees. During the interview, defendant stated that plaintiff was a “bad egg,” a statement that plaintiff claims was defamatory. The statement was broadcast by WXYZ-TV on February 25, 2000. Plaintiff filed a defamation complaint on February 26, 2001 (February 25 was a Sunday), more than a year after defendant made her statement but within a year from the date it was republished by WXYZ-TV
The limitations period for a defamation claim is one year. MCL 600.5805(9). The circuit court granted defendant summary disposition based on the statute of limitations, MCR 2.116(C)(7), ruling that defendant’s statement to the reporter started the limitations period running, and that defendant could not be held responsible for the republication by WXYZ-TV The Court of Appeals reversed and remanded. It concluded that defendant could be liable on the basis of the republication because it was plausible that the broadcast was the natural, and possibly intended, result of the interview. The Court found this was a factual issue to be considered on remand.
Defendant applied for leave to appeal to this Court. In lieu of granting leave to appeal, the Court heard oral argument on the application for leave to appeal pursuant to MCR 7.302(G)(1).
II. STANDARD of review
We review a summary disposition ruling de novo to determine whether the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Questions of statutory construction are also reviewed de novo. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002). In construing a statute, courts are to effect the intent of the Legislature, and if a statute is clear and unambiguous it should be enforced as written. Id. at 63.
III. ANALYSIS
The elements of a defamation claim are: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication. Rouch v Enquirer & News of Battle Creek (After Remand), 440 Mich 238, 251; 487 NW2d 205 (1992) (libel); Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583, 589; 349 NW2d 529 (1984) (defamation).
The one-year limitations period for defamation claims is found in MCL 600.5805(1), (9):
(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
(9) The period of limitations is 1 year for an action charging libel or slander. [Emphasis added.]
A defamation claim accrues when “the wrong upon which the claim is based was done regardless of the time when damage results.” MCL 600.5827.
MCL 600.5805(1) and (9) are clear and unambiguous. Our Legislature has clearly provided that a defamation claim must be filed within one year from the date the claim first accrued. The claim first accrued when the defamatory statement was made on February 22, 2000. The statute does not contemplate extending the accrual of the claim on the basis of republication, regardless of whether the republication was intended by the speaker. Because plaintiff filed suit against defendant more than a year after his claim first accrued, his cause of action is barred by the statute of limitations.
The plain language of MCL 600.5805 is inconsistent with plaintiffs claim that a third party’s expected republication of a defamatory statement affects the running of the limitations period for the initial statement. The statute provides a relatively short limitations period of one year; there is nothing in the statute suggesting that the period can effectively be lengthened where republication is anticipated. Rather than a rule of first accrual, the reasoning of the Court of Appeals changes the statute to a rule of last accrual. Such reasoning undermines the principles of finality and certainty behind a statute of limitations. See Stephens v Dixon, 449 Mich 531; 536 NW2d 755 (1995).
IV CONCLUSION
The judgment of the Court of Appeals is reversed and the circuit court’s judgment of summary disposition is reinstated.
Taylor, C.J., and Cavanagh, Weaver, Kelly, Corrigan, YOUNG, and Markman, JJ., concurred.
Currently the statute of limitations is MCL 600.5805(9). Amendments to MCL 600.5805 since the alleged defamation occurred in this case have no effect on this case.
Mitan v Campbell, unpublished, opinion per curiam, issued May 20, 2004 (Docket No. 242486).
471 Mich 938 (2004).
The republisher of the statement, WXYZ-Ty is not a party to this action. We are concerned only with defendant’s liability for WXYZ-TV’s republication of her statement.
The Court of Appeals relied on Tumbarella v Kroger Co, 85 Mich App 482, 496; 271 NW2d 284 (1978), for the proposition that the “general rule is that one who publishes a defamatory statement is liable for the injurious consequences of its repetition where the repetition is the natural and probable result of the original publication.” We neither accept nor reject that proposition because plaintiff neither alleged nor claimed damages for natural and probable consequences in his complaint. His sole allegation was that an injurious, defamatory statement was published on February 25, 2000, the date of the broadcast. Further, even if we were to accept the natural and probable consequences rule, no case from our jurisdiction has held that the rule extends the one-year period of limitations. The Tumbarella Court held merely that the original publisher was liable for the natural and probable consequences of his remarks. Because the Court of Appeals misinterpreted Tumbarella as extending the period of limitations, its rebanee on Tumbarella was misplaced.
Our decision renders moot the remaining arguments raised by plaintiff. | [
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KELLY, J.
This case calls on us to decide whether an accord and satisfaction existed between the parties. The Court of Appeals found that it did not. We disagree and rule that the parties reached an accord and satisfaction. Therefore, we reverse the decision of the Court of Appeals and remand the case to the trial court for entry of judgment in favor of defendants.
SUBSTANTIVE FACTS AND PROCEDURAL HISTORY
This case centers on a contract to remodel and reconstruct a lakeside residence in Edwardsburg, Michigan, made between plaintiff, Hoerstman General Contracting, Inc., and defendants Juanita and Ronald Hahn, the owners. Unfortunately, several unforeseen events during construction caused significant delay and cost overruns. When plaintiff did not meet the expected deadline to complete the work, Ronald Hahn informed plaintiffs owner that he wanted the job finished no matter the expense. Plaintiff agreed to work under these conditions if Ronald agreed to pay the extra costs. Ronald made it clear that he was not concerned with the price.
Plaintiff followed Ronald’s oral instructions on changes to the project. These were not minor modifications. They included moving walls and tearing up concrete floors. According to plaintiff, a later-compiled written list of the oral changes to the contract covered over ten pages. Despite these significant alterations, Ronald refused to agree in writing to any changes to the existing contract.
Defendants acknowledged that they owed more than the original bid price and paid plaintiff $125,000. But plaintiff claimed defendants owed an additional $32,750. In an apparent attempt to settle the dispute, plaintiff sent a letter to defendants asking for $16,910.79. Plaintiff indicated that it would provide the lien waiver and close the account in exchange for payment of the amount requested.
Defendants did not pay the $16,910.79. Instead, they replied with a letter in which they calculated the balance due at $5,144.79. They included with the letter their check for that amount. They wrote “final payment” on the check. In the letter, they indicated that they believed that their payment of $5,144.79 closed the account. The letter provided:
If we send you a check for $5144.79 we will consider this account closed and will not expect discussion of the other * items.[ ] We will then expect the lein [sic] waiver to he sent. If this is not acceptable, we will have to resort to arbitration per attorney [sic].
Plaintiff sought legal advice. Its attorney crossed out the words “final payment” on the check and advised plaintiff to deposit it. Plaintiff followed this advice, credited defendants’ account in the amount of $5,144.79, and did not close the account.
When defendants made no additional payments, plaintiff brought suit seeking damages and foreclosure of its construction lien. Defendants counterclaimed for amounts they believed they had overpaid. In their answer to plaintiff’s complaint, defendants asserted the affirmative defense of accord and satisfaction. After a bench trial, the court awarded plaintiff approximately $26,000 after setting off $5,800 on defendants’ counterclaim. The court did not explicitly rule on the issue of accord and satisfaction.
Both parties appealed to the Court of Appeals. The Court of Appeals ruled that the words “final payment” on the check were not sufficient to inform plaintiff that acceptance of the check discharged the entire claim. Hoerstman Gen Contracting, Inc v Hahn, unpublished opinion per curiam of the Court of Appeals, issued June 15, 2004 (Docket No. 244507). This Court granted leave to appeal limited to whether an accord and satisfaction occurred in this case. 472 Mich 898 (2005).
STANDARD OF REVIEW
The existence of an accord and satisfaction may be decided as a question of law if the facts of the case are undisputed and not open to opposing inferences. Urben v Pub Bank, 365 Mich 279, 286; 112 NW2d 444 (1961). During oral argument, the parties conceded that the relevant facts here are not in dispute. Therefore, the case presents a question of law which we review de novo. Anzaldua v Band, 457 Mich 530, 533; 578 NW2d 306 (1998).
ACCORD AND SATISFACTIONS
An accord and satisfaction is an affirmative defense grounded in contract principles. An accord is a contract and requires a meeting of the minds of those who enter into it. Fritz v Marantette, 404 Mich 329, 334; 273 NW2d 425 (1978), quoting Gitre v Kessler Products Co, 387 Mich 619, 624; 198 NW2d 405 (1972). A satisfaction is the discharge of the debt occurring after acceptance of the accord.
Cases in which an accord and satisfaction defense is relevant involve a good-faith dispute about an unliquidated amount owing under a contract. One party makes a tender in satisfaction of the claim (an accord). The other accepts or rejects the accord. If the second party accepts the tender, there is both an accord and a satisfaction. See Nationwide Mut Ins Co v Quality Builders, Inc, 192 Mich App 643, 647; 482 NW2d 474 (1992), citing Shaw v United Motors Products Co, 239 Mich 194; 214 NW 100 (1927).
In this Court’s handling of common-law accord and satisfaction, two lines of cases developed. The first holds that whether there was a sufficient meeting of the minds for an accord and satisfaction is a question for the jury. The second holds that the required meeting of the minds is implied as a matter of law by the acceptance of the offer. The fact that the recipient altered or crossed out the accord is irrelevant.
As in this case, the affirmative defense of accord and satisfaction often involves the use of a check. A check is a negotiable instrument entered into between the maker and the payee. Huler v Nasser, 322 Mich 1, 6; 33 NW2d 637 (1948). As will be demonstrated later, when the Legislature enacted MCL 440.3311, it followed the second line of cases. This effectively repudiates any application of the first line of cases to accord and satisfactions involving negotiable instruments, leaving MCL 440.3311 to control all accord and satisfactions involving negotiable instruments.
UCC PREEMPTION IN CASES INVOLVING NEGOTIABLE INSTRUMENTS
In 1964, the Michigan Legislature enacted the Uniform Commercial Code. In 1993, the Legislature added to Article 3 of the UCC a provision governing accord and satisfaction. Article 3 is known as the “Uniform Commercial Code-Negotiable Instruments.” MCL 440.3101. It is compendious and by its terms is intended to apply to all negotiable instruments with limited exceptions not relevant here.
MCL 440.3311 of Article 3 provides:
(1) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and (Hi) the claimant obtained payment of the instrument, the following subsections apply.
(2) Unless subsection (3) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.
(3) Subject to subsection (4), a claim is not discharged under subsection (2) if either of the following applies:
(a) The claimant, if an organization, proves that (i) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place, and (ii) the instrument or accompanying communication was not received by that designated person, office, or place.
(b) The claimant, whether or not an organization, proves that within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This subdivision does not apply if the claimant is an organization that sent a statement complying with subdivision (a)(i).
(4) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.
Whether a statutory scheme such as MCL 440.3311 preempts the common law is a question of legislative intent. Millross v Plum Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987).
In general, where comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have intended that the statute supersede and replace the common law dealing with the subject matter. [Id., citing 2A Sands, Sutherland Statutory Construction (4th ed), § 50.05, pp 440-441.]
The Legislature has the authority to abrogate the common law. Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 507-508; 309 NW2d 163 (1981). When it does so, it should speak in no uncertain terms. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 652 n 17; 513 NW2d 799 (1994), quotingBandfield v Bandfield, 117 Mich 80, 82; 75 NW 287 (1898).
As already noted, Article 3 of the UCC is comprehensive. It is intended to apply to nearly every situation involving negotiable instruments. See MCL 440.3102. The language contained in MCL 440.3311 completely covers the details of accord and satisfactions.
MCL 440.3311(3) and (4) contain exceptions or conditions. Their enumeration eliminates the possibility of their being other exceptions under the legal maxim expressio unius est exclusio alterius. The maxim is a rule of construction that is a product of logic and common sense. Feld v Robert & Charles Beauty Salon, 435 Mich 352, 362; 459 NW2d 279 (1990), quoting 2A Sands, Sutherland Statutory Construction (4th ed), § 47.24, p 203. This Court long ago stated that no maxim is more uniformly used to properly construe statutes. Taylor v Michigan Public Utilities Comm, 217 Mich 400, 403; 186 NW 485 (1922).
Therefore, the language of the statute shows that the Legislature covered the entire area of accord and satisfactions involving negotiable instruments. It clearly intended that the statute would abrogate the common law on this subject.
Our conclusion is buoyed by the UCC comment to MCL 440.3311. It notes that conflict existed previously over whether the common law was modified by the predecessor of MCL 440.3311, former section 1-207. By updating Article 3, it informs us, the Legislature intended to alleviate these conflicts and update the law of accord and satisfaction. Specifically, the comment provides:
As part of the revision of Article 3, Section 1-207 has been amended to add subsection (2) stating that Section 1-207 “does not apply to an accord and satisfaction.” Because of that amendment and revised Article 3, Section 3-311 governs full satisfaction checks. Section 3-311 follows the common law rule with some minor variations to reflect modern business conditions. [MCLA 440.3311, comment 3.]
These comments support a finding of preemption. They demonstrate the Legislature’s intent to modify and update the common law. Therefore, we hold that MCL 440.3311, not the common law, applies to an accord and satisfaction involving a negotiable instrument such as a check. And we apply this statute to the case at hand.
APPLYING MCL 440.3311 OF THE UCC TO THIS CASE
The first requirement of an accord and satisfaction is a good-faith tender to the claimant as full satisfaction of the claim. MCL 440.3311(l)(i). Article 3 contains an internal definition of “good faith”: “ ‘Good faith’ means honesty in fact and the observance of reasonable commercial standards of fair dealing.” MCL 440.3103(l)(d).
Defendants demonstrated “honesty” in their settlement offer to plaintiff. They offered plaintiff what defendants thought was a fair deal. In their letter to plaintiff, as part of the accord, defendants went through the various additions to the construction contract. They estimated what each cost and listed each disputed item. Juanita Rems Hahn gave a full explanation of why defendants thought they should not have to pay for the disputed items. Defendants’ accounting also included a detailed list of all payments made. In total, the accounting covers several pages.
After adding their estimation of all costs and subtracting all the payments, defendants arrived at $5,144.79 as the amount of the accord and tendered it to plaintiff. Given that this tender was made in such detail and with clear explanations of its reasoning, we conclude that defendants’ tender was made in “good faith” as required by MCL 440.3311(l)(i).
The second requirement of an accord and satisfaction involving a negotiable instrument is that the claim be unliquidated or subject to a bona fide dispute. MCL 440.3311(l)(ii). Black’s Law Dictionary (7th ed) defines an “unliquidated claim” as “a claim in which the liability of the party or the amount of the claim is in dispute.”
Plaintiff performed extra work without an agreement regarding the amount to be paid. Because the cost of the changes and overruns were left unspecified and are in dispute, the claim for them is unliquidated.
Plaintiff argues the contrary. It asserts that, to the extent that defendants conceded that they owed part of the disputed debt, that portion of the debt was liquidated. This Court previously rejected this argument:
“The fact that part of the claim was conceded did not divide the liability into two liquidated claims. Whatever the rule in other jurisdictions, this court holds that such a claim is unliquidated and payment of the conceded amount furnishes consideration for settlement of the whole.” [Lehaney v New York Life Ins Co, 307 Mich 125, 131; 11 NW2d 830 (1943), quoting Long v Aetna Life Ins Co, 259 Mich 206, 209; 242 NW 889 (1932).]
See also Tanner v Merrill, 108 Mich 58; 65 NW 664 (1895). Defendants’ concession of part of the debt has no effect on the question whether the claim was liquidated.
The third requirement contained in MCL 440.3311(1) is that the claimant must obtain payment of the instrument. MCL 440.3311(l)(iii). The requirement was satisfied here because plaintiff negotiated defendants’ check by depositing it.
onee the first three requirements are satisfied, the question becomes whether the claim was discharged. Under the statute, there are two ways to discharge a claim. According to MCL 440.3311(2), a claim is discharged if the instrument, or an accompanying written communication, contains a conspicuous statement that the tender is in full satisfaction of the claim. Second, under MCL 440.3311(4), a claim is discharged if the claimant, or the claimant’s agent, knew that the defendant tendered the instrument in full satisfaction of the claim.
MCL 440.3311(4) controls this case. Plaintiff’s president testified that he knew defendants’ intention in sending the letter and check. He stated that defendants intended the check as a final payment. He claimed merely that he believed that defendants’ attempt to establish an accord did not satisfy Michigan law. Plaintiffs president consulted an attorney on this question, and counsel erroneously informed him that the accord would be valid only in Indiana, not in Michigan.
MCL 440.3311(4) contains no exception for a mistaken understanding of the law. It requires only that a claimant know “that the instrument was tendered in full satisfaction of the claim.” Plaintiff knew that defendants intended the payment to be final and in full satisfaction of the claim. Therefore, an accord and satisfaction exists, despite plaintiffs mistake of law.
Even if we did not find a discharge of the debt under MCL 440.3311(4), we would find one under MCL 440.3311(2). That subsection provides:
Unless subsection (3) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim. [MCL 440.3311(2).]
MCL 440.1201(10) defines “conspicuous”:
“Conspicuous”: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: non-negotiable bill of lading) is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. But in a telegram any stated term is “conspicuous”. Whether a term or clause is “conspicuous” or not is for decision by the court.
The Uniform Commercial Code comment further discusses the meaning of “conspicuous.” Comment 4 of MCL 440.3311 opines: “If the claimant can reasonably be expected to examine the check, almost any statement on the check should be noticed and is therefore conspicuous.”
In this case, defendants wrote the words “final payment” on the comment line of the check. They were in capital letters and not obfuscated in any way. They meet the definition of “conspicuous” because they were written so that someone would notice them. MCL 440.1201(10). Therefore, inclusion of “final payment” on the check satisfied the requirements of MCL 440.3311(2).
The letter sent with the check also contains a conspicuous statement that the check discharges the claim. Specifically, the letter provided:
If we send you a check for $5144.79 we will consider this account closed and will not expect discussion of the other * items. We will then expect the lein [sic] waiver to be sent. If this is not acceptable, we will have to resort to arbitration per attorney [sic].
This statement was the concluding paragraph, directly above the signature line. It was not placed in a footnote or other location that plaintiff might skip over while reading. Therefore, it too was a “conspicuous” statement that the check was tendered as full satisfaction of the claim, and that the claim was discharged.
Two exceptions to MCL 440.3311(2) exist in MCL 440.3311(3). Neither applies to this case. Defendants’ tender satisfied all the requirements of MCL 440.3311. Therefore, an accord and satisfaction occurred. Plaintiffs acceptance of the check discharged the claim.
CONCLUSION
We find that by enacting MCL 440.3311 of the Uniform Commercial Code, the Legislature intended to preempt the common law on accord and satisfactions in the area of negotiable instruments.
Therefore, the trial court erred in not applying the UCC to this case. The Legislature used clear language to describe in detail a course of conduct to pursue in order to accomplish an accord and satisfaction. It designated specific limitations and exceptions to the rule.
Applying MCL 440.3311, we find that defendants sufficiently met their burden of proof on the affirmative defense of accord and satisfaction. Therefore, we reverse the decision of the Court of Appeals and remand the case to the circuit court for entry of judgment in favor of defendants.
Reversed and remanded to the circuit court.
Taylor, C.J., and Cavanagh, Weaver, Corrigan, YOUNG, and MARKMAN, JJ., concurred with KELLY, J.
Originally, the residence belonged solely to Juanita Rems. Juanita married during the course of construction and added her husband, C. Ronald Hahn, to the title.
iphe “* items” refers to a list of disputed charges for changes made in the project.
MCR 2.111(F)(3) provides:
Affirmative Defenses. Affirmative defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting:
(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;
(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;
(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.
Black’s Law Dictionary (7th ed) provides a useful definition of “accord and satisfaction”:
An agreement to substitute for an existing debt some alternative form of discharging that debt, coupled with the actual discharge of the debt by the substituted performance. The new agreement is called the accord, and the discharge is called the satisfaction. [Emphasis in original.]
See Fritz, 404 Mich 329; Gitre, 387 Mich 619; Urben, 365 Mich 279; Hoey v Ross, 189 Mich 193; 155 NW 375 (1915); Stevens v Michigan Soap Works, 134 Mich 350; 96 NW 435 (1903); Cleveland v Rothschild, 132 Mich 625; 94 NW 184 (1903); Block v Crawford, 114 Mich 608; 72 NW 602 (1897); Mortlock v Williams, 76 Mich 568; 43 NW 592 (1889).
See Lehaney v New York Life Ins Co, 307 Mich 125; 11 NW2d 830 (1943); Eisenberg v CF Battenfeld Oil Co, 251 Mich 654; 232 NW 386 (1930); Deuches v Grand Rapids Brass Co, 240 Mich 266; 215 NW2d 392 (1927); Shaw, 239 Mich 194; Stone v Steil, 230 Mich 249; 202 NW 982 (1925).
MCL 440.3102 specifically provides:
(1) This article applies to negotiable instruments. It does not apply to money, to payment orders governed by article 4a, or to securities governed by article 8.
(2) If there is conflict between this article and article 4 or 9, articles 4 and 9 govern.
(3) Regulations of the board of governors of the federal reserve system and operating circulars of the federal reserve banks supersede any inconsistent provision of this article to the extent of the inconsistency.
“The expression of one thing is the exclusion of another.” Black’s Law Dictionary (7th ed), p 1635.
We note that this conclusion does not eliminate common-law accord and satisfactions entirely. An accord and satisfaction can exist without the use of a negotiable instrument. For instance, the parties could use cash or goods to satisfy a debt rather than a check. MCL 440.3311 would not apply in those situations.
The claim must be in dispute at the time of the accord. Contract principles apply to it. Fritz, 404 Mich 334. The unliquidated nature of the claim allows for consideration on both sides and a meeting of the minds. “[T]he compromise agreement of one party became the supporting consideration for that of the other.” Empire Industries, Inc v Northern Assurance Co, Ltd, 342 Mich 425, 430; 70 NW2d 769 (1955).
MCL 440.3311(3) contains two exceptions to MCL 440.3311(2). Neither is applicable here.
Plaintiff failed to note the existence of MCL 440.3311 even on appeal. Therefore, it argued that the tender must be so clear that it is not susceptible to any other interpretations. It argued that use of the word “expect” and reference to arbitration meant that the tender did not meet this mark.
We first note that, despite what the common law may state, MCL 440.3311 of the UCC contains no such requirement. Regardless, we find plaintiffs argument unconvincing. The statement contained in the letter specifically provides that the account will be closed and no further discussion will occur. Moreover, defendants state that they expect to receive the lien waiver from plaintiff. Plaintiff admits that hen waivers issue only after final payment. The reference to arbitration does not detract from this. Defendants were simply informing plaintiff what would happen if it chose not to accept the check. Any other reading of the reference to arbitration would violate common sense. Therefore, the statement in the letter was sufficient to inform plaintiff of the meaning of the tender. | [
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GRIFFIN, P.J.
Respondent Emmalee Schafer appeals as of right the circuit court’s order terminating her parental rights to the minor children, BZ and KZ, pursuant to MCL 712A.19b(3)(e) (failure to comply with court-structured guardianship plan, causing disruption of the parent-child relationship), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm if the child is returned to the parent’s home). We affirm.
i
The respondent first contends that the Kent Circuit Court referee erred when he denied her motion to transfer the termination proceedings involving her son KZ to the Isabella Circuit Court.
In November 2002, less than one week after KZ was born to the respondent and David Zimmerman in Grand Rapids, a petition was filed in the Kent Circuit Court by the Family Independence Agency (FIA) to place KZ in protective custody on the ground that the circumstances leading to the earlier filing of a neglect petition and the removal of the respondent’s two other children, BZ and his half-sister Sierra, had not been rectified, the parents had “made minimal to no progress toward their Family Plan goals,” and David Zimmerman had threatened to leave the state if authorities attempted to remove the infant. Following a preliminary hearing, KZ was placed in temporary custody with the FIA. Eventually, through the parties’ participation in the Kinship Program, the infant was placed with his paternal grandmother, petitioner Cheryl Edgar, in Isabella County. Under the program, the respondent and David Zimmerman consented to the filing of the petition, with the understanding that KZ would be placed in a relative’s home and that a guardianship would be established through the Family Group Decision-Making program at Bethany Christian Services. The respondent and Mr. Zimmerman agreed to satisfy certain goals set forth in a family plan (similar to a case service plan used in foster care cases), including parenting classes, psychological evaluations, housing, and visitation. Once the guardianship was formally established with the Edgars, the Kent County FIA requested the withdrawal of the previously authorized petition regarding KZ, and an order dismissing the petition “at the request of petitioner” was entered by the Kent Circuit Court in January 2003.
In August 2003, the respondent wrote to petitioners and expressed the desire to have the minor children returned to her care. Both letters also indicated that the respondent and David Zimmerman were no longer in a relationship. The petitioners, the Edgars and the Andersons, then filed separate supplemental petitions in the Kent Circuit Court, which were authorized by a referee, to terminate the parental rights of the respondent and David Zimmerman to the minor children, BZ and KZ, pursuant to MCL 712A.19b(3)(b)(i) and (ii), (e), (g), and (j).
In November 2003, the respondent filed a motion to transfer KZ’s case to the Isabella Circuit Court on the ground that, when the petitioners filed the supplemental termination petition, KZ had been residing with his guardians in Isabella County for almost a year. However, the referee denied the respondent’s motion and proceeded to the dispositional phase of the termination proceedings. Following the presentation of proofs, the referee concluded that grounds for termination had been proved by clear and convincing evidence under subsections e, g, and j and that termination of the respondent’s parental rights was not contrary to the best interests of the minor children.
On appeal, the respondent now argues that KZ had resided in Isabella County with his guardians for over ten months and continued to reside there at the time the termination petition was filed; thus, KZ clearly was not “found within [Kent] county” when the termination petition was filed, within the meaning of MCL 712A.2(b), so as to confer jurisdiction on the Kent Circuit Court. The respondent maintains that, although the termination petition makes reference to historical events in Kent County that led to the prior authorization of a protective services petition, the petition was later withdrawn and dismissed, and there are no such current allegations. Thus, according to the respondent, the circuit court referee abused his discretion in denying her motion to transfer KZ’s case to the Isabella Circuit Court. We disagree.
The resolution of this issue requires an analysis of both statutory language and court rule. Issues concerning family court procedure under the court rules present questions of law subject to review de novo. In re CR, 250 Mich App 185, 200; 646 NW2d 506 (2002).
Pursuant to MCL 712A.2(b), the family division of the circuit court has authority to assume jurisdiction in proceedings concerning a juvenile under eighteen years of age “found within the county.” MCR 3.926(A) states, “As used in MCL 712A.2, a child is ‘found within the county’ in which the offense against the child occurred ... or in which the minor is physically present.” (Emphasis added.) MCR 3.926(B) provides, in pertinent parts:
Transfer to County of Residence. When a minor is brought before the family division of the circuit court in a county other than that in which the minor resides, the court may transfer the case to the court in the county of residence before trial.
(1) If both parents reside in the same county, or if the child resides in the county with a parent who has been awarded legal custody, a guardian, a legal custodian, or the child’s sole legal parent, that county will be presumed to be the county of residence.
(2) In circumstances other than those enumerated in subsection (1) of this section, the court shall consider the following factors in determining the child’s county of residence:
(a) The county of residence of the parent or parents, guardian, or legal custodian.
(b) Whether the child has ever lived in the county, and, if so, for how long.
(c) Whether either parent has moved to another county since the inception of the case.
(d) Whether the child is subject to the prior continuing jurisdiction of another court.
*
(g) Any other factor the court considers relevant.
(3) If the child has been placed in a county by court order or by placement by a public or private agency, the child shall not be considered a resident of the county in which he or she has been placed, unless the child has been placed for the purpose of adoption. [Emphasis added.]
Here, the neglect petition and protective proceedings were initiated in Kent County when both parents and KZ were Kent County residents and where the alleged acts that formed the basis for the protective proceedings transpired. The Kent County FLA initiated the proceedings because the conditions leading to issuance of the earlier petition involving BZ and Sierra, including physical abuse, domestic violence, and neglect, had not been rectified and the safety of the newborn, KZ, in the respondent’s Kent County home, was at issue. Thus, KZ was “found within [Kent] county” within the meaning of MCL 712A.2(b), because Kent County was the county where “the offense against the child occurred.” MCR 3.926(A).
Moreover, as provided in MCR 3.926(B)(3), where “the child has been placed in a county by court order or by placement by a public or private agency, the child shall not be considered a resident of the county in which he or she has been placed ....” In this case, pursuant to the Kinship Program in Kent County, the respondent and David Zimmerman consented to the filing of the neglect petition and to the out-of-home placement of KZ with his paternal grandparents in Isabella County. Under such circumstances, where KZ was placed in Isabella County by a child welfare agency by court order, subsection B(3) applies and directly and expressly contradicts respondent’s argument that KZ was not “found within [Kent] county” for jurisdictional purposes.
In addition, the cases involving BZ and Sierra were being heard in Kent County, and BZ was in a guardianship with petitioners, the Andersons, in Kent County. Consequently, the witnesses and evidence were located in Kent County, and the issues and evidence in the cases were nearly identical. Kent and Isabella counties were cooperating to serve judicial economy and the convenience of the parties and witnesses. The trial court properly noted these factors in denying respondent’s motion to transfer the case to Isabella County. Applying the factors under MCR 3.926(B)(2) cited above, the same conclusion is reached. The court, therefore, did not abuse its discretion in denying the respondent’s motion to transfer the case involving KZ to Isabella County.
n
The respondent next contends that the circuit court referee clearly erred when he determined that sufficient evidence existed to find that the minor children came within the statutory requirements for the assertion of jurisdiction set forth in MCL 712A.2. The respondent’s argument that grounds for jurisdiction were neither demonstrated by a preponderance of the evidence nor applicable is based largely on the dismissal of the temporary custody petitions. The respondent notes that as a participant in the Kinship Program, she agreed to place the children in guardianships with paternal relatives, and that after the establishment of the guardian-ships and withdrawal of the neglect petitions, the respective guardians became “legally responsible” for the care and maintenance of the children, MCL 712A.2(b)(l)(B); therefore, subsections b(l) andb(2) do not serve as an adequate basis for the court to assume jurisdiction over BZ and KZ. In sum, the respondent maintains that, “The allegations of the previously dismissed petitions were resurrected [despite the establishment of guardianships] merely to provide an illusory statutory basis for assuming jurisdiction and, ultimately, termination of [respondent’s] parental rights.” We disagree.
To properly exercise jurisdiction, the trial court must find that a statutory basis for jurisdiction exists. In re PAP, 247 Mich App 148,152-153; 640 NW2d 880 (2001). Jurisdiction must be established by a preponderance of the evidence. MCR 5.972(C)(1); Ryan v Ryan, 260 Mich App 315, 342; 677 NW2d 899 (2004); In re Snyder, 223 Mich App 85, 88; 566 NW2d 18 (1997). We review the trial court’s decision to exercise jurisdiction for clear error in light of the court’s findings of fact, In re S R, 229 Mich App 310, 314; 581 NW2d 291 (1998).
Here, the petitions to terminate the respondent’s parental rights recited historical allegations and circumstances from the dismissed petitions and court proceedings under those petitions. Clearly, however, in the interim, the courts and agencies had been working with the respondent at length to achieve reunification; the problems that led to the wardships allegedly were not rectified, and the guardians documented the fact that the respondent was taking little interest in her children. The record indicates that, under the Kinship Program in Kent County, dismissal of an initial petition is customary once a guardianship is established and is functioning smoothly. The respondent was nonetheless still subject to the requirements of the family plan, and the preponderance of the evidence indicated that she neither substantially complied with nor completed the goals set forth in that plan. Moreover, the doctrine of anticipatory neglect would apply to these circumstances to confer jurisdiction over the minor children, on the basis of the earlier injuries to Sierra. In re Powers, 208 Mich App 582, 588-593; 528 NW2d 799 (1995). Jurisdiction was therefore appropriately predicated on MCL 712A.2(b)(l), (2), and (4), and the circuit court did not clearly err in determining by a preponderance of the evidence that the children came within the statutory requirements of MCL 712A.2.
ill
The respondent next argues that the circuit court erred in concluding that the statutory grounds for termination of parental rights were established by clear and convincing evidence. We disagree.
Termination of parental rights is appropriate where the petitioner proves by clear and convincing evidence at least one ground for termination. In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). Once this has occurred, the court shall terminate parental rights unless it finds that the termination is clearly not in the best interests of the children. Id. at 353; MCR 3.977(E)(3), (F)(1), or (G)(3). This Court reviews the lower court’s findings under the clearly erroneous standard. In re Sours Minors, 459 Mich 624, 633; 593 NW2d 520 (1999). A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court’s special opportunity to observe the witnesses. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989); In re Terry, 240 Mich App 14, 22; 610 NW2d 563 (2000).
Here, a review of the record of the termination hearing reinforces the correctness of the trial court’s conclusion that termination of respondent’s parental rights was warranted under MCL 712A.19b(3)(g) (failure to provide proper care and custody, with no reasonable expectation of such within a reasonable time). The family plan that was established for the respondent as part of the Kinship Program was admitted as an exhibit. It identified concerns, including lack of a stable environment, financial problems, “playful” behavior between the respondent and David Zimmerman viewed by the children and family as violent, and the respondent’s failure to interact with BZ in a stimulating way. The respondent’s “protection and safety steps” included visiting and interacting with BZ three times a week, taking a comprehensive series of parenting classes, obtaining a psychological evaluation and following its recommendations, having counseling to address depression, and obtaining new housing and financial stability.
Three quarterly reports and a summary from Bethany Christian Services and the Kinship Program were admitted into evidence as exhibits at the termination hearing. The first report, covering the period August 28 through November 28, 2002, noted, in pertinent part, that the respondent did not visit BZ regularly; when she did visit, she did not play or talk to him unless prompted. The respondent had seen KZ once, during the Thanksgiving holiday. Petitioner Cheryl Edgar reported that the respondent did not take the initiative to feed or change KZ’s diaper and did not verbally interact with him. Although the respondent underwent a psychological evaluation and attended counseling, the counselor indicated that it was difficult to be helpful when the respondent did not show much initiative.
The second quarterly report, covering the period November 28, 2002, through February 28, 2003, stated that respondent and David Zimmerman had been evicted from their new housing and then moved into separate residences. The respondent moved in with her mother and had only sporadic contact with her social worker. The respondent also did not see the minor children on a regular basis. The petitioners reported no improvement in the interactions between the respondent and her children. A Kinship Program representative had attempted to encourage more frequent and quality visits with KZ and to mediate tension between petitioner Colleen Anderson and the respondent, but the respondent was not receptive to these efforts. She had not attended the new set of parenting classes and had not continued with her counseling.
The third quarterly report covered the period from February 28 through May 28, 2003. The respondent had returned to Grand Rapids, where she was again living with David Zimmerman. She had not seen BZ or KZ regularly; over the past quarter, she saw KZ twice and BZ once. She had not inquired about BZ and the quality of the one visit was not improved. Because of a lack of consistency, the guardians were requesting twenty-four hour notice if the respondent intended to attend scheduled visits. The respondent continued to have problems in her interactions with BZ’s guardian, had not begun new parenting classes, and attended counseling only sporadically. The respondent had not contacted her social worker in four weeks. Although the respondent and Zimmerman had secured a new apartment and were up to date on their bills, overall, the social worker opined that the respondent was not meeting the goals of the family plan.
The case closure report covered the period through August 28, 2003. No significant improvements were noted. The respondent continued her employment through a temporary employment agency. The social worker had enrolled the respondent in a comprehensive parenting class for July, but the respondent had not attended any sessions. The respondent and Zimmerman continued to reside together until July 4, when she and her family said the relationship became physically abusive and she did not wish to expose her children to Mr. Zimmerman. Zimmerman gave a different story, stating that the respondent was seeing another man and had moved in with him. Previously, the respondent and Zimmerman had admitted hitting, pushing, and slapping each other during arguments. During this period, Zimmerman married a previous girlfriend who was the mother of his son.
For several weeks after she moved away from David Zimmerman, the respondent was unwilling to disclose her whereabouts to the social worker. At the closing session, she stated that she had been staying at the home of a co-worker and his parents, along with four other adults and one baby, in a six-bedroom home. Although the social worker did not tour the home, she opined that it was inappropriate for the respondent and her two children.
With regard to visitation, it was reported that there had been no improvement in the quality or quantity of visits with BZ. The respondent also was not consistent in visiting KZ. Consequently, petitioners discontinued the visits with the minor children in June and July 2003. Moreover, concerns persisted regarding the respondent’s mental health. There were reports of “unusual and angry behaviors” on the part of the respondent from her family members. As a result, the social worker referred the respondent for depression screening, but the respondent did not schedule an appointment for six weeks and then provided no confirmation that she had attended.
At the termination hearing, the social worker responsible for overseeing the respondent’s case testified that, while the respondent may have completed one or two of the goals of the family plan, most were not accomplished. The respondent’s housing was not stable; she had moved five or six times and now was staying with friends. Although this social worker and another social worker had met repeatedly with the respondent to go over the plan and provide her with community resources, the social worker testified that the respondent had failed to comply with their requests. In the social worker’s opinion, the respondent was no better able to provide a safe, stable, suitable home than when the children were taken into protective custody. The social worker opined that, on the basis of the respondent’s performance, there was no reasonable expectation that she could provide proper care within a reasonable time.
In light of the above evidence of record, we conclude that the trial court did not clearly err in finding that § 19b (3) (g) was established by clear and convincing evidence. In re Sours Minors, supra. Although respondent maintained employment and ultimately separated from her abusive boyfriend, she only minimally complied with the more important aspects of the family plan, including visitation with the children. See In re Trejo, supra at 346 n 3 (a parent’s failure to substantially comply with court-ordered treatment plans is indicative of neglect), and 360-363 (holding that the family court did not clearly err in finding that evidence of the respondent’s slow progress in counseling established the termination under subsection 19b[3][g]).
Further, we hold that the respondent failed to show that termination of her parental rights was clearly not in the best interests of the minor children. Once a statutory ground for termination is established by clear and convincing evidence, the trial court must terminate parental rights unless it finds from the whole record that termination clearly is not in the child’s best interests. MCL 712A.19b(5); Trejo, supra at 353. The trial court’s decision on the best interests question is reviewed for clear error. In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003); Trejo, supra at 356-357.
Here, the record clearly indicates that the respondent did not visit the children as specified in the family plan and had minimal meaningful contact with her sons, thus virtually precluding the development of any family bonds. Conversely, the case closure report indicated that all three children had flourished under the care of guardians. BZ had “returned to a normal track of development, given his deficiencies at the time of placement.” KZ had some delays in motor development, but was making progress with community services, and petitioners had expressed an interest in adopting both the minor children. Under these circumstances, we conclude that the court did not clearly err in determining that termination of the respondent’s parental rights was not contrary to the children’s best interests. MCL 712A.19b(5); In re Trejo, supra.
Affirmed.
David Zimmerman, the father of BZ and KZ, voluntarily relinquished his parental rights and is not a party to this appeal.
The petition filed in the Kent Circuit Court in August 2002 regarding Sierra and BZ alleged that Sierra had been physically abused by David Zimmerman, and that the respondent failed to timely seek appropriate medical treatment for Sierra, whose injuries had been determined by a physician not to be accidental. In addition, the petition alleged inappropriate discipline, domestic violence, and neglect. David Zimmerman was later convicted of third-degree child abuse stemming from the incident with Sierra. The respondent and David Zimmerman entered into a compact agreement with the Kinship Program regarding Sierra and BZ, and petitioners Colleen and Charles Anderson (BZ’s paternal great aunt and uncle) were appointed as BZ’s guardians, and Sierra was placed with her grandmother. Once the guardianships were established, an order dismissing the petition “at the request of petitioner” was entered by the court, and Sierra and BZ continued to live with their respective guardians under the Kinship Program. Termination of the respondent’s parental rights to Sierra was not requested; thus, Sierra is not involved in these proceedings.
Specifically, MCL 712A.2 states, in pertinent parts, that the court has the following authority and jurisdiction:
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship....
(B) “Without proper custody or guardianship” does not mean a parent has placed the juvenile with another person who is legally responsible for the care and maintenance of the juvenile and who is able to and does provide the juvenile with proper care and maintenance.
(2) Whose home or environment, by reason of neglect, cruelly, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.
(3) Whose parent has substantially failed, without good cause, to comply with a limited guardianship placement plan described in section 5205 of the estates and protected individuals code, 1998 PA 386, MCL 700.5205, regarding the juvenile.
(4) Whose parent has substantially failed, without good cause, to comply with a court-structured plan described in section 5207 or 5209 of the estates and protected individuals code, 1998 PA 386, MCL 700.5207 and 700.5209, regarding the juvenile. | [
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Kelly, J.
Defendant Roman Catholic Archbishop of the Archdiocese of Detroit appeals by leave granted the trial court’s order denying defendant’s motion for summary disposition under MCR 2.116(C)(7) in this case alleging sexual abuse by Robert Burkholder, a Roman Catholic priest. Defendant contends that the trial court erred in ruling that the applicable statutes of limitation did not bar plaintiff John Doe’s claims. We reverse because plaintiff has failed to state a claim for fraudulent concealment that would toll the statutes of limitation applicable to plaintiffs claims. While we are thoroughly sympathetic to the plight of sexual abuse victims, especially those victimized by Catholic priests, our courts are constrained to correctly apply statutes of limitation and their exceptions in every case. The statutes of limitation have expired in this case and plaintiff has not stated a fraudulent-concealment claim on which relief may be granted.
I. FACTS
In December 2002, plaintiff filed a complaint alleging that Burkholder sexually abused him from 1972 to 1976, when plaintiff served as an altar boy at the Immaculate Heart of Mary (IHM) parish in Detroit, Michigan. Plaintiff alleged that Burkholder used his position of religious authority to establish a relationship with plaintiff and his family. Plaintiff recalled that Burkholder sexually assaulted him approximately fifty times, including on day trips, in Burkholder’s vehicle, and on church grounds. Plaintiff later filed an amended complaint adding that Burkholder sexually abused him again in June 1983 in Hawaii. Plaintiff alleged that defendant was aware that Burkholder had previously abused other boys, but did nothing to prevent further abuse. Plaintiff alleged that, “It was not until October, 2002 and thereafter that John Doe was able to discover, or reasonably should have discovered, that Burkholder’s conduct was wrongful, that John Doe had suffered damage and injury as a result of that conduct, and/or that Burkholder’s conduct was a likely cause of John Doe’s damages and injuries.”
Plaintiffs complaint included claims of (1) clergy malpractice, (2) breach of fiduciary duty, (3) intentional infliction of emotional distress, (4) negligence, (5) vicarious liability, and (6) premises liability. In the negligence count, plaintiff alleged that defendant fraudulently concealed plaintiffs causes of action against defendant “by affirmatively misrepresenting Burkholder as a priest or spiritual counselor, fit to serve his duties in the Church, and by allowing him to continue to act as a Priest despite complaints made by other parishioners of sexual abuse.” Plaintiff further alleged:
69. The Archdiocese further concealed Burkholder’s sexual abuse activities by continuing to relocate him to different Churches within the community that had no knowledge of Burkholder’s behavior, as described herein.
70. By engaging in activities to conceal the sexual abuse activities of Burkholder, the Defendants impliedly or expressly condoned his behavior thereby supporting Burkholder’s explanations to Plaintiff that his sexual activities with Plaintiff were natural, approved of by God and the Church.
Defendant filed a motion for summary disposition arguing that the statutes of limitation barred plaintiffs claims. Responding to plaintiffs allegation that he did not discover his claims until he read about similar cases in October 2002, defendant submitted authority that the discovery rule cannot be applied to extend the time for bringing tort actions for alleged sexual abuse committed against plaintiffs when they were children. Defendant also argued that, on the facts of this case, the discovery rule did not extend the statutes of limitation. Burkholder concurred in the motion.
Plaintiff responded to the motion by arguing that there were questions of fact regarding whether his claims were barred when defendant fraudulently concealed them. Plaintiff argued, “It has only been within the last 12-18 months through widespread media coverage that it has become common knowledge that the catholic [sic] churches through[out] the country maintained a quiet and inconspicuous system of moving priests from parish to parish who had been found molesting children.” Plaintiff also argued that he
did not become aware of a cause of action against Defendants until October 2002. It was at this time that [he] was given an article about the criminal prosecution of Burkholder for molesting a boy and that he sought assistance in investigating a claim for the assaults he suffered at the hands of Burkholder. Through investigation, including research of this Court’s files, Plaintiff received information that the Archdiocese may have been told about Burkholder years before he met Plaintiff, but did nothing to stop him.
Plaintiff argued that there were questions of fact pertaining to the statutes of limitation, including what actions defendant took to conceal Burkholder’s actions, the reasons for Burkholder’s transfers, the complaints received by defendant about sexual abuse, and “the time that Plaintiff knew or should have known of the existence of a claim against [defendant] for its involvement in providing Burkholder access to children.” Plaintiff also argued that, although Burkholder was “finally asked to leave in 1993,” there were questions of fact regarding how public this action was and when defendant learned of Burkholder’s behavior.
Defendant filed a supplemental response arguing that plaintiffs claims were barred because, even though plaintiff did not know all the details of the evidence that would prove his claims against defendant, he knew or should have known that his causes of action against defendant existed. In support of this argument, defendant submitted portions of plaintiffs medical records demonstrating that plaintiff informed a nurse, a therapist, and a social worker in 2000 that he had been sexually abused by a priest and that he recalled the abuse when he was twenty-five years old.
At oral argument, plaintiff clarified that he did not maintain that he was unaware of Burkholder’s identity or the cause of action against Burkholder, but that defendant concealed plaintiffs causes of action against defendant. Specifically, plaintiff argued that he was unaware that defendant knew about Burkholder’s conduct and actually facilitated it by moving Burkholder from one parish to another while representing him as a religious authority.
The trial court entered a stipulated order dismissing plaintiffs claims against Burkholder. With regard to plaintiffs claims against defendant, the trial court denied defendant’s motion for summary disposition stating, “I think there is a question of fact whether the church knew of Burkholder’s activity, and when they knew it, et cetera.”
II. ANALYSIS
A. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a motion for summary disposition brought pursuant to MCR 2.116(C)(7). Rheaume v Vandenberg, 232 Mich App 417, 420-421; 591 NW2d 331 (1998). In reviewing the record to determine if defendant was entitled to judgment as a matter of law, we consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings in plaintiffs favor. Id. at 421. Absent a disputed question of fact, the determination whether a cause of action is barred by a statute of limitation is a question of law that this Court reviews de novo. Colbert v Conybeare Law Office, 239 Mich App 608, 613-614; 609 NW2d 208 (2000).
B. PLAINTIFF’S CLAIMS AND THE GENERALLY APPLICABLE STATUTES OF LIMITATION
Plaintiffs claims against defendant include intentional infliction of emotional distress and negligence (both ordinary and premises liability.) Intentional infliction of emotional distress and negligence are subject to a three-year statute of limitation. MCL 600.5805(10); Lemmerman v Fealk, 449 Mich 56, 63-64; 534 NW2d 695 (1995).
With regard to claims arising from alleged wrongs that occurred when plaintiff was under the age of majority, the statutes of limitation were tolled until one year from the time the disability of infancy was removed. MCL 600.5851(1). If plaintiff was born in 1965, he would have reached the age of majority in 1983. Accordingly, plaintiff had until 1984 to file these claims. The statutes of limitation were not tolled by MCL 600.5851(1) for claims arising from the alleged wrongs that occurred in Hawaii after plaintiffs eighteenth birthday. In any event, plaintiff concedes that the statutes of limitation should have run on all of his claims against defendant, but contends they were tolled because defendant fraudulently concealed plaintiffs causes of action against defendant. We disagree.
C. TOLLING OF THE STATUTES OF LIMITATION
i. DISCOVERY RULE
Plaintiffs complaint appears to implicate the discovery rule, which is commonly invoked in claims involving childhood sexual abuse. We conclude that the discovery rule has no application in this case.
The general accrual statute, MCL 600.5827, provides that “the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.” Stated another way, a plaintiffs cause of action for tortious injury accrues when all the elements of a cause of action have occurred and can be alleged in a proper complaint. Stephens v Dixon, 449 Mich 531, 539; 536 NW2d 755 (1995). But if an element of a cause of action, such as damage, has occurred, yet is for a time undiscoverable with reasonable diligence, Michigan courts have applied the discovery rule. Travelers Ins Co v Guardian Alarm Co of Michigan, 231 Mich App 473, 479-480; 586 NW2d 760 (1998). Under the discovery rule, the statute of limitation “begins to run when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered a possible cause of action.” Moll v Abbot Laboratories, 444 Mich 1, 5; 506 NW2d 816 (1993). “The discovery rule applies to the discovery of an injury, not to the discovery of a later realized consequence of the injury.” Id. at 18.
In his complaint, plaintiff alleged, “It was not until October, 2002 and thereafter that John Doe was able to discover, or reasonably should have discovered, that Burkholder’s conduct was wrongful, that John Doe had suffered damage and injury as a result of that conduct, and/or that Burkholder’s conduct was a likely cause of John Doe’s damages and injuries.” In this allegation, plaintiff appears to be invoking the discovery rule. But plaintiff explicitly disavows this allegation on appeal, stating:
Appellant strives mightily to obfuscate the issues by constantly focusing on when plaintiff knew or should have known he had a cause of action against Burkholder. No such issue is before the Court of Appeals; Burkholder was dismissed by stipulation precisely because plaintiff recognized that he knew long before suit was filed that Burkholder was a tortfeasor. .. . The issue on appeal concerns when plaintiff knew, or should have known, that the Archdiocese was itself tortiously culpable for its own actions with respect to both Burkholder and plaintiff.
Therefore, we conclude that plaintiff has abandoned any allegation or argument that the discovery rule should be applied to extend the statutes of limitation in this case.
Ü. FRAUDULENT CONCEALMENT
By and large, plaintiff argues on appeal that the statutes of limitation should be tolled because defendant engaged in fraudulent concealment of plaintiffs causes of action against defendant. Under the circumstances presented in this case, we disagree.
Before analyzing plaintiffs argument, it is important to note that plaintiffs complaint implicates defendant’s actions both before the alleged abuse and after. Plaintiff alleges that defendant’s action or inaction before the alleged abuse gives rise to causes of action against defendant for the abuse suffered. Plaintiff also alleges that defendant’s actions after the alleged abuse operated to conceal from plaintiff his causes of action against defendant. It is quite clear that only actions after the alleged injury could have concealed plaintiffs causes of action against defendant because actions taken before the alleged injury would not have been capable of concealing causes of action that did not yet exist. So, in focusing on the fraudulent-concealment claim, we focus on defendant’s alleged actions after the alleged abuse.
According to MCL 600.5805(1), “A person shall not bring or maintain an action to recover damages for injuries to persons or property unless .. . the action is commenced within the periods of time prescribed by this section.” The purposes of statutes of limitation are manifold:
Statutes of limitation are designed to encourage the rapid recovery of damages, to penalize plaintiffs who have not been assiduous in pursuing their claims, to afford security against stale demands when the circumstances would be unfavorable to a just examination and decision, to relieve defendants of the prolonged threat of litigation, to prevent plaintiffs from asserting fraudulent claims, and to remedy the general inconvenience resulting from delay in asserting a legal right that is practicable to assert. [Sills v Oakland Gen Hosp, 220 Mich App 303, 312; 559 NW2d 348 (1996), citing Lemmerman, supra at 65.]
The Legislature, however, has seen fit to create certain exceptions to statutes of limitation. One such exception is the fraudulent-concealment rule, found in MCL 600.5855, which provides:
If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.
As our courts have repeatedly stated, “ ‘Fraudulent concealment means employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts relied on must be of an affirmative character and fraudulent.’ ” Tonegatto v Budak, 112 Mich App 575, 583; 316 NW2d 262 (1982), quoting De Haan v Winter, 258 Mich 293, 296; 241 NW 923 (1932). “[T]he fraud must be manifested by an affirmative act or misrepresentation.” Witherspoon v Guilford, 203 Mich App 240, 248; 511 NW2d 720 (1994). Thus, “[t]he plaintiff must show that the defendant engaged in some arrangement or contrivance of an affirmative character designed to prevent subsequent discovery.” Id. “[T]here must be concealment by the defendant of the existence of a claim or the identity of a potential defendant,” McCluskey v Womack, 188 Mich App 465, 472; 470 NW2d 443 (1991), and the “plaintiff must plead in the complaint the acts or misrepresentations that comprised the fraudulent concealment.” Sills, supra at 310. “ ‘If there is a known cause of action there can be no fraudulent concealment which will interfere with the operation of the statute, and in this behalf a party will be held to know what he ought to know ....’” Weast v Duffie, 272 Mich 534, 539; 262 NW 401 (1935) (citation omitted).
For a plaintiff to be sufficiently apprised of a cause of action, a plaintiff need only be aware of a “possible cause of action.” Moll, supra at 23-24. Plaintiffs claims against defendant include negligence and intentional infliction of emotional distress. The elements of a negligence cause of action are (1) a duty, (2) breach of that duty, (3) causation, and (4) damages. Haliw v Sterling Hts, 464 Mich 297, 303-304; 627 NW2d 581 (2001). “The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.” Johnson v Wayne Co, 213 Mich App 143, 161; 540 NW2d 66 (1995).
The facts that plaintiff alleged in support of his claims were all facts that plaintiff knew or should have known at the time of his injury. In support of his negligence claim, plaintiff alleged that defendant failed to take steps to protect plaintiff, failed to “act with reasonable care and caution in hiring, training, investigating, and supervising Burkholder,” failed to adopt a policy to detect and prevent sexual abuse by priests, and failed to “otherwise act prudently and properly to avoid causing harm” to plaintiff. In support of his claim of premises liability, plaintiff alleged that defendant breached the duty of care by “failing to take reasonable steps to prevent Burkholder from having unlawful sexual contact” with plaintiff or warn plaintiffs parents about Burkholder’s activities. In support of his claims of intentional infliction of emotional distress, plaintiff alleged that defendant acted with reckless disregard and failed to exercise reasonable care to avoid the injury to plaintiff.
At issue here is whether plaintiff knew or should have known of his causes of action against defendant, not Burkholder. Yet plaintiff has failed to allege a claim of fraudulent concealment that avoids the applicable statutes of limitation because plaintiffs causes of action were not concealed from him, i.e., he knew or should have known all the essential elements of potential causes of action against defendant at the time of his injury. This is not so simply because plaintiff knew he was sexually abused by Burkholder. This is so because of the entire constellation of facts that were known or should have been known to plaintiff at the time the abuse occurred.
According to the facts alleged in plaintiffs amended complaint, it is clear that plaintiff knew, at the time of his injury, that Burkholder was an active priest at the IHM parish in the Archdiocese of Detroit. Plaintiff knew that Burkholder was employed by and under the direction and supervision of defendant. Plaintiff knew that defendant represented Burkholder as a fit priest and spiritual leader, which was inconsistent with what Burkholder actually was and plaintiff knew him to be: a child molester and sexual predator. Plaintiff also knew or should have known that the church property on which Burkholder abused him was owned by defendant. Further, plaintiff conceded in his complaint that Burkholder told him that Burkholder’s “sexual activities with Plaintiff were natural, approved of by God and the Church.” Under the circumstances alleged by plaintiff, it should have been clear to him that defendant either knew of Burkholder’s abuse or should have known about it. In either case, plaintiff should have known that a “possible cause of action” against defendant existed independently of his cause of action against Burkholder. Moll, supra at 23-24.
Moreover, the actions plaintiff alleged defendant took to conceal his causes of action do not constitute fraudulent concealment because they amount to mere silence. Sills, supra at 310. Plaintiff alleges that defendant fraudulently concealed plaintiffs causes of action against defendant by (1) representing Burkholder as a fit priest, (2) reassigning him to different parishes, and, more generally, (3) “engaging in activities to conceal the sexual abuse activities of Burkholder.” But none of these acts constitutes the “employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action.” Tonegatto, supra at 583. Rather, through these acts, defendant avoided disclosing Burkholder’s actions and defendant’s knowledge of them to the public at large. Plaintiff admits that defendant’s alleged acts amounted to mere silence in his brief on appeal, in which he describes defendant’s concealment as “omerta,” “a conspiracy of silence,” “suppression of truth,” and “lack of warnings.”
Furthermore, defendant’s failure to publicly disclose Burkholder’s actions or defendant’s knowledge of them did not in any way prevent plaintiff from knowing that he was abused by a Catholic priest who was under the supervision and control of defendant, that the sexual abuse took place on church property, that defendant failed to prevent Burkholder’s acts, or that plaintiff was harmed. Taking into account all the information available to plaintiff, we conclude that he knew, or through diligent inquiry should have known, of his possible causes of action against defendant. Therefore, on the basis of plaintiffs complaint alone, plaintiffs fraudulent-concealment claim fails.
The difficulty in this case arises from the failure to distinguish between plaintiffs knowledge of the evidence that could prove his claims and plaintiffs knowledge of the possible causes of action against defendant. The trial court ruled, “I think there is a question of fact whether the church knew of Burkholder’s activity, and when they knew it, et cetera.” This was erroneous because whether and when defendant knew of Burkholder’s abuse is irrelevant to the determination of whether plaintiff knew or should have known of his causes of action against defendant.
For a cause of action to accrue, the entire theory of the case need not be apparent, nor is certitude required:
“ ‘The fraudulent concealment which will postpone the operation of the statute must be the concealment of the fact that plaintiff has a cause of action. If there is a known cause of action there can be no fraudulent concealment which will interfere with the operation of the statute, and in this behalf a party will be held to know what he ought to know, pursuant to the rule hereinbefore stated (i.e., by the exercise of ordinary diligence).
“ ‘It is not necessary that a party should know the details of the evidence by which to establish his cause of action. It is enough that he knows that a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim.’ ” [Lemson v Gen Motors Corp, 66 Mich App 94, 97; 238 NW2d 414 (1975), quoting Weast, supra at 539 (emphasis added; citation omitted).]
Accordingly, even if plaintiff did not know for certain that defendant knew of Burkholder’s abuse of other children, defendant’s knowledge of Burkholder’s abuse of other children was not required for plaintiff to be aware of his causes of action against defendant. Rather, the extent of defendant’s knowledge of Burkholder’s abuse is evidence that could be used to prove plaintiffs claims of negligence and intentional infliction of emotional distress. See McCluskey, supra at 472.
Also problematic in this case is the failure to distinguish between plaintiffs knowledge of the “widespread sexual abuse plaguing the church” and his knowledge of his own causes of action against defendant. It was not necessary for plaintiff to know of widespread abuse in the church for him to have had knowledge of his causes of action against defendant. Thus, even if defendant attempted to conceal the “widespread sexual abuse” problem from the public at large, this attempt could not have concealed from plaintiff his causes of action against defendant. As discussed earlier, plaintiff knew or should have known the elements comprising his causes of action at the time of the abuse. This attempt to tie widespread abuse to the abuse alleged in one complaint could be simply due to an attempt to circumvent the applicable statutes of limitation or it may be due to a genuine, and somewhat understandable, misunderstanding of the nature of claims based on sexual abuse by priests. Many victims of abusive priests likely did not consider suing the church when a priest molested them. But this phenomenon appears less attributable to the church engaging in fraudulent concealment of widespread sexual abuse by priests than to a collective reluctance to initiate legal proceedings against an institution whose perceived role in society is one of spiritual and moral guidance.
This is evident in plaintiffs argument that he was unaware of his causes of action until he learned that other victims had initiated legal action against Burkholder and defendant. Plaintiff suggests that the only way that he otherwise would have discovered his possible cause of action against defendant was to reveal to others that he was sexually abused by a priest. But plaintiffs revelation to others that he was sexually abused has no logical connection with his learning of his causes of action against defendant. As discussed earlier, plaintiff need not have known with certainty that defendant knew of Burkholder’s actions or known of widespread sexual abuse in the church to be charged with knowledge of possible causes of action against defendant. Plaintiffs regrettable delay in filing his claims until he learned that other sexual abuse victims had taken legal action against Burkholder and defendant does not demonstrate that plaintiff could not have known of his causes of action against defendant; it simply demonstrates that plaintiff was unaware of the law. The fraudulent-concealment exception does not toll the statutes of limitation until a plaintiff becomes aware of the law.
Yet plaintiff argues that further discovery would uncover evidence that there was a church-wide conspiracy to address abusive priests internally and avoid outside involvement. Even this, if true, would not support plaintiffs claim of fraudulent concealment. Although addressing the problem internally, i.e., not publicly announcing the abuse or reporting the abusive priest to the appropriate authorities, may have implicated criminal activity, it did not operate to conceal from plaintiff his civil causes of action against defendant. Thus, to postpone accrual until plaintiff completed his investigation would not be authorized by existing law, nor would it coincide with the public policy underlying statutes of limitation, i.e., to encourage the prompt recovery of damages, penalize plaintiffs who were not diligent in pursuing their claims, afford security against stale claims, relieve defendants of the prolonged fear of litigation, prevent fraudulent claims, and remedy the inconvenience resulting from the delay of asserting legal rights. Sills, supra at 312.
III. CONCLUSION
While we recognize that priests and church leaders who perpetrated these crimes have committed wrongs for which there is and should be legal recourse, the civil claims, like all others, are subject to the statutes of limitation. The Legislature has created some exceptions to the general statutes of limitation, but it has yet to create an exception for victims of sexual abuse. Plaintiff and the amicus curiae urge us to essentially create such an exception in the guise of broadly reading MCL 600.5855. In reaching our conclusion, we do not construe MCL 600.5855, but apply its unambiguous terms and well-established case law. Further discovery regarding defendant’s attempted concealment or plaintiffs diligence is unnecessary because, under the circumstances of plaintiffs injury, plaintiff knew or should have known the essential elements of any possible cause of action against defendant at the time of the alleged abuse. Therefore, as a matter of law, plaintiff has failed to state a fraudulent-concealment claim that avoids the applicable statutes of limitation. Plaintiffs claims against defendant are time-barred and the trial court erred in denying defendant’s motion for summary disposition. Accordingly, we reverse and remand for entry of summary disposition in favor of defendant.
Reversed.
CAVANAGH, P.J., concurred.
Plaintiff also alleged vicarious liability, but concedes that the statute of limitation has expired on that claim. Plaintiff alleged clergy malpractice and breach of fiduciary duty as well, but Michigan does not recognize a claim of clergy malpractice or a fiduciary duty on the part of a religious organization. Teadt v Lutheran Church Missouri Synod, 237 Mich App 567, 578, 581; 603 NW2d 816 (1999).
We also note that plaintiff argues that, through his own investigation, he ultimately did discover that defendant “knew or should have known about Burkholder .. . but did nothing to stop him .If plaintiff was able to discover this through his own investigation, failure to timely discover it cannot be attributable to defendant.
Plaintiff also argues that, if there is a special duty, mere silence is enough to support a claim of fraudulent concealment. But, as noted previously, this Court has refused to recognize an independent action for breach of fiduciary duty brought by a member of a religious organization primarily because doing so requires courts to consider religious tenets. Teadt, supra at 579-580. | [
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PER CURIAM.
Plaintiff appeals by right the judgment of divorce. We vacate the custody award in the divorce judgment and remand.
I. FACTS
The parties in this case had an arranged marriage in Iran, and defendant gave birth to twin boys. The parties separated, and plaintiff filed for divorce. After the trial court issued several temporary orders regarding custody, it entered a consent order for binding arbitration. The arbitrator’s award granted the parties joint legal custody of the children, but gave defendant sole physical custody. The award further approved defendant’s change of domicile and ruled that defendant could remove the children to California, where she intended to live with her aunt and uncle. Plaintiff moved to vacate the arbitration award, and the trial court denied his motion. After two amendments of the arbitration order, the trial court issued the final judgment of divorce, awarding defendant sole physical custody and allowing her to remove the children to California.
II. REVIEW OF THE BEST INTERESTS OF THE CHILDREN FACTORS
Initially, plaintiff contends that the trial court erred in failing to independently consider the best interests of the children in this custody matter inasmuch as the trial court merely entered as its judgment the decision of the arbitrator without any independent consideration. Defendant concedes that this was error and acknowledges that a remand to the trial court is necessary.
The language of MCL 600.5080 clearly mandates that the trial court conduct a review of the arbitrator’s custody decision under the same framework provided in other statutes such as the Child Custody Act, MCL 722.21 et seq. Harvey v Harvey, 470 Mich 186, 191-193; 680 NW2d 835 (2004). Indeed, the Michigan Supreme Court has specifically stated that no matter what type of alternative dispute resolution is used by the parties, the Child Custody Act requires the trial court to independently determine what custodial placement is in the best interests of the children. Id. at 187. Because the trial court was required to review the best-interests factors regarding custody and erred in entering judgment before independently deciding the best interests of the children, we must vacate the custody order and remand to the trial court for a hearing de novo on the best interests of the children. Id. at 191-192.
III. PLAINTIFF’S MOTION TO VACATE THE ARBITRATION AWARD
Next, plaintiff argues that the trial court erred in declining to vacate the arbitration award. We review de novo a trial court’s decision on a motion to enforce, vacate, or modify an arbitration award. Tokar v Albery, 258 Mich App 350, 352; 671 NW2d 139 (2003).
A. ARBITRATOR’S AUTHORITY TO DECIDE CHANGE IN DOMICILE
Plaintiff first argues that the trial court should have vacated the award pursuant to MCL 600.5081(2)(c) (arbitrator exceeded his powers). Plaintiff claims that the arbitration agreement did not authorize the arbitrator to decide the change-in-domicile issue. The consent order for binding arbitration provided:
IT IS FURTHER ORDERED that the following issues shall be submitted to binding arbitration in lieu of trial by Court:
(A) Child custody and parenting time;
(B) Child support;
(C) Division of property, including tangible and intangible assets, and ancillary issues related thereto;
(D) Spousal support;
(E) Attorney fees, Arbitrator fees, and costs;
(F) Consideration of each party’s compliance with all Interim Orders;
(G) Any other issues properly raised by the parties which would otherwise be within the jurisdiction of the circuit court;
(H) Pre-trial motions, i.e., discovery, temporary orders, etc.
Defendant argues that the issue of change of domicile was covered under the catchall language of item G, and plaintiff argues that he never agreed to arbitrate the issue.
Arbitration is generally recognized as a matter of contract. Rowry v Univ of Michigan, 441 Mich 1, 10; 490 NW2d 305 (1992). Arbitration agreements are generally interpreted in the same manner as ordinary contracts. Amtower v William C Roney & Co (On Remand), 232 Mich App 226, 234; 590 NW2d 580 (1998). They must be enforced according to their terms to effectuate the intentions of the parties. Id.
Plaintiff contends that change of domicile is too important of an issue to fall within the catchall provision, but the consent order does not contain any restriction stating that the catchall language of item G only applies to minor issues. The consent order clearly states that the parties can raise any other issue. It does not state that the parties are limited to raising other minor issues. Because we must enforce the actual terms of the agreement as written, plaintiffs argument is without merit. Id.
B. AGREEMENT TO ARBITRATE CHANGE IN DOMICILE
Plaintiff also contends that he did not agree to arbitrate the issue and that the language of item G requires both parties to agree to arbitrate an issue. However, the record does not support plaintiffs contention. No written agreement exists regarding arbitrating this issue, but plaintiff admits that the parties discussed it with the arbitrator before arbitration and that defendant sent him a letter stating that the issue was going to be arbitrated. There is no indication that plaintiff responded to this letter with any objection to arbitrating this issue, and the record contains no evidence that plaintiff raised such an objection before the arbitrator. Moreover, it is clear that plaintiff testified regarding change of domicile before the arbitrator. He presented his own argument, specifically discussing the lack of contact that defendant’s uncle had with the children and the presence of plaintiffs own family members in Michigan. Plaintiff did not raise any objection to arbitration until long after the arbitrator issued his opinion supporting the change of domicile. Given the lack of objection on the record and plaintiffs testimony before the arbitrator, we conclude that plaintiff agreed to arbitrate the issue.
C. ARBITRATOR BIAS
Plaintiff next argues that the trial court erred in denying his motion to vacate the arbitration award pursuant to MCL 600.5081(2)(b). He claims that the arbitrator demonstrated bias against Middle Eastern men and bias against him personally by allowing defendant to file a late motion to amend the arbitration award. The specific language that plaintiff refers to is contained in the arbitration award’s discussion of the best-interests factor found in MCL 722.23(j), the willingness of the parties to foster a relationship between the children and the other parent. The arbitrator stated:
With regard tq plaintiff, the arbitratcr is convinced that he will take no positive action to create or maintain a good relationship between the minor children and defendant. His testimony reflects antagonism, an aura of male dominance as is historic in European or Middle Eastern cultures, and plaintiffs general laizze-faire [sic] attitude toward his obligations, in general, and to defendant in particular.
Any negative mention of a traditional aspect of a culture or ethnicity raises a flag of concern with us. A closer review of the statement, however, demonstrates that there is no stereotypical meaning. The arbitrator seems to be stating that plaintiff, as a particular person, was antagonistic towards defendant and apparently women in general. He appears to be stating that plain tiff demonstrated a belief in male dominance that is consistent with the historic prevalence of patriarchal social structures. Although the choice of wording is questionable, the comment does not give us the impression of true bias. While we must be cognizant of ethnic stereotyping, we cannot let our caution blind us to actual historic tradition. After a thorough reading of the quote, we conclude that plaintiffs claim is without merit.
This Court has not extensively dealt with MCL 600.5081(2)(b), but it is nearly identical to the language of MCR 3.602(J)(l)(b), which deals with vacating arbitration awards in general. This Court has stated that the partiality or bias that would allow us to overturn an arbitration award “must be certain and direct, not remote, uncertain or speculative.” Belen v Allstate Ins Co, 173 Mich App 641, 645; 434 NW2d 203 (1988). Given that MCL 600.5081(2)(b) uses the same language as MCR 3.602(J)(l)(b), we apply the same standard, and it is clear that the trial court did not err in refusing to vacate the award. At most, the comment leaves one with a vague impression of possible bias or prejudice. There is no concrete indication of bias, and any attempt to demonstrate bias would be mere speculation. Because this is insufficient to allow a court to vacate an arbitration award, we conclude that the trial court did not err in denying plaintiffs motion. Belen, supra.
Plaintiff also challenges the fact that the arbitrator accepted from defendant a late motion to amend the arbitration award. This fact does not demonstrate the certain and direct partiality needed to overturn the award, and there is no indication that the arbitrator failed to accept a similarly situated motion from plaintiff. This is not a situation in which both parties attempted to file a late motion and the arbitrator accepted only defendant’s motion. Therefore, the fact that the arbitrator accepted a slightly late filing does not indicate partiality, and it certainly does not indicate the concrete partiality necessary to vacate the arbitration award. Id. at 645. Therefore, the trial court did not err in denying plaintiffs motion to vacate the award.
IV AUTOMATIC STAY
Next, plaintiff contends that the trial court erred in entering an order allowing defendant to remove the children from the state before entering the final judgment of divorce. Plaintiff asserts that he should have received an automatic stay following entry of the order allowing defendant to remove the children from the state. Although we agree with plaintiffs argument, this issue is moot because we are vacating the custody award in the judgment of divorce and remanding. Furthermore, this issue is moot because of the substantial amount of time that has passed beyond the twenty-one days of the potential stay. Loyd v Loyd, 182 Mich App 769, 783; 452 NW2d 910 (1990).
V REMAND BEFORE DIFFERENT JUDGE
Finally, plaintiff requests that we remand to a different trial judge. The general concern when deciding whether to remand to a different trial judge is whether the appearance of justice will be better served if another judge presides over the case. Sparks v Sparks, 440 Mich 141, 163; 485 NW2d 893 (1992). We may remand to a different judge if the original judge would have difficulty in putting aside previously expressed views or findings, if reassignment is advisable to preserve the appearance of justice, and if reassignment will not entail excessive waste or duplication. Feaheny v Caldwell, 175 Mich App 291, 309-310; 437 NW2d 358 (1989).
Much of plaintiffs argument concerns the fact that the trial court allowed defendant to remove the children from the state. Plaintiff argues that the court demonstrated bias in making this ruling and in not granting him an automatic stay following the ruling. However, we will not remand to a different judge merely because the judge came to the wrong legal conclusion. Repeated rulings against a party, no matter how erroneous, or vigorously or consistently expressed, are not disqualifying. Wayne Co Prosecutor v Parole Bd, 210 Mich App 148, 155; 532 NW2d 899 (1995). Rather, plaintiff must demonstrate that the judge would be unable to rule fairly on remand given his past comments or expressed views. Nothing in the record supports a finding that the trial judge could not put his previous rulings out of his mind. Moreover, the trial judge did not make any comments on the record indicating any expressed bias. Therefore, plaintiff has not met the standard required to remand to a different judge. Feaheny, supra.
Custody order vacated and case remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
MCL 600.5081(2)(b) provides that, if a party applies under that section, the court shall vacate an award if there “was evident partiality by an arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing a party’s rights.” MCR 3.602(J)(l)(b) similarly provides that, on application of a party, the court shall vacate an award if “there was evident partiality by an arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing a party’s rights!.]” | [
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OWENS, J.
Respondent Lisa Marie Sayers-Gazella (respondent) appeals as of right the trial court’s order of November 29, 2003, which allowed the previously suspended order of June 5, 2003, terminating her parental rights to her two infant children pursuant to MCL 712A.19b(3)(l) and (m) to go into effect. She challenges the trial court’s implementation of its prior order terminating her parental rights in spite of her substantial compliance with the Adrianson agreement. She also challenges the trial court’s initial assumption of jurisdiction over the minor children. We affirm.
The minor twin children, Justin Gazella and Paige Gazella, were born March 22, 2003. A petition seeking initial jurisdiction of the children and termination of both parents’ rights was authorized for filing at a preliminary hearing held three days later. The petition alleged, in part, that respondent’s parental rights to a half-sibling of the twins were terminated on May 16, 2000, in Genesee County for abandonment following a 1998 petition for child neglect, and that on October 30, 2000, respondent’s parental rights to a full-sibling of the twins were terminated in Saginaw County by voluntary release following initiation of child neglect proceedings. The petition, as amended, further alleged that respondent was borderline functioning and had a history of being unable to provide a stable residence. Finally, the petition alleged that respondent did not follow through with individual and marital therapy, parent training, and parent-mentoring services. At an adjourned pretrial hearing on May 30, 2003, following a careful explanation by the trial court of respondent’s rights and the potential consequences of her plea, respondent admitted the facts alleged in the amended petition. Respondent understood that her admissions would permit the court to find that the children came within the jurisdiction of the court and that statutory-grounds for termination of her parental rights existed. The court then found, on the basis of the doctrine of anticipatory neglect, that the children came within the jurisdiction of the court. The court further found, on the basis of respondent’s admissions, that grounds existed to terminate respondent’s parental rights under MCL 712A.19b(3)(l) and (m). No evidence was offered that termination would clearly not be in the children’s best interests and the court made no such finding. Immediately following the plea, the court conducted the dispositional hearing.
Following the combined pretrial/adjudication/dispositional/termination hearing, the court entered two orders. The first, an order of disposition, stated that an adjudication had been held and the children came within the jurisdiction of the court. It further ordered out-of-home placement for the children. The order required respondent to comply with the case service plan dated April 25, 2003, as modified at the hearing. The second order terminated the parental rights of respondent and, pursuant to the Adrianson agreement, suspended the effect of the termination order contingent on respondent’s compliance with all conditions of the case service plan.
Review hearings were held on September 2, 2003, and November 20, 2003, to assess respondent’s progress. At the end of the November 20, 2003, hearing, the court found that, to a substantial degree, respondent was in compliance with the case service plan. However, in spite of respondent’s substantial compliance, the court found that her prognosis was poor to fair, that the children should not be returned to her, that she had not been honest with the caseworker, and that, notwithstanding substantial compliance with the case service plan, it was highly questionable whether she could care for the children unaided at any reasonable time in the foreseeable future given her lack of improvement. The court entered an order permitting the order terminating respondent’s parental rights to go into effect. Respondent then filed this appeal.
We review for clear error the trial court’s findings on appeal of an order terminating parental rights.* A trial court’s decision to terminate parental rights is clearly erroneous if, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake had been made. Respondent argues that the trial court erred in permitting the order terminating her parental rights to go into effect since she had completely complied with the terms of the Adrianson agreement. We disagree.
We must first examine the nature of an Adrianson agreement, or Adrianson order, and determine its current viability in light of MCL 712A.19b(5), which provides:
If the court finds that there are grounds for termination of parental rights, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made, unless the court finds that termination of parental rights to the child is clearly not in the child’s best interests.[ ]
Before the enactment of MCL 712A.19b(5), many courts hearing termination of parental rights cases utilized the technique approved by this Court in Adrianson to give parents one last chance to avoid termination of their parental rights to their children, without imposing on the petitioner (usually the state) the burden of proving its termination petition again following the additional time given to the parents for rehabilitation. In an Adrianson proceeding, the trial court would enter an order terminating the parents’ rights following the necessary statutory findings. The court would then enter a further order suspending the order terminating the parents’ rights on condition that the parents comply with certain requirements designed to assist their rehabilitation. If the parents were successful, the order terminating their rights would be set aside and never take effect. However, should the parents not be successful, the order terminating rights would be permitted to go into effect.
In an Adrianson proceeding, once an order terminating parental rights was entered, the petitioner need prove nothing further; the burden of proof shifted to the parents to show that they had successfully complied with the conditions under which the order terminating their parental rights was suspended. However beneficial to parents Adrianson orders may have been, we hold today that their use violates both the statute and the court rule. The statute and the court rule are clear: once the court finds there are statutory grounds for termination of parental rights, the court must order termination of parental rights and must further order that “additional efforts for reunification of the child with the parent not be made,” unless the court finds that termination of parental rights to the child is clearly not in the child’s best interests. In entering an Adrianson order, the trial court ordered that additional efforts for reunification of the child with the parent were to be made. This is clearly no longer permissible under the statute and the court rule. Once the statutory grounds for termination have been proven (unless the court finds that termination of parental rights to the child is clearly not in the child’s best interests), the court must terminate parental rights immediately. An Adrianson order cannot be entered.
In this case, an Adrianson order was entered by agreement of the parties. Because such an order was not lawful, and because respondent gave up her right to a contested hearing on the request to terminate her parental rights, we must consider whether she would be entitled to have the order terminating her parental rights set aside since she would likely never have agreed to it but for the Adrianson order. We hold that it need not be set aside because respondent benefited from the erroneous opportunity she was given to comply with the case service plan and establish that she could be a non-neglectful parent. This is especially true because, in this case, the grounds for terminating respondent’s parental rights under MCL 712A.19b(3)(l) and (m) were a matter of court record and therefore uncontestable. In other words, she could only lose on the statutory grounds. The Adrianson order gave her a chance to avoid termination. It is true that, had no Adrianson order been entered, and had a contested hearing been held on the issue of termination, respondent could have avoided termination if the court found that termination was clearly not in the children’s best interests. While that is possible in some cases, it was extremely unlikely in this case because, when the petition seeking termination of parental rights was filed, the children were only two days old and had never established a relationship or emotional bond with respondent. On the basis of the record, it does not appear that respondent could have established by clear and convincing evidence that termination of her parental rights was clearly not in the children’s best interests, especially given the history of her relationship with her other children. Therefore, while we hold that the technique approved by this Court in Adrianson is no longer statutorily permissible, and that its use was therefore error, we determine that the error was clearly harmless with respect to respondent.
Given our determination that use of an Adrianson order was harmless error with respect to respondent, we next turn to whether the trial court erred in its implementation of the Adrianson order. By its terms, the Adrianson order provided that “[t]ermination is hereby suspended contingent upon mother’s compliance with all conditions of the service plan.” Respondent argues that she completely complied with all conditions of the service plan and, therefore, the trial court erred in finding that the order of termination should be permitted to go into effect.
We conclude that when the trial court found that respondent was in compliance with the case service plan to a substantial degree, the trial court was speaking of her physical compliance and not whether there was a significant improvement in her ability to parent. The court found that she maintained a stable residence, she was prompt for visitations with the children, and that she engaged in counseling. However, in spite of her physical compliance with the requirements of the plan, the court found that her prognosis was poor to fair.
It is true that the Adrianson order only required “mother’s compliance with all conditions of the service plan.” “Compliance” could be interpreted as merely going through the motions physically; showing up for and sitting through counseling sessions, for example. However, it is not enough to merely go through the motions; a parent must benefit from the services offered so that he or she can improve parenting skills to the point where the children would no longer be at risk in the parent’s custody. In other words, it is necessary, but not sufficient, to physically comply with the terms of a parent/agency agreement or case service plan. For example, attending parenting classes, but learning nothing from them and, therefore, not changing one’s harmful parenting behaviors, is of no benefit to the parent or child.
It could be argued that a parent complied with a case service plan that merely required attending parenting classes but was silent concerning the need for the parent to benefit from them. It is our opinion that such an interpretation would violate common sense and the spirit of the juvenile code, which is to protect children and rehabilitate parents whenever possible so that the parents will be able to provide a home for their children that is free of neglect or abuse. In this case, the trial court recognized that benefiting from services, in addition to complying with the requirement to participate in those services, was necessary when, in the order implementing the order terminating respondent’s parental rights, the trial court found that
[i]implementation of the order [terminating parental rights] was suspended pending compliance with conditions and improvement in the situation .... [Emphasis supplied.]
While it would undoubtedly have been clearer if, in the order of disposition, the trial court had ordered respondent to both comply with and benefit from the services offered in the case service plan, we find that the failure to specify that she must benefit from the services was not error because benefiting from the services was an inherent and necessary part of compliance with the case service plan. Therefore, while in this case respondent substantially complied with the case service plan in that she physically did what was asked of her, she did not sufficiently benefit from the services offered to enable the court to find that she could provide a home for her children in which they would no longer be at risk of harm. Therefore, we find no error.
While not raised by respondent, we note that the trial court stated the following on the record, after finding that grounds for termination of respondent’s parental rights existed pursuant to her plea:
Now obviously I have not made findings on best interest because by stipulation any order terminating her parental rights will be suspended to determine whether she is able to and does comply with conditions that may be set.
From this statement, it could be argued that the termination order was entered in error because the court had not made findings on best interests. We note, however, that a court speaks through its written orders and that, in entering the order terminating parental rights, the court necessarily found that statutory grounds for termination existed and could not have found that termination of parental rights was clearly not in the best interests of the children. Neither the statute nor the court rule requires the court to make specific findings on the question of best interests, although trial courts usually do. In fact, most trial courts go beyond the question whether termination is clearly not in a child’s best interests and affirmatively find that termination is in a child’s best interests. Such a finding is not re quired, but is permissible if the evidence justifies it. The statute and the court rule provide that, once a statutory ground for termination has been established by the requisite standard of proof, the court must enter an order of termination unless the court finds that termination is clearly not in the child’s best interests. If the court makes no finding regarding best interests, then the court has not found that termination would clearly not be in the child’s best interests. While it would be best for trial courts to make a finding that there was insufficient evidence that termination was clearly not in a child’s best interest, it is not required if no party offers such evidence, as here. For a valid termination order to be entered when no evidence is offered that termination is clearly not in the child’s best interests, all that is required is that at least one statutory ground for termination be proved. If such evidence is offered by a party, the court must rule on its sufficiency. Of course, if no party presents best-interests evidence, but the court finds evidence in the record that convinces the court that termination would clearly not be in the child’s best interests, the court must place that finding on the record.
Therefore, while the trial court did not make findings on best interests when the termination order was entered, this was not error since no evidence on that issue was offered. The termination order must be entered unless the court finds, by clear and convincing evidence, that termination would not be in the child’s best interests, which did not happen here. The parties must be given an opportunity to present evidence on the question of best interests in a contested hearing, but, if no one does, no finding is required by the court.
In summary, while it was error for the court to utilize an Adrianson order delaying the effect of the order terminating parental rights, the respondent benefited from the court’s error in that she was given an opportunity she would not otherwise have had to preserve her parental rights, especially given the clear and incontrovertible evidence that statutory grounds existed to terminate her parental rights. A litigant may not harbor error, to which he or she consented, as an appellate parachute. In this case, respondent benefited from the error; she may not now be heard to complain.
Next, respondent asserts as error the trial court’s failure to state the statutory grounds under which the court took jurisdiction of the children pursuant to her plea. However, this alleged error is mentioned only in the statement of issues and is not discussed further. No authority is cited to support it. Hence, it is abandoned.* Nevertheless, we will consider it. The trial court did state the statutory grounds for jurisdiction. In finding that the children came within the jurisdiction of the court on the basis of anticipatory neglect, the trial court used the statutory terms “abandonment” and “neglect” and found that the children were at risk to their physical safety if they were placed in the custody of respondent. In addition, we note that whether the court stated the statutory grounds under which jurisdiction was taken is an issue concerning the court’s exercise of its jurisdiction rather than an issue concerning whether the petition sufficiently alleged facts that, if true, would enable the court to find jurisdiction. Matters affecting the court’s exercise of its jurisdiction may be challenged only on direct appeal of the jurisdictional decision, not by collateral attack in a subsequent appeal of an order terminating parental rights. As noted earlier, the original order of disposition entered June 2, 2003, and filed June 5, 2003, stated that an adjudication was held, that the children were found to come within the jurisdiction of the court, and that they were placed in out-of-home care. That is the order that was appealable as of right to challenge the adjudication. By not appealing that order, respondent lost her right to challenge the court’s exercise of jurisdiction.
Finally, respondent challenges the court’s assumption of original jurisdiction over her minor children on the ground that the petition was insufficient on its face and therefore the proceedings were void ab initio.
As noted earlier, a court’s exercise of its jurisdiction may only be challenged on direct appeal, whereas the lack of subject-matter jurisdiction may be collaterally attacked. Respondent argues that the petition was insufficient on its face because it contained no allegation that the children had been harmed. Specifically, respondent argues that “[p]ast conduct is not a statutory ground for asserting jurisdiction, there must be some current physical harm or threat of serious emotional harm.” Because the petition alleged no current harm to the children, but instead anticipated future neglect of the children under the LaFleurlDittrick doctrine of anticipatory neglect, respondent asserts that the petition was insufficient on its face and the trial court lacked jurisdiction. We disagree.
A child may come within the jurisdiction of the court solely on the basis of a parent’s treatment of another child. Abuse or neglect of the second child is not a prerequisite for jurisdiction of that child and appliea tion of the doctrine of anticipatory neglect. As stated in In re Dittrich, supra at 222:
Defendants attempt to distinguish LaFleur by arguing that it only permits a finding of anticipated future neglect of a second child where a finding of past neglect of the second child has already heen made. We reject that distinction because we believe that the reasoning of LaFleur is sound, even when applied to a situation where no prior determination of neglect has been made.
In In re Powers, the child was born two days before the petition for jurisdiction was filed. The petition was based solely on the treatment of another child. In answering the appellant’s challenge to the probate court’s jurisdiction over the child based solely on the treatment of another child, this Court held:
Consistent with Dittrick, we find that the principle of anticipatory neglect (or, in this case, anticipatory abuse) may provide an appropriate basis for invoking probate court jurisdiction. [In re Powers, supra at 589.]
Therefore, we find that the petition was not insufficient on its face and the proceedings were not void ab initio just because the petition alleged no past mistreatment of the infant children. The doctrine of anticipatory neglect alone was a sufficient basis for the court’s jurisdiction over the children.
Affirmed.
Respondent-father Bryce Gazella voluntarily released his rights to the two minor children under the Michigan Adoption Code, MCL 710.21 et seq., on December 1, 2003, and is not a party to this appeal.
In re Adrianson, 105 Mich App 300; 306 NW2d 487 (1981).
In re Dittrick, 80 Mich App 219; 263 NW2d 37 (1977); In re LeFlure, 48 Mich App 377; 210 NW2d 482 (1973).
It is this order that would have been appealable as a matter of right had respondent wished to challenge the court’s finding that the children came within the jurisdiction of the court.
MOR 3.977CJ); In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000).
In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
See also MCE 3.977(E)(3), (F)(1), (G)(3).
In re Adrianson, supra at 319.
MCL 712A.19M5); MCE 3.977(E), (F)(1), and (G)(3).
Marshall Lasser, PC v George, 252 Mich App 104, 109; 651 NW2d 158 (2002).
Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).
In re Powers, 208 Mich App 582, 587-588; 528 NW2d 799 (1995), citing In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993).
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MURPHY, P.J.
Flaintiff Elizabeth Kenny appeals as of right the trial court’s order granting defendant Kaatz Funeral Home, Inc., summary disposition pursuant to MCR 2.116(0(10) in this premises liability action involving a slip and fall on snow-covered ice in defendant’s parking lot. We reverse.
In December 2001, plaintiff, who was seventy-eight years old at the time, and four companions drove to defendant’s funeral home to attend a coworker’s funeral. After plaintiff left the car and while she was walking near the rear of the car in the funeral home parking lot, she slipped and fell, fracturing her hip. The following pertinent excerpts come from the transcript of plaintiffs deposition:
Q. When you got into the parking lot at I guess 6:30 or quarter to 7:00 was it light, dark, do you remember?
A. Dark, dark.
Q. And the parking lot. I assume you said it was snowing. I assume you couldn’t see the lines on the—
A. It was just like — it wasn’t real bad. It was just like a snowflake then, a dusting on the road ....
Q. When you pulled into the parking lot, could you see the yellow line?
A. You couldn’t see any line at all, no.
Q. And why is that?
A. Because it was covered with snow.
Q. Could you see any pavement at all or was it all snow covered?
A. Snow covered.
Q. When you were walking or after you fell did you notice how thick the snow was, how deep it was?
A. It was snow covered. Then it was ice. It was black ice. You couldn’t see the ice there. [Plaintiff subsequently indicated that the snow was at least one inch deep.]
Q. And I’m sure you’ve seen many, many snowfalls over your years, right?
A. Yeah.
Q. And I assume you’ve walked through the snow a number of times; is that correct?
A. Yeah. I used to walk waist deep.
Q. And you’re aware that snow can be slippery; is that correct?
A. The snow wasn’t slippery. The ice was underneath it.
Q. So it’s your claim that the ice you slipped on was covered by snow; is that correct?
A. Yes, it was.
Q. Could you see the ice?
A. Not until I fell.
A. Not until after I fell.
Q. After you fell did you see the ice?
A. Yes, because the snow was — where my body was it was all pushed aside.
Q. Well, what did you see? Describe it for me.
A. It was like a black ice. It was the color of the — the color of the pavement.
*
Q. You indicated it was dark out at the time of the fall?
A. Yes.
Q. Did that make it harder to see?
A. Yes.
Richard Kaatz, defendant’s president and primary shareholder, testified in his deposition that it had snowed earlier in the day on the date of the accident, stopped for a while, and then resumed snowing in the evening. He indicated that it was dark around 5:00 p.m. during that time of the year. Kaatz arrived at the funeral home around 5:00 p.m., and he observed that snow had covered the parking lot. He did not believe that it had snowed the previous two or three days.
Defendant moved for summary disposition, arguing that it had neither actual nor constructive notice of the allegedly dangerous condition and, at the same time, argued that the condition of the parking lot was open and obvious and not unreasonably dangerous. The trial court granted the motion for summary disposition, finding that defendant had no notice of the alleged hazard, that no genuine issue of material fact existed with respect to whether the condition of the parking lot was open and obvious, and that no genuine issue of material fact existed in regard to whether any special aspects made the condition unreasonably dangerous, in spite of its open and obvious condition. The trial court, in relation to the open and obvious danger analysis, relied on the fact that plaintiff had testified in her deposition that before her fall, she saw others get out of the vehicle and hang onto the car. The court also relied on plaintiffs testimony that she had lived in Michigan all her life and had witnessed many snowfalls. The trial court noted that, “[a]s a lifelong resident of Michigan, she should have been aware that ice frequently forms beneath snow during snowy December nights.”
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Koenig v South Haven, 460 Mich 667, 674; 597 NW2d 99 (1999) (opinion by TAYLOR, J.). Issues of law are also reviewed de novo. Mahaffey v Attorney General, 222 Mich App 325, 334; 564 NW2d 104 (1997).
MCR 2.116(0(10) provides for summary disposition where there is no genuine issue as to any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. “A trial court may grant a motion for summary disposition under MCR 2.116(0(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law.” Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). In addition, all affidavits, pleadings, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties are viewed in a light most favorable to the party opposing the motion. “Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in the pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists.” Id. Where the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. Id. at 363. “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) (citations omitted).
A premises owner owes, in general, a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). This duty, however, does not generally encompass removal of open and obvious dangers. Id. Where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, the invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee. Id., quoting Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). Whether a particular danger is open and obvious depends on whether it is reasonable to expect an average user of ordinary intelligence to discover the danger upon casual inspection. Eason v Coggins Mem Christian Methodist Episcopal Church, 210 Mich App 261, 264; 532 NW2d 882 (1995). In determining whether an alleged dangerous condition is open and obvious, the focus is on the characteristics of a reasonably prudent person. Mann v Shusteric Enterprises, Inc, 470 Mich 320, 329 n 10; 683 NW2d 573 (2004). Because the test is objective, courts look not to whether a particular plaintiff should have known that the condition was hazardous, but to whether a reasonable person in his position would foresee the danger. Joyce v Rubin, 249 Mich App 231, 238-239; 642 NW2d 360 (2002). “In sum, the general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.” Lugo, supra at 517. Only those special aspects that create a uniquely high likelihood of harm or severity of harm if the risk or hazard is not avoided will serve to remove that condition from the open and obvious danger doctrine. Id. at 518-519.
Our Supreme Court in Mann recently addressed the matter of snow and ice accumulation in the context of the open and obvious danger doctrine. The Court ruled:
Under Lugo, a premises possessor must protect an invitee against an “open and obvious” danger only if such danger contains “special aspects” that make it “unreasonably dangerous.” Lugo, supra at 517. Thus, in the context of an accumulation of snow and ice, Lugo means that, when such an accumulation is “open and obvious,” a premises possessor must “take reasonable measures within a reasonable period of time after the accumulation of snow and ice to diminish the hazard of injury to [plaintiff]” only if there is some “special aspect” that makes such accumulation “unreasonably dangerous.” [Mann, supra at 332 (emphasis added).]
The language from Mann emphasized by us makes clear that not all snow and ice accumulation is open and obvious. In Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 260-261; 235 NW2d 732 (1975), the Supreme Court rejected “the prominently cited notion that ice and snow hazards are obvious to all and therefore may not give rise to liability.” The Mann decision affected Quinlivan as directly indicated in Mann, in which the Court stated:
Quinlivan . . . must be understood in light of this Court’s subsequent decisions in Bertrand [v Alan Ford, Inc, 449 Mich 606; 537 NW2d 185 (1995)] and Lugo. Concerning the duty of care a homeowner or other premises possessor owes to an invitee arising from the accumulation of ice and snow, Justice Weaver relies in her concurrence/dissent on Quinlivan and asserts that “premises possessors owed a duty to invitees to take ‘reasonable measures ... within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee.’ ” The majority is unprepared to hold that, absent any special aspects, and absent consideration of the open and obvious nature of a hazard, a homeowner or other premises possessor owes an absolute duty to an invitee to diminish the hazards attendant to the accumulation of ice and snow. [Mann, supra at 333 n 13 (citation omitted).]
We read Mann as holding that the open and obvious danger doctrine and principles concerning special aspects are equally applicable to cases involving the accumulation of snow and ice. Mann does not stand for the proposition that all accumulations of snow and ice are open and obvious. Our interpretation of Mann and the Supreme Court’s discussion of Quinlivan are that, if a snow or ice hazard is not open and obvious, or, if the hazard is open and obvious but special aspects exist, the premises owner owes a duty to an invitee to exercise reasonable care to protect the invitee from the snow or ice hazard. In such cases, Quinlivan’s standard that “reasonable measures be taken within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee” remains applicable. Quinlivan, supra at 261.
The question presented to us, as we see it, is whether it can be said, as a matter of law, that a reasonably prudent person with ordinary intelligence would have been able to perceive and foresee the dangerous condition, i.e., black ice under a coating of snow, upon casual inspection. We conclude that the answer is “no.” Rather, reasonable minds could differ regarding the open and obvious nature of black ice under snow; therefore, the openness and obviousness of the danger must be determined by a jury. Clearly, the black ice, as a latent danger, was not visible, which detracts from a finding that the danger was open and obvious upon casual inspection. There is no indication in the record that there had been any previous rainfall or extensive thawing that might put one on notice of the presence of ice under snow that subsequently fell. We also note that, according to plaintiffs deposition testimony, one of plaintiffs companions slipped at the same time plaintiff slipped and fell, or immediately thereafter, and a third unknown person slipped and fell in the same spot as plaintiff shortly after plaintiffs spill. This evidence could call into question whether the danger was indeed open and obvious to reasonably prudent persons. A jury made up of Michiganders, not a court as a matter of law, is the appropriate arbiter in determining whether the danger was open and obvious, taking fully into consideration the condition of the parking lot as it existed at the time of the fall. It can be argued that the presence of snow should have placed plaintiff on notice to be careful in walking such that the same care would have protected against a fall on ice. However, it can hardly be disputed that the danger of walking on ice is far greater than merely walking on snow alone, and a reasonably prudent person would proceed much more cautiously when observing that ice is being traversed rather than snow.
On remand, and as stated in Mann, supra at 330, “in determining whether defendant breached its duty, the fact-finder must decide only whether a reasonably prudent person would have slipped and fallen on the ice and snow in defendant’s parking lot, or whether that reasonably prudent person should have been warned by defendant of the dangerous condition.”
This Court’s decision in Joyce, supra, in which the plaintiff fell on a snow-covered sidewalk, and in which the Court found that the danger was open and obvious, does not compel a similar conclusion here. Joyce is factually distinguishable. The Joyce panel, in support of its decision, noted the following factual circumstances:
Joyce testified during her deposition that it snowed lightly the morning of March 10 and that, when she arrived at Barry Rubin’s house, she saw snow on the driveway and snow on the sidewalk. Further, Joyce stated that she watched where she walked on the sidewalk and walked very carefully because she knew the sidewalk was “not very safe.” Joyce also acknowledged that she slipped on snow that had fallen but had not yet melted, that she knew the sidewalk was slippery, that she repeatedly told Debra Rubin it was slippery, and that she slipped twice while walking on the sidewalk before she finally fell.
Contrary to Joyce’s arguments on appeal, her testimony establishes beyond peradventure that she saw the snow and recognized that the snow posed a safety hazard to her. Further, Joyce’s testimony establishes that she felt the slippery texture of the snow (or ice underneath the snow) when she slipped twice before falling. Because Joyce lost her footing twice on the sidewalk, she was undoubtedly aware of the condition and the specific, potential danger of slipping before she fell. Under similar circumstances, an average person with ordinary intelligence would not only have seen the snowy condition of the sidewalk, but would have discovered the risk of slipping on it. Thus, subjectively and objectively, no reasonable juror could have concluded that the condition of the sidewalk and the danger it presented was not open and obvious. .. . [Id. at 239-240 (emphasis in original).]
Here, although plaintiff did observe a light dusting of snow, she testified that she did not see the ice that was covered by the snow and that allegedly caused her fall. Considering that “black ice” coated the area, it is questionable that the ice would be observable even without the snow covering it. There was no testimony that plaintiff knew that the lot was sheeted with ice before she walked from the car toward the funeral home. Plaintiff never told anyone that the lot was slippery, nor had she slipped in the lot before the fall like the plaintiff in Joyce. There was also no evidence that plaintiff felt the presence of ice before falling.
Further, defendant’s reliance on Perkoviq v Delcor Homes — Lake Shore Pointe, Ltd, 466 Mich 11; 643 NW2d 212 (2002), is misplaced. The Perkoviq Court stated, “There was nothing hidden about the frost or ice on the roof, and anyone encountering it would become aware of the slippery conditions.” Id. at 16. Here, when viewing the evidence in a light most favorable to plaintiff, the black ice was indeed hidden and not observable on encountering it.
This Court’s decision in Corey v Davenport College of Business (On Remand), 251 Mich App 1; 649 NW2d 392 (2002), likewise does not compel affirmance of the order granting summary disposition. In Corey, the plaintiff slipped and fell on snowy and icy steps located outside one of the defendant’s dormitories. This Court, in concluding that the hazard was open and obvious, stated that the “[p]laintiff is a reasonable person who recognized the snowy and icy condition of the steps and the danger the condition presented.” Id. at 5. Here, again, there is evidence that plaintiff did not recognize the ice-laden condition of the parking lot, and we conclude that reasonable minds could differ in regard to whether a reasonably prudent person would have recognized the icy danger.
We hold that the trial court erred in granting summary disposition pursuant to the open and obvious danger doctrine. We further conclude that there is a genuine issue of material fact regarding whether there were special aspects of the condition that rendered it unreasonably dangerous. Our Supreme Court in Lugo, supra at 518, providing examples of “special aspects,” stated as follows:
An illustration of such a situation might involve, for example, a commercial building with only one exit for the general public where the floor is covered with standing water. While the condition is open and obvious, a customer wishing to exit the store must leave the store through the water. In other words, the open and obvious condition is effectively unavoidable. Similarly, an open and obvious condition might be unreasonably dangerous because of special aspects that impose an unreasonably high risk of severe harm. To use another example, consider an unguarded thirty foot deep pit in the middle of a parking lot. The condition might well be open and obvious, and one would likely be capable of avoiding the danger. Nevertheless, this situation would present such a substantial risk of death or severe injury to one who fell in the pit that it would be unreasonably dangerous to maintain the condition, at least absent reasonable warnings or other remedial measures being taken.
As noted earlier, “only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk or hazard is not avoided will serve to remove that condition from the open and obvious danger doctrine.” Id. at 518-519. There is no indication in Lugo that the examples or illustrations of special aspects provided in the opinion reflect the only situations where special aspects can arise.
Here, there was evidence that the parking space utilized by plaintiff was the only remaining vacant spot in the entire lot and that plaintiff was a passenger in the vehicle, not the driver with control over the automobile. Moreover, others fell in the parking lot, which could lead reasonable minds to conclude that the parking lot remained unreasonably dangerous even assuming the danger was open and obvious. Accordingly, should the jury determine that the danger or hazard was open and obvious, an issue of fact would still have to be resolved by the jury in regard to whether special aspects existed such, that the danger remained unreasonably dangerous, with the jury taking into consideration all the surrounding circumstances presented to plaintiff that snowy December day.
Finally, it is necessary to address the trial court’s ruling that summary disposition was also proper where plaintiff failed to convince the court that defendant had notice of the hazard. The invitor’s duty to invitees is “ ‘to exercise reasonable care to protect the invitees from an unreasonable risk of harm caused by a dangerous condition of the land’ that the landowner knows or should know the invitees will not discover, realize, or protect themselves against.” Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995) (citations omitted). We conclude that an issue of fact exists with respect to whether defendant knew or should have known about the dangerous condition and the possibility that plaintiff would not discover the danger. The documentary evidence submitted to the trial court indicates that Richard Kaatz arrived at the funeral home one to two hours before plaintiff, and he indicated that it had snowed earlier that day, stopped snowing, and then began snowing again in the evening. He further testified that there was snow on the ground in the lot at the funeral home when he arrived. Additionally, Katz testified:
Q. And at that point in time you pulled out— somewhere around 5:15, 5:30, 5:45 you pulled out a shovel, you pushed some snow around the entrances, and you pushed a path from you said the handicapped parking area, correct?
A. And salted.
Q. And you salted, correct?
A. Correct.
Besides claiming that he salted the entrances and the handicapped parking area, Kaatz also stated that he salted other areas of the parking lot, but not specifically the spot where plaintiff fell. The fact that Kaatz was salting areas of the parking lot and the entrances suggests that he was aware of slippery conditions on defendant’s property and should have been aware of slippery conditions where plaintiff fell.
Moreover, the deposition testimony of R & L’s owner indicated that his company salted a lot within six miles of the funeral home on the day of the accident, that the company plowed the funeral home’s lot on that same day between 4:00 p.m. and 4:45 p.m. pursuant to a call from Kaatz, and that the conditions called for salting at the funeral home, but that salting was not undertaken because there was no request for salting nor an agreement that R & L would be paid for salting when plowing if salting is done without request.
The evidence presented is sufficient to give rise to an issue of fact regarding whether defendant had knowledge or should have had knowledge of the ice under the snow before plaintiffs arrival at the funeral home.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
White, J., concurred.
The trial court also summarily dismissed plaintiffs claims against defendant R & L Snow and Lawn Service (R & L). Plaintiff does not challenge on appeal that dismissal. Reference to “defendant” in this opinion pertains solely to defendant Kaatz Funeral Home.
Because we view the evidence in a light most favorable to plaintiff for purposes of summary disposition, we proceed by accepting plaintiffs deposition testimony that she slipped and fell on black ice covered by a layer of snow.
With respect to plaintiffs companions holding the car as they maneuvered toward the funeral home, we find that the evidence is subject to reasonable interpretations other than solely the one surmised by the trial court. There are numerous reasons someone may have been holding onto the car, including age and general difficulty walking. Although not entirely clear from the record, it appears that plaintiffs four companions were elderly women of ages comparable to plaintiffs. We also note that plaintiff did not specifically testify that she recognized that her companions were holding the car because of ice on the lot. Further, plaintiffs testimony makes clear that her three other companions, who “hung on to the hood and walked up to the funeral home” walked “alongside of the car and they went out the front way” while plaintiff and the driver, who also fell, walked around the back of the car to avoid walking between the cars. The dissent admonishes us for speculating about the reasons plaintiffs companions held onto the car, yet the dissent’s own conclusion that they grasped the car because it was slippery is speculative. There is no documentary evidence to support the conclusion that icy conditions caused plaintiffs elderly companions to hold the car. As the moving party under MCR 2.116(0(10), defendant had the duty to provide supporting documentary evidence, MCR 2.116(G)(3)(b), and until such supporting evidence was presented, plaintiff did not have to counter it with her own documentary evidence, MCR 2.116(G)(4) (“When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations ....” [emphasis added].). Our inference is as reasonable as the dissent’s inference, and it is left for the jury to decide the matter.
The dissent criticizes us by asserting that our focus is improperly placed on plaintiffs subjective knowledge of the condition rather than applying an objective standard. The language from our opinion, which the dissent quotes to support his contention, however, is taken out of context and is merely a discussion of the distinguishing features between the case at bar and Joyce. As clearly reflected in our repeated references to a “reasonably prudent person,” we have indeed applied an objective standard. | [
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PER CURIAM.
Defendant appeals as of right from his convictions by a jury of third-degree criminal sexual conduct (CSC III), MCL 750.520d(l)(b), and fourth-degree criminal sexual conduct (CSC IV), MCL 750.520e(l)(b). The trial court sentenced defendant to 127 months to thirty years of imprisonment for the CSC III conviction and to one to four years of imprisonment for the CSC IV conviction. We affirm.
I. FACTS
The victim testified at trial as follows: She met defendant in October 2001, when he joined her place of employment, Medicaid Assistance Services (Med-Assist) in Birmingham. They were friendly with one another at work. Around July 17, 2002, defendant called her to his office cubicle so that she could assist him with a computer problem. While at his cubicle, defendant grabbed her left wrist and “made [her] touch his crotch.” With his other hand he rubbed one of her breasts. He told her that she had “made him hard” and that he wanted her to “make him come.” She did not tell anyone about the incident. Two days later, defendant came into her cubicle and again grabbed her wrist and made her “touch his crotch....” He told the victim that she should have sexual intercourse with him. About 4:00 p.m., at the end of the workday, she was in a parking structure walking to her car when defendant approached her, grabbed her arm, and pulled her towards his car. He forced her into the passenger seat. She remained in the seat because she was afraid defendant would hurt her if she tried to leave. Defendant then “grabbed the back of the victim’s head and forced” her to perform oral sex on him. Defendant told her that she should not “bother telling anybody.” She did not tell her husband about the incident because she felt ashamed.
The victim stated that, after the incident in the parking structure, defendant “grabbed [her] wrist or.. . touch[ed her] breasts” about eleven or twelve other times. During one of the incidents, he again stated that the victim should have sexual intercourse with him. The victim stated that she finally told someone about the sexual assaults after defendant ceased working at Med-Assist in November 2002. She spoke to a coworker, K\^ and to the president of the company, and then she spoke to the police.
On cross-examination, defense counsel insinuated that the victim waited to tell someone about the sexual contact between her and defendant because the contact had been consensual and she was married. He implied that, before the incidents of sexual contact, the victim had massaged defendant’s shoulders and essentially invited the sexual incidents. He further implied that KW¡ with whom the victim spoke before going to the police, was a close friend of the victim’s and had a grudge against defendant.
John Heppner, a detective with the Birmingham Police Department, testified as follows: He spoke with defendant on November 5, 2002, after the victim reported the incidents of sexual assault to the police. He and his colleague told defendant that a coworker had filed a complaint against him. They asked defendant if he knew who might have made such a complaint, and defendant suggested that it might have been BW, his neighbor, because “he had got into some trouble with RW’s sister.” When they asked about the possibility of him having improperly touched the victim, defendant “kind [of] chuckled and stated that if there was any [inappropriate] touching it was [a] mutual [thing].” Defendant stated that the victim had voluntarily rubbed herself against him and that “mutual groping” occurred several times throughout his employment at the victim’s workplace. He stated that she voluntarily performed oral sex on him during the incident in the parking structure. Defendant stated that he believed the victim filed the complaint because she was “gangfing] up” with RW to retaliate against him for the (as yet unspecified) incident involving defendant and RW’s sister.
HW^ RW’s sister, testified as follows: She came to know defendant because he lived next to, worked with, and was friendly with her brother. On October 12,2002, she met with her brother and defendant to see a horse race. They went to a bar after the race, and she agreed to give defendant a ride home in her vehicle. As she began driving, defendant reached across from the passenger seat and grabbed her inner thigh. He then attempted to grab her breast, and when she looked over at him, she saw that he had his penis exposed and was masturbating. He asked her to perform oral sex on him, and when she refused, he asked if he could perform oral sex on her. She refused. He also “grabbed [her] arm off the steering wheel” twice and tried to get her to touch his penis. He zipped his pants up after HW told him she was not interested in having sex.
HW stated that she agreed to keep quiet about the incident but that she reported the incident to the police after speaking with her brother about it. When asked why she waited a day or two to report the incident, she stated that she had initially hoped it was an isolated incident and that she “was going to give him a chance to apologize to me, when he ran like a coward I told his wife.”
RB testified that, in the spring of 2000, she came to defendant’s house for a party. RB had some drinks, became tired, and decided to lie down in the children’s room. When she awoke, defendant’s “hands were on [her] buttocks and he was playing with himself.” She immediately got up and left the premises. She told defendant’s wife about the incident and also reported it to the police.
Forrest White, an employee at Med-Assist, testified that the victim’s and defendant’s cubicles were not adjacent and that to get from one to the other, “one would have to go out into the hallway and walk down another hallway . . . through doors.” He further testified that defendant did not share anyone else’s cubicle and that defendant and the victim worked for different “teams” at Med-Assist.
Bruce Knight, the owner of Med-Assist, testified that all employees at Med-Assist receive a handbook detailing the company’s policy concerning sexual harassment and that the handbook encourages employees to report prob lems at work. He testified that the victim had come to him in the past regarding various problems in the workplace.
Carol Cottec, an employee at the parking structure used by Med-Assist employees, testified that, according to the electronic records, defendant left the parking structure at 1:05 p.m. on July 19, 2002.
Defendant testified as follows: The victim approached him not long after he was hired at Med-Assist and began rubbing his shoulders and chest. About two weeks later, he and the victim came across one another in the parking structure and began “making out” in his car. She voluntarily performed oral sex on him. After-wards, he and the victim would occasionally fondle one another while in the office. He never forced the victim to do anything against her will.
Defendant admitted that he “ma[d]e a pass at” HW and intimated that this occurred because he had drunk too much alcohol. With regard to RB’s allegations, defendant stated that he never fondled her or masturbated in front of her but that he simply shook her to try to wake her up. Defendant further testified that, during the month of July 2002, he always left the office in the early afternoon.
On cross-examination, the prosecutor elicited that defendant had previously pleaded guilty of CSC IV in connection with the allegations made by RB.
The jury convicted defendant of CSC III and CSC IV with regard to the incidents occurring around July 17, 2002. The jury acquitted defendant of CSC IV with regard to an alleged incident of sexual contact occurring in October 2002.
II. OTHER-ACTS EVIDENCE
Defendant first argues that the trial court erred in allowing the jury to hear evidence of the sexual incidents that occurred between HW and defendant and between RB and defendant. In admitting this evidence under MRE 404(b), the trial court stated, in part, that the evidence was “relevant to show the existence of a scheme, plan, or method by which the defendant accomplished the sexual assault in that consent is an issue, therefore, showing a scheme, plan, or method by which he non-consentually [sic] engages in sexual assault with women is relevant to this trial.”
We review a trial court’s decision to admit evidence for an abuse of discretion. People v Watson, 245 Mich App 572, 575; 629 NW2d 411 (2001). “An abuse of discretion exists if an unprejudiced person would find no justification for the ruling made.” Id. Under MRE 404(b)(1), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” However, such evidence may be used to prove something other than the defendant’s propensity to commit a particular crime. Id.; Watson, supra at 576. Some permissible uses are “proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material . . . .” MRE 404(b)(1). In Watson, this Court summarized the fac tors a court must consider when analyzing evidence under MRE 404(b):
First, the prosecutor must offer the other acts evidence for a permissible purpose, i.e., to show something other than the defendant’s propensity to commit the charged crime. [People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).] Second, the evidence must be relevant to an issue or fact of consequence at trial. Id. Third, the trial court must determine whether the evidence is inadmissible under MRE 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. VanderVliet, supra at 74-75. Additionally, the trial court, on request, may instruct the jury on the limited use of the evidence. Id. at 75. [Watson, supra at 577.]
In People v Sabin (After Remand), 463 Mich 43, 48, 52; 614 NW2d 888 (2000), the defendant was convicted of first-degree criminal sexual conduct on the basis of his daughter’s testimony that he engaged in sexual intercourse with her. The prosecutor introduced other-acts testimony from defendant’s former stepdaughter in which she stated that defendant had sexually abused her for several years by performing oral sex on her and putting his penis between her legs. Id. at 49-51. The Supreme Court ruled that the other-acts evidence was properly admitted, stating:
Today, we clarify that evidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system. [Id. at 63.]
The Court noted:
“[E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” [Id. at 66 (citation omitted).]
The Court then stated:
In this case, we conclude that the trial court did not abuse its discretion in determining that defendant’s alleged assault of the complainant and alleged abuse of his stepdaughter shared sufficient common features to infer a plan, scheme, or system to do the acts. The charged and uncharged acts contained common features beyond mere commission of acts of sexual abuse. Defendant and the alleged victims had a father-daughter relationship. The victims were of similar age at the time of the abuse. Defendant allegedly played on his daughters’ fear of breaking up the family to silence them. One could infer from these common features that defendant had a system that involved taking advantage of the parent-child relationship, particularly his control over his daughters, to perpetrate abuse. [Id.]
Applying the principles from Sabin to this case, we find no error requiring reversal with regard to HW’s testimony. Indeed, the evidence concerning the incident with HW established that defendant grabbed her thigh and breast, exposed his penis to her, attempted to grab her hand and place it on his penis, and requested that she perform oral sex on him. The victim’s testimony indicated that defendant, at various times, touched her breast, grabbed her wrist and placed her hand on his “crotch,” exposed his penis, and forced the victim to perform oral sex on him. The assaults on both women involved the grabbing of the woman’s body parts, the attempt to move the woman’s hand to defendant’s penis, the exposure of defendant’s penis, and the attempt (in the victim’s case, the successful attempt) to receive oral sex. One could infer from these “common features” that defendant had a common scheme of suddenly grabbing unwilling women and seeking immediate sexual gratification from them. See, generally, id. The prosecutor therefore introduced the evidence for a proper purpose. Moreover, the evidence was “relevant under a permissible theory of logical relevance” — namely, to suggest to the jury that it was more likely that defendant committed the charged assaults because he used his common system in committing them. See id. at 63-64 n 10, 70. Additionally, “the danger of unfair prejudice did not substantially outweigh the probative value of the evidence,” id. at 71, given the significant probative value of the evidence with regard to whether the charged sexual assaults (as opposed to mere consensual activity) occurred. Finally, the trial court gave a limiting instruction with regard to the other-acts evidence. Under the circumstances, no abuse of discretion occurred with respect to the jury’s hearing evidence of the sexual incident between defendant and HW
We similarly find no error requiring reversal with regard to the incident that occurred between defendant and RB. Indeed, the evidence of this incident showed once again that defendant employed a common scheme of suddenly grabbing unsuspecting women and seeking immediate sexual gratification. While it is true that RB could not testify with certainty that defendant exposed his penis during the incident (as he did with HW and the victim), RB nonetheless inferred from the defendant’s movements that he was masturbating. The testimony about masturbation was, in our opinion, substantially equivalent to testimony that defendant exposed his penis. While the situation involving RB might be
one in which reasonable persons could disagree on whether the charged and uncharged acts contained sufficient common features to infer the existence of a common system used by defendant in committing the acts .... [T]he trial court’s decision on a close evidentiary question such as this one ordinarily cannot be an abuse of discretion. [Id. at 67.]
Considering all the circumstances, the prosecutor offered the evidence for a proper purpose; the evidence was “relevant under a permissible theory of logical relevance,” see id. at 63-64 n 10, 70; and “the danger of unfair prejudice did not substantially outweigh the probative value of the evidence.” See id. at 71. Moreover, the trial court gave an appropriate hmiting instruction. Reversal is unwarranted.
III. SUFFICIENCY OF THE EVIDENCE
Next, defendant argues that the prosecutor presented insufficient evidence to support his convictions. In reviewing the sufficiency of the evidence, we “must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt.” People v Hoffman, 225 Mich App 103, 111; 570 NW2d 146 (1997); see also People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). All conflicts with regard to the evidence must be resolved in favor of the prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997). We must not interfere with the jury’s role of determining the weight of the evidence or the credibility of witnesses. Id.; Wolfe, supra at 514-515.
Defendant’s argument borders on the specious and requires no extensive discussion. Indeed, defendant does not focus on any particular elements of CSC III or CSC IV but merely argues that the victim’s testimony was not believable. He emphasizes that no independent eyewitnesses or physical evidence existed to corroborate the victim’s testimony. There is no requirement, however, that the complainant’s testimony be corroborated in order for a CSC conviction to stand. MCL 750.520h. The victim’s testimony established that defendant engaged in sexual penetration and in sexual contact with her contrary to MCL 750.520d(l)(b) and 750.520e(l)(b). It was up to the jury to assess her credibility. Terry, supra at 452; Wolfe, supra at 514-515. Reversal is not warranted.
IV SENTENCING GUIDELINES VARIABLES
Defendant next argues that the sentencing guidelines range (51 to 127 months) for his CSC III conviction was too high because two offense variable (OV) scores were miscalculated. Specifically, defendant objects to the scoring of OV 4 (psychological injury to a victim, see MCL 777.34) and OV 10 (exploitation of a vulnerable victim, see MCL 777.40). We review for an abuse of discretion issues concerning the proper scoring of sentencing guidelines variables. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).
Defendant received ten points for OV 4. A defendant is to receive ten points for OV 4 if “[s]erious psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(l)(a). As noted by the trial court, ten points are to be assessed “if the serious psychological injury may require professional treatment. In making this determination, the fact that treatment has not been sought is not conclusive.” MCL 777.34(2) (emphasis added). We conclude that the evidence supported the ten-point score for OV 4. Indeed, the “Victim Impact Statement” in the presentence investigation report states, in part, that the victim’s
life has been terrible since the incidents. She states that she has a lot of nightmares, problems in her marriage, problems at work, and in just about every other facet of her life. She states that this whole situation has been a nightmare, and again has [a]ffected every area of her life. She indicates that she has not sought treatment as of this writing date, however, she plans to do so in the future.
The evidence of the victim’s disrupted life, her nightmares, and her plans to seek treatment supported the ten-point score. No error occurred with respect to the scoring of OV 4.
Defendant received fifteen points for OV 10. A defendant is to receive fifteen points for OV 10 if “[pjredatory conduct was involved.” MCL 777.40(l)(a). “Predatory conduct” is defined as “preoffense conduct directed at a victim for the primary purpose of victimization.” MCL 777.40(3)(a). The trial court stated, in part, as follows with regard to the scoring of OV 10:
Vulnerability, clearly this victim, anyone who observed her demeanor on the stand would assess or attest to her vulnerability. She was what I would classify as readily susceptibility [sic] of a victim. To persuasion, to psychological injury based on her past.
Accordingly, if I believe the defendant’s story, she consistently went to the defendant with complaints about her marriage, the fact that she couldn’t handle it. All these factors are not conclusive but in this court’s mind and based on all the testimony hear[d] in this trial, considering the 404-B conduct, considering the conduct the defendant exhibited toward the victim in this case, this is an extremely appropriate scoring. Predatory conduct is exactly how I would describe the defendant in this case.
We find no abuse of discretion with respect to the scoring of OV 10. The victim testified that defendant fondled her and grabbed her wrist around July 17,2002, before the instance of penetration supporting the CSC III conviction. Defendant told the victim that she had “made him hard” and that he wanted her to “make him come.” Two days later, he stated that she should have sexual intercourse with him. He then approached the victim in a parking structure, grabbed her arm, and forced her to enter his car before the act of penetration occurred. Additionally, even though this fact did not come out at trial because of the prosecutor’s successful motion in limine, the trial court was aware that the victim had attempted suicide in the past. The trial court’s findings indicate that it considered the victim’s demeanor and came to a reasoned conclusion that she had been a vulnerable victim. Under all the circumstances, the trial court did not err in allowing a fifteen-point score for OV 10.
V CRUEL OR UNUSUAL PUNISHMENT
Next, defendant argues that his sentence for the CSC III conviction violates the constitutional prohibitions against cruel or unusual punishment. See US Const, Am VIII (prohibition against cruel and unusual punishment); Const 1963, art 1, § 16 (prohibition against cruel or unusual punishment). Because defendant’s sentence fell within the sentencing guidelines range, this argument is without merit. See People v McLaughlin, 258 Mich App 635, 669-671; 672 NW2d 860 (2003). At any rate, the sentence was proportionate in light of the circumstances surrounding the offense and the offender, and a proportionate sentence does not constitute cruel or unusual punishment. See People v Colon, 250 Mich App 59, 66; 644 NW2d 790 (2002).
Affirmed.
The victim testified that, at least for part of the time, she and defendant had adjacent cubicles. She also stated, however, that the cubicle adjacent to hers that defendant used was not defendant’s “assigned cubicle” and that he was “sharing it with another employee who worked in the office part time.”
Knight’s testimony implied that the victim could have easily reported the abuse perpetrated by defendant in a more timely fashion than she actually did.
Defense counsel had elicited that the victim testified at the preliminary examination that the oral sex incident occurred on July 19, 2002; at trial she stated that she was not certain about the exact date. A review of the preliminary examination transcript reveals that she was not certain at that time, either, about the exact date.
We note that defendant preserved his objections to the scoring as required by MCR 6.429(C). We further note defendant’s allegation in a supplemental brief that Blakely v Washington, 542 US_; 124 S Ct 2531; 159 L Ed 2d 403 (2004), applies to the sentencing in this case. We disagree with this contention. Indeed, the Michigan Supreme Court noted in People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004), that Blakely does not affect Michigan’s sentencing system. We disagree with defendant that this statement from Claypool is not binding on us. Nevertheless, given the large number of recent criminal appeals in which this issue has been raised, we request that the Supreme Court issue its opinion concerning whether footnote fourteen in Claypool constitutes binding precedent. | [
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FER CURIAM.
Petitioners appeal by leave granted the circuit court order affirming the hearing referee’s grant of summary disposition for respondent Department of Environmental Quality (DEQ) pursuant to MCR 2.116(C)(4), lack of subject-matter jurisdiction. We affirm.
The facts of this case are largely undisputed. In late June 2001, petitioners had substantially completed construction of a garage addition that was built on existing pilings. On July 5, 2001, the DEQ sent petitioners a notice of violation informing them that the garage addition was built in violation of the permit requirements of part 303 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.30301 to 324.30323. Petitioners responded that they were unaware that a permit was required. On October 26, 2001, the DEQ sent petitioners an order to restore the construction to its original state. The order sought petitioners’ voluntary compliance in removing the garage, girders, and pilings constructed in violation of part 303 of the NREPA. The order also stated that the DEQ would not process an after-the-fact (ATF) permit application if submitted by petitioners. See MCL 324.30306(5).
Petitioners subsequently submitted an ATF permit application to the DEQ. The DEQ returned the ATF permit application, informing petitioners that it could not process it because an order to restore had already been issued. Petitioners then sought a contested case hearing with the DEQ Office of Administrative Hearings (QAH). The hearing referee granted the DEQ’s motion for summary disposition, and petitioners sought review in the circuit court. The court affirmed, citing the language of MCL 324.30306(5) and concluding that the OAH lacked jurisdiction to review the merits of the ATF permit application.
Petitioners first argue that they were denied due process by the circuit court affirming the hearing referee’s dismissal of their petition for a contested case hearing. This Court reviews a circuit court’s grant of summary disposition de novo. McManamon v Redford Charter Twp, 256 Mich App 603, 610; 671 NW2d 56 (2003). Additionally, “[wjhether subject-matter jurisdiction exists is a question of law.” Jones v Slick, 242 Mich App 715, 718; 619 NW2d 733 (2000).
MCL 324.30306(5) provides:
If work has heen done in violation of a permit requirement under this part and restoration is not ordered by the department, the department may accept an application for a permit if the application is accompanied by a fee equal to twice the permit fee required under this section.
When the powers of an administrative agency are specifically conferred, they cannot be extended by inference. Lake Isabella Dev, Inc v Village of Lake Isabella, 259 Mich App 393, 401; 675 NW2d 40 (2003). By its plain language, MCL 324.30306(5) gives the DEQ discretion to process an ATF permit application, but specifically limits the exercise of that discretion to the period before an order to restore has been issued. Once the order to restore was issued, the DEQ no longer possessed the authority to process petitioners’ ATF permit application.
Nevertheless, petitioners argue that because they have been aggrieved by the DEQ’s refusal to process their ATF permit application, the OAH had jurisdiction under MCL 324.30319(2), which provides:
If a person is aggrieved by any action or inaction of the department, the person may request a formal hearing on the matter involved. The hearing shall be conducted by the department pursuant to 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.
This provision clearly states that a person must be “aggrieved” by the DEQ’s action or failure to act to have standing to request a formal hearing under the Administrative Procedures Act (APA), MCL 24.201 et seq. However, no definition of “aggrieved” is provided. “When determining the common, ordinary meaning of a word or phrase, consulting a dictionary is appropriate.” Title Office, Inc v Van Buren Co Treasurer, 469 Mich 516, 522; 676 NW2d 207 (2004). Black’s Law Dictionary (6th ed) defines “aggrieved” to mean, “Having suffered loss or injury; damnified; injured.” An “aggrieved party” is defined as follows:
One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment.... The word “aggrieved” refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation. [Id.; see also Dep’t of Consumer & Industry Services v Shah, 236 Mich App 381, 385; 600 NW2d 406 (1999).]
While petitioners argue that they were aggrieved by the issuance of the notice of violation and the order to restore, they fail to show how the issuance of these documents invaded a legal right or adversely affected a pecuniary or property interest. The APA indicates that a license “includes the whole or part of an agency permit. ...” MCL 24.205(1). Once given, a license becomes a protected property interest. Bundo v Walled Lake, 395 Mich 679, 692; 238 NW2d 154 (1976). However, because the same interest is not found in an initial request for a license, due process does not require that a hearing be held at this stage of the permit process. Id., citing Bd of Regents v Roth, 408 US 564, 577; 92 S Ct 2701; 33 L Ed 2d 548 (1972). See also Wong v City of Riverview, 126 Mich App 589, 592; 337 NW2d 589 (1983) (observing that “a first-time applicant [for a liquor license] is not even entitled to minimal dues process”).
Further, there is nothing in the language of either MCL 324.30306(5) or MCL 324.30319(2) that requires a contested case hearing be held with respect to an ATF permit application. “ ‘Contested case’ means a proceeding ... in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.” MCL 24.203(3). In Bois Blanc Island Twp v Natural Resources Comm, 158 Mich App 239, 244; 404 NW2d 719 (1987), this Court observed that the contested-case provisions of the APA do not apply to the issuance of initial permits by the Department of Natural Resources unless specifically required by statute. See MCL 24.291(1) (“When licensing is required to be preceded by notice and an opportunity for hearing, the provisions of this act governing a contested case apply.”). The language of MCL 324.30306(5) does not require the opportunity for an evidentiary hearing in the circumstances of an ATF permit application. See Kelly Downs, Inc, v Racing Comm, 60 Mich App 539, 547; 231 NW2d 443 (1975). Rather, the statute provides a mechanism for submitting an ATF permit application. And while MCL 324.30319(2) does refer to a formal hearing, it does so only in the context of acknowledging the right of an aggrieved person to request such a hearing. Significantly, the statute does not provide that the administrative agency must grant such a request. Rather, it only mandates that, if such a hearing is held, it be conducted according to the relevant provisions of the APA.
Petitioners also argue that the order to restore was issued prematurely. We disagree. MCL 324.30315(1) provides:
If, on the basis of information available to the department, the department finds that a person is in violation of this part or a condition set forth in a permit issued under section 30311 or 30312, the department shall issue an order requiring the person to comply with the prohibitions or conditions or the department shall request the attorney general to bring a civil action under section 30316(1). [Emphasis added.]
Under this provision, the DEQ was required to either issue the order to restore when it found that petitioners had violated the permit requirements or request the Attorney General to pursue the matter. The statute does not provide for an alternative procedure to be followed before taking either action. Therefore, this assertion is without merit.
We also reject petitioners’ assertion that their ATF permit application was submitted in a timely fashion. Petitioners did not submit their ATF permit application until after the DEQ had issued the order to restore. As previously discussed, the DEQ is not authorized to process an ATF permit application submitted after an order to restore has been issued. MCL 324.30306(5).
Petitioners also contend that they were denied due process when the OAH accepted a letter filed on behalf of the DEQ by an individual not licensed to practice law in Michigan. The letter raised the subject-matter juris diction by the OAH, and the OAH treated it as a motion for summary disposition. We disagree that petitioners were denied due process. “At the very least, due process requires the court (1) to offer to hold a hearing before it deprives the litigant of a property interest and (2) to provide notice of the hearing to the litigant.” In re Adams Estate, 257 Mich App 230, 234; 667 NW2d 904 (2003). “In any proceeding involving notice, due process requires that the notice given be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 504; 536 NW2d 280 (1995).
The record indicates that the OAH immediately forwarded a copy of the letter to petitioners. The record also indicates that petitioners were given a full opportunity to brief and argue the issues raised in the letter. Further, the issue of subject-matter jurisdiction may be raised at any time, even on appeal. Phinney v Perlmutter, 222 Mich App 513, 521; 564 NW2d 532 (1997). “ ‘[Bjecause a court at all times is required to question sua sponte its own jurisdiction,’ ” Straus v Governor, 459 Mich 526, 532; 592 NW2d 53 (1999) (citation omitted), the OAH was obligated to consider whether it had jurisdiction regardless of the status of the person who sent the letter. Therefore, we conclude that petitioners were not denied due process. Vicencio, supra.
Petitioners also argue that they were deprived of due process because the letter was an improper ex parte communication. In support of this assertion, petitioners cite MCL 24.282, which provides:
Unless required for disposition of an ex parte matter authorized by law, a member or employee of an agency assigned to make a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except on notice and opportunity for all parties to participate. This prohibition begins at the time of the notice of hearing. [Emphasis added.]
Here, the notice of hearing was sent after the OAH received the letter. Therefore, under the plain language of MCL 24.282, the letter was not an improper ex parte communication.
Additionally, petitioners argue that the DEQ should have been estopped from enforcing the permit requirements of part 303 of the NREPA because the DEQ knew of petitioners’ construction and allowed it to progress to a substantial state of completion before issuing a notice of violation. Specifically, petitioners contend that the DEQ’s agents were on or near their property during various stages of the garage’s construction, yet did not give notice of the violation until the garage was nearly complete. However, the lower court record is devoid of any documentation supporting these assertions. Petitioners also argue that the DEQ should have known about the construction because it could have required the local agency to file a copy of the construction plan with the DEQ pursuant to 1999 AC, R 323.1702(3). Again, petitioners presented no documentary evidence showing that the plans were actually filed with respondent or that such filings were required in that community. Because this Court’s review of this issue is limited to the lower court record, and the record is insufficient to support petitioners’ claim, petitioners’ argument must fail. Nationwide Mut Ins Co v Quality Builders, Inc, 192 Mich App 643, 648; 482 NW2d 474 (1992).
Finally, petitioners argue for the first time in their reply brief that the DEQ did not have the authority to issue an order to restore. “Reply briefs may contain only rebuttal argument, and raising an issue for the first time in a reply brief is not sufficient to present the issue for appeal.” Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241, 252; 673 NW2d 805 (2003); MCR 7.212(G). Moreover, this issue was not contained in petitioners’ application for leave to appeal. Therefore, we need not address the merits of this argument. MCR 7.205(D)(4). In any event, as we have discussed, the DEQ not only had the authority to issue an order to restore, it was required to do either that or report the matter to the Attorney General. MCL 324.30315(1).
Affirmed.
Petitioners purchased the home in 1999. A permit had been issued to a previous owner in 1984 to construct the house in a wetland. The permit issued by the former Department of Natural Resources required that the driveway, garage, and walkway between the garage and house, as well as the house itself, be constructed above grade on piling foundations. Around 1990, a subsequent owner constructed an unauthorized addition to the garage. To resolve the statutory violation of building without a wetland permit issued pursuant to part 303 of the Natural Resources and Environmental Protection Act, MCL 324.30301 to 324.30323, that owner agreed to pay a fine and remove the unauthorized addition, including the pilings, and to revegetate the area. Apparently, the garage pad and girders were removed, but some or all of the pilings were not. | [
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COOPER, J.
Defendant Regina Maureen MacIntyre appeals as of right a trial court order denying her motion to vacate an arbitration award under the domestic relations arbitration act (DRAA)* and granting plaintiff Patrick Joseph MacIntyre’s motion to enter the judgment of divorce. On appeal, defendant challenges only the decision of the arbitrator and trial court to award sole physical custody of the parties’ minor child, Patrick Mathew MacIntyre (“Patty”), to plaintiff. Defendant contends that this determination was not in the best interests of the child pursuant to MCL 722.23. Defendant also contends that the trial court erred by merely conducting a de novo review of the arbitration hearing record, rather than conducting a de novo hearing regarding the custody issue. We vacate the judgment in part and remand to allow the trial court to conduct a de novo evidentiary hearing regarding the best interests of the minor child.
I. FACTS AND PROCEDURAL HISTORY
Following a difficult and hostile fourteen-year marriage, plaintiff filed for divorce on June 25, 2002. During the subsequent acrimonious divorce proceedings, the parties agreed to binding arbitration under the DRAA regarding several issues, including child custody. After a three-day hearing, the arbitrator found that Patty had an established custodial environment with both parents. The arbitrator determined that, pursuant to MCL 722.23, factors b, e, g, h, j, and k favored plaintiff, while factors a, c, d, f, and 1 favored neither party. On the bases of a best interests analysis and the fact that defendant had been uncooperative during the divorce proceedings in facilitating the interim joint custody arrangement, the arbitrator awarded sole physical custody to plaintiff.
Defendant subsequently moved for the trial court to vacate that portion of the arbitration award pertaining to custody and conduct a de novo hearing pursuant to MCL 600.5080. Defendant asserted that the arbitrator failed to consider all the evidence in conducting the best interests analysis. The trial court instead conducted a de novo review of the record and entered the judgment of divorce consistent with the arbitrator’s decision. This appeal followed.
II. REVIEW OF ARBITRATION AWARD REGARDING CHILD CUSTODY
Defendant contends that, pursuant to the DRAA, the trial court was required to conduct a de novo hearing to consider her challenge to the arbitrator’s award of custody before denying her motion to vacate the arbitration award. Furthermore, defendant contends that the trial court erred in denying her motion to partially vacate the award.
We review the trial court’s choice, interpretation, or application of existing child custody law for clear legal error. In relation to child custody cases, we review the trial court’s findings of fact pursuant to the “great weight of the evidence” standard, and discretionary rulings, including the court’s ultimate determination of custody, for an abuse of discretion. We review a trial court’s determination on a motion to enforce, vacate, or modify an arbitration award de novo.
Two subsections of the DRAA provide the standards and procedures for a circuit court’s review of an arbitration award upon a party’s motion to vacate or modify that award. MCL 600.5080 provides for the review of an arbitration award regarding child custody, child support, and parenting time as follows:
(1) Subject to subsection (2), the circuit court shall not vacate or modify an award concerning child support, custody, or parenting time unless the court finds that the award is adverse to the best interests of the child who is the subject of the award or under the provisions of section 5081.
(2) A review or modification of a child support amount, child custody, or parenting time shall be conducted and is subject to the standards and procedures provided in other statutes, in other applicable law, and by court rule that are applicable to child support amounts, child custody, or parenting time.
(3) Other standards and procedures regarding review of arbitration awards described in this section are governed by court rule.[ ]
MCL 600.5081 provides for the review of an award regarding any other subject. The statute enumerates four grounds upon which the trial court must vacate the arbitration order. If the trial court determines to vacate an award under this subsection, the court may order a rehearing, either before a new arbitrator or in the trial court. Defendant challenges the arbitration award by asserting that the arbitrator failed to consider all the evidence in making her determination. As this is not an enumerated ground for vacation in § 5081 and as defendant is challenging the award based on custody, defendant’s motion to vacate is subject only to § 5080. Therefore, we must determine what review of a child custody award is required by “the standards and procedures provided in other statutes, in other applicable law, and by court rule ....”
The Michigan Supreme Court recently held in Harvey v Harvey that “[r]egardless of the type of alternative dispute resolution that parties use, the Child Custody Act requires the circuit court to determine independently what custodial placement is in the best interests of the children.” The Child Custody Act governs all custody proceedings. When the parties to a domestic relations dispute agree to a custody arrangement or proceed under the DRAA, “the court [must] satisfy itself concerning the best interests of the children. When the court signs the order, it indicates that it has done so. A judge signs an order only after profound deliberation and in the exercise of the judge’s traditional broad discretion.” The Supreme Court made clear in Harvey that the circuit court has the ultimate power to determine the best interests of a child.
A circuit court’s duty with regard to a child custody case cannot be changed by the parties’ stipulation to participate in binding arbitration. “[A] circuit court is generally not bound by stipulations or agreements concerning child custody.” If a court does enter the parties’ stipulated agreement regarding custody, the court must still determine that the agreement is in the best interests of the child. An agreement to enter into binding arbitration that includes a determination of custody can be treated no differently. When the parties agree to submit to binding arbitration, the trial court does not become automatically bound by determinations regarding child custody that arise from that agreed-upon procedure. The trial court must independently determine that the arbitrator’s award is in the best interests of the child.
As the DRAA was not enacted until 2001, there is sparse case law regarding its provisions. However, this Court has repeatedly considered a trial court’s duty to review a Friend of the Court (FOC) referee’s determinations pursuant to the Friend of the Court Act (FOCA). In determining to enter a custody award based on the best interests of a child, a trial court may not “rely on the testimony and evidence from the referee’s hearing and... limit the taking of further testimony . .. .” Child custody matters involve “diffi cult and Solomon-like decisions” requiring “a full and fair hearing by a judge . . .. ” The trial court may not rely on the referee’s findings of fact when those findings are unsupported by the evidence placed before the court. “ ‘The trial judge remains “in duty bound to exercise his own judgment on properly received evidence ____” ’ ”
Although the FOCA specifically indicates that a de novo hearing is required upon request, we do not find the DRAA’s silence in this regard dispositive. It is clear from the long history of child custody case law that a trial court must make the ultimate determination regarding the best interests of the child. A trial court’s decision must be informed and made after careful deliberation. Such a decision must occur, if requested by a party, following a full and fair hearing during which the court is able to hear the evidence for itself. We find that a de novo review of the record of an arbitration proceeding is clearly insufficient for a trial court to use to make this difficult determination. The trial court, therefore, erroneously declined defendant’s request for a de novo evidentiary hearing and based its determination regarding the best interests of the parties’ minor child solely on the arbitrator’s findings of fact and the evidence presented at the arbitration hearing. Accordingly, we find that the trial court is “duty bound to exercise [its] own judgment” by conducting a de novo hearing to determine what custody arrangement would be in the child’s best interests.
Vacated in part and remanded for a de novo evidentiary hearing regarding the best interests of the minor child. We do not retain jurisdiction.
MCL 600.5070 et seq.
During the later years of their marriage, plaintiff actually resided in a mobile home parked in the backyard of the marital home.
Foskett v Foskett, 247 Mich. App 1, 4-5; 634 NW2d 363 (2001).
Id. at 5.
Tokar v Albery, 258 Mich App 350, 352-353; 671 NW2d 139 (2003).
MCL 600.5080 (emphasis added).
Specifically the statute provides for the vacation of the award if:
(a) The award was procured by corruption, fraud, or other undue means.
(b) There was evident partiality by the arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing a party’s rights.
(c) The arbitrator exceeded his or her powers.
(d) The arbitrator refused to postpone the hearing on a showing of sufficient cause, refused to hear evidence material to the controversy, or otherwise conducted the hearing to prejudice substantially a party’s rights. [MCL 500.5081(2).]
MCL 600.5081(5).
Harvey v Harvey, 470 Mich 186; 680 NW2d 835 (2004).
Id. at 187, citing MCL 722.21 et seq.
Id. at 189, citing MCL 722.26.
Id. at 192-193 (emphasis added), citing MCL 552.513(2), MCL 600.5080(1), and Greene v Greene, 357 Mich 196, 202; 98 NW2d 519 (1959).
Sirovey v Campbell, 223 Mich App 59, 82; 565 NW2d 857 (1997), citing Koron v Melendy, 207 Mich App 188, 191; 523 NW2d 870 (1994). See also Lombardo v Lombardo, 202 Mich App 151, 160; 507 NW2d 788 (1993) (“Parties to a divorce judgment cannot by agreement usurp the court’s authority to determine suitable provisions for the child’s best interests.”); Napora v Napora, 159 Mich App 241, 246; 406 NW2d 197 (1986) (“Although stipulations are favored by the judicial system and are generally upheld, a parent may not bargain away a child’s right by agreement with a former spouse.” [Citation deleted.]
Sirovey, supra at 83.
This Court did recently remand a trial court’s custody determination following an arbitration award pursuant to the DRAA for a de novo hearing to consider the best interests of the children. Bayati v Bayati, 264 Mich App 595;_NW2d_(2004). In Bayati, this Court held:
The language of MCL 600.5080 clearly mandates that the trial court conduct a review of the arbitrator’s custody decision under the same framework provided in other statutes such as the Child Custody Act, MCL 722.21 et seq. Harvey [supra at 191-193.] Indeed, the Michigan Supreme Court has specifically stated that no matter what type of alternative dispute resolution is used by the parties, the Child Custody Act requires the trial court to independently determine what custodial placement is in the best interests of the children. Id. at 187. Because the trial court was required to review the best interests factors regarding custody and erred in entering judgment before independently deciding the best interests of the children, we must vacate the custody order and remand to the trial court for a de novo hearing on the best interests of the children. Id. at 191-192. [Bayati, supra at 595.]
MCL 552.501 et seq. Pursuant to the FOCA, circuit courts are to use FOC referees to expedite certain domestic relations matters. MCL 552.508. However, “[t]he court shall hold a de novo hearing on any matter that has been the subject of a referee hearing, upon the written request of either party or upon motion of the court.” MCL 552.507(5).
Crompton v Crompton, 178 Mich App 362, 363; 443 NW2d 419 (1989), citing Truitt v Truitt, 172 Mich App 38,43; 431 NW2d 454 (1988).
Id. at 364.
Truitt, supra at 44.
Id. at 43, quoting Nichols v Nichols, 106 Mich App 584, 588; 308 NW2d 291 (1981), quoting Brugel v Hildebrandt, 332 Mich 475, 484; 52 NW2d 190 (1952).
As the trial court has yet to mate an independent determination regarding the best interests of the child, we need not consider defendant’s challenges to the analysis of the best interest factors. | [
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PER CURIAM.
Defendant Department of Treasury appeals by right the trial court’s order granting summary disposition for plaintiff Rayovac Corporation, holding that Rayovac was not liable for payment of the Michigan single business tax (SBT), MCL 208.1 et seq., for the period July 1, 1989, through June 30, 1993. Plaintiff cross-appeals the same order. We reverse.
The trial court ruled that the Commerce Clause, US Const, art I, § 8, cl 3, prohibited defendant from collecting the SBT from plaintiff, a Wisconsin seller of batteries in Michigan, because plaintiffs Michigan sales staff was too small to create a “substantial nexus” between the corporation and Michigan. The court noted that the presence in Michigan of three salespersons and one midwestern manager, who solicited, but did not accept or approve, orders, did not provide the required substantial nexus. Defendant argues that plaintiffs sales staff need not be substantial to create a sufficient nexus between it and Michigan so as to permit the imposition of the SBT. We agree.
We review de novo the issues presented, both because summary disposition was granted and because the issues exclusively involve statutory and constitutional interpretation. Studier v Michigan Pub School Employees’ Retirement Bd, 260 Mich App 460, 467; 679 NW2d 88 (2004); Alan Custom Homes, Inc v Krol, 256 Mich App 505, 507; 667 NW2d 379 (2003).
In Gillette v Dep’t of Treasury, 198 Mich App 303; 497 NW2d 595 (1993), this Court addressed when defendant may assess the SBT on the sales activity of a nonresident company in the face of a claim that the assessment violates the Due Process Clause or the Commerce Clause. Due process requires a definite link, or some minimum connection, between the state and the entity or transaction it seeks to tax. Gillette, supra at 311-312, citing Quill Corp v North Dakota, 504 US 298, 306; 112 S Ct 1904; 119 L Ed 2d 91 (1992). Here, the parties recognize that plaintiff maintained sufficient contacts with Michigan to satisfy Fourteenth Amendment due process requirements. But, “[a] tax that withstands a due process challenge will not necessarily withstand a Commerce Clause challenge.” Gillette, supra at 313. The Commerce Clause “prohibits discrimination against interstate commerce ... and bars state regulations that unduly burden interstate commerce.” Quill, supra at 312.
We agree with the trial court that if the SBT imposed here survives scrutiny under the Commerce Clause it will resolve the issues presented in this case. “A tax will sustain a Commerce Clause challenge when it: (1) is applied to an activity with a substantial nexus with the taxing state, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services provided by the state.” Gillette, supra at 313, citing Complete Auto Transit, Inc v Brady, 430 US 274, 279; 97 S Ct 1076; 51 L Ed 2d 326 (1977), and Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400, 415; 488 NW2d 182 (1992).
In Quill, the United States Supreme Court reaffirmed its holding in Nat’l Bellas Hess, Inc v Illinois Dep’t of Revenue, 386 US 753, 758; 87 S Ct 1389; 18 L Ed 2d 505 (1967), that an out-of-state seller whose only contacts within the taxing state were by mail or other common carrier lacked the “substantial nexus” required by the Commerce Clause. Quill, supra at 312. The Court noted that the Commerce Clause draws a sharp distinction between sellers who have a physical presence in the taxing state and those who do not. Id. at 311-312, citing Nat’l Geographic Society v California Bd of Equalization, 430 US 551, 559; 97 S Ct 1386; 51 L Ed 2d 631 (1977). The bright-line physical presence requirement of Bellas Hess furthers the purpose of the Commerce Clause by prohibiting undue burdens on interstate commerce and creating a safe harbor for vendors who only market their products to customers in the taxing state by common carrier or the United States mail. Quill, supra at 314-315. Thus, whether a state may impose a tax on an out-of-state seller “may turn on the presence in the taxing State of a small sales force, plant, or office.” Id. at 315; see, also, Gillette, supra at 313.
Although Quill established a bright-line test to determine when a substantial nexus does not exist (when a vendor’s only contact with a state is through mail order or common carrier), it left open how much physical presence is necessary to satisfy the Commerce Clause. See Magnetek Controls, Inc v Dep’t of Treasury, 221 Mich App 400, 407 n 5; 562 NW2d 219 (1997). The “slightest presence” of an out-of-state seller in the taxing state is insufficient to meet a standard of substantial nexus. Quill, supra at 315 n 8. So, Quill’s licensing of software and “the existence in North Dakota of a few floppy diskettes to which Quill holds title” did not provide the “substantial nexus” required by the Commerce Clause. Id. But this Court found a substantial nexus existed when a nonresident seller had “a sales staff of at least eighteen full-time sales representatives located in Michigan, it had an ownership interest in promotional and replacement merchandise located in Michigan, [and] leased automobiles for its sales representatives in Michigan. . ..” Gillette, .supra at 314.
Of course, plaintiffs contacts with Michigan are much less than those found sufficient to satisfy the Commerce Clause in Gillette. The question we must decide is whether plaintiffs Michigan sales staff of four is only the “slightest presence” insufficient to satisfy the Commerce Clause, or the “small sales force” the Supreme Court noted would be sufficient to provide a “substantial nexus” to a taxing state. We find this Court’s analysis in Magnetek, albeit of a different fact situation, to be instructive. The Magnetek Court reasoned that Quill should be interpreted to preserve the bright-line rule by not giving any consideration to the substantiality of the physical presence of the sales force and, instead, finding that the presence of any sales force at all provides “more than a ‘slightest presence’ in [a] stated,” so that the substantial nexus will be found. Magnetek, supra at 410-412, citing In re Orvis Co, Inc v Tax Appeals Tribunal of the State of New York, 86 NY2d 165, 176-178; 654 NE2d 954 (1995). Any other approach would negate the bright-line rule and invite chaos from a lack of certainty regarding precisely what size or character of a sales force would meet the standard. Magnetek, supra at 410, citing Orvis, supra at 177.
Plaintiff argues that Magnetek is inapposite because it addressed whether a Michigan company is immune from the SBT for that portion of its sales outside the state. We disagree. The nature of Magnetek’s contacts with other states was important because its sales to customers in states where Magnetek “is not taxable” are considered to be Michigan sales for the purpose of the SBT. MCL 208.52(c); Magnetek, supra at 404. To avoid the SBT, Magnetek would have to be subject to the other state’s taxing jurisdiction “regardless of whether, in fact, the state does or does not” impose a tax. MCL 208.42; Magnetek, supra at 404. Accordingly, the constitutional question presented in Magnetek is identical to the constitutional question here: whether an out-of-state seller has sufficient contacts with another state to satisfy the “substantial nexus” requirement of the Commerce Clause permitting the other state to tax the out-of-state seller. Moreover, we find the reasoning of Magnetek persuasive without regard to whether it is deemed to control this case pursuant to MCR 7.215(C)(2).
We reject plaintiffs argument that the statutory definition of “business activity” creates an additional jurisdictional limit restricting the imposition of the SBT. MCL 208.31(1) imposes “a specific tax upon the adjusted tax base of every person with business activity in this state that is allocated or apportioned to this state” at a specified percentage. See Trinova Corp v Dep’t of Treasury, 433 Mich 141, 149-153; 445 NW2d 428 (1989), and Gillette, supra at 308-310. Pertinent to plaintiffs argument, MCL 208.3(2) defines “business activity” as
a transfer of legal or equitable title to or rental of property, whether real, personal, or mixed, tangible or intangible, or the performance of services, or a combination thereof, made or engaged in, or caused to be made or engaged in, within this state, whether in intrastate, interstate, or foreign commerce, with the object of gain, benefit, or advantage, whether direct or indirect, to the taxpayer or to others, but shall not include the services rendered by an employee to his employer .... [Emphasis added.]
Plaintiffs argument fails because its Michigan sales representatives were engaged in arranging the transfer of legal or equitable title of property “with the object of gain, benefit, or advantage” to plaintiff. Plaintiffs personnel within this state conducted “business activity,” creating a substantial nexus for the purpose of imposing the SBT. See Gillette, supra at 314; see, also, MCL 208.52(a) which provides: “Sales of tangible personal property are in this state [if] ... the property is shipped or delivered to a purchaser ... within this state .. ..”
We conclude that the activity of plaintiffs sales personnel within this state established a substantial nexus with this state under the Quill Court’s “bright-line” rule as clarified by Magnetek. Indeed, the nexus here is considerably more substantial than that in Magnetek, in which the seller’s only contacts with the potential taxing states at issue were the presence of a “general manager and product-line sales managers [expending] at least ten business days or two weeks of ‘solid effort’ annually” in those states. Magnetek, supra at 405. Of course, under the Quill bright-line rule, the comparative extent of contacts establishing a substantial nexus is not significant, provided those contacts are more than the “slightest presence.” Id. at 411.
Our disposition of this issue renders unnecessary our consideration of the two remaining issues defendant raises.
With regard to plaintiffs cross-appeal, we disagree with its assertion that the trial court entered summary disposition in favor of defendant on the majority of its claims. In fact, the trial court’s order reveals that, in granting summary disposition for plaintiff and denying summary disposition to defendant, the trial court focused on whether a sufficient nexus existed between plaintiff and Michigan to permit defendant to impose the SBT. The Court found that plaintiffs alternative arguments lacked merit. This did not constitute an entry of summary disposition for defendant.
We agree with the trial court that the issues plaintiff raised below and on cross-appeal do not provide an alternative basis for granting summary disposition in its favor. The retroactive application of the SBT for the tax years at issue does not discriminate against or unconstitutionally burden interstate commerce. See Harper v Virginia Dep’t of Taxation, 509 US 86; 113 S Ct 2510; 125 L Ed 2d 74 (1993); Syntex Laboratories v Dep’t of Treasury, 233 Mich App 286; 590 NW2d 612 (1998). Moreover, defendant is not estopped from retroactively applying the new rule created by case law simply because it had issued revenue administrative bulletins advising taxpayers of what the then-applicable rule was. Contrary to what plaintiff asserts, defendant did not “bait and switch.” Cf. Newsweek, Inc v Florida Dep’t of Revenue, 522 US 442; 118 S Ct 904; 139 L Ed 2d 888 (1998). In addition, plaintiff has no vested right to continued application of a particular taxing standard, so it cannot claim that imposition of the SBT constitutes unfair and unjust treatment. Syntex Laboratories, supra at 293. Finally, defendant was not barred by the doctrine of laches from retroactively applying the SBT because plaintiff cannot show hardship as a result of the delay. See Speaker-Hines & Thomas, Inc v Dep’t of Treasury, 207 Mich App 84, 91; 523 NW2d 826 (1994), and Amway Corp v Dep’t of Treasury, 176 Mich App 285, 294-295; 438 NW2d 904 (1989), vacated in part and remanded on other grounds 433 Mich 908 (1989).
We reverse and remand for entry of summary disposition in favor of defendant. We do not retain jurisdiction.
Plaintiff also incorrectly argues that defendant was required by MCL 24.203(6) to follow its earlier statements of the law as set out in the revenue administrative bulletins. MCL 24.203(6) is part of the Administrative Procedures Act, which does not apply to revenue administrative bulletins. The revenue division act at MCL 205.3(f) authorizes the bulletins, and nothing in that act makes them binding on defendant in the face of contrary judicial decisions. | [
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SAWYER, J.
We are asked in this case to determine whether the doctrine that staffing decisions of private hospitals are not subject to judicial review precludes all such review, including claims brought under statutes such as the Civil Rights Act. We hold that the doctrine does not preclude such claims and reverse in part the trial court’s grant of summary disposition dismissing all the plaintiffs various claims against defendant.
Plaintiff is a physician with staff privileges at defendant hospital. The individual defendants hold various administrative posts as the hospital. This action has its roots in a dispute between plaintiff and the hospital administration regarding various standing orders that plaintiff wrote with respect to his patients. Specifically, plaintiff directed the nursing staff, as part of the admissions process, to inquire of patients which medications they were taking at home and how they were taking those medications. Plaintiff explains that, in his experience, patients often do not take medications according to the instructions of the prescribing physician. He indicated that he believed he needed to know how the medications were actually being used by the patients, not merely how the patients were supposed to be taking the medications.
The hospital administration reacted unfavorably to these standing orders. In fact, the nursing staff was directed to ignore the instructions. It was suggested to plaintiff that he raise the issue administratively, apparently with the end purpose of a uniform policy being adopted if merit was found in plaintiffs request. Although plaintiff pursued this route, it did not result in the adoption of a policy incorporating plaintiffs standing orders. The dispute was renewed. Ultimately, plaintiff was placed on indefinite probation, as well as a referral being made for a psychological examination of plaintiff (which plaintiff reports did not result in the diagnosis of a mental illness). Plaintiff thereafter instituted this action, filing multiple claims against defendants.
The trial court granted summary disposition for the defendants, citing the doctrine of judicial nonreviewability of the staffing decisions of private hospitals, as well as statutory immunity arising from the referral of a physician for medical evaluation. Specifically, the trial court opined as follows:
Each of Plaintiffs claims arise out of activity involving a peer/professional review committee. Defendant asserts MCL 331.531 as a basis for immunity from liability. MCL 331.531 grants immunity to hospitals such as Defendant, which act within their scope as a review entity, as did the Defendants in this case.
Plaintiff is correct that the immunity granted under the statute is “qualified” immunity, that is, immunity only where no malice has occurred, not “complete” immunity as asserted by the Defendants. However, no clear and convincing proof of malice can be found in Plaintiffs brief. Furthermore, according to both Regualos v. Community Hos, 364 N.W2d 723, 726 [140 Mich App 455 (1985)], and Hoffman v. Garden City Hospital — Osteopathic, 321 N.W2d 810 [115 Mich App 773 (1982)], decisions of governing bodies of private hospitals cannot be subjected to judicial review. Therefore, Summary Disposition should be granted pursuant to MCR 2.116(C)(8) upon the basis of the “Michigan Peer Review Statute” (MCL 331.531).
It is clear that all causes of action in this case arise from the activity of the Defendants’ peer review board and thereby subjected to the said Peer Review Statute. Therefore, all other issues regarding Summary Disposition of this case need not be addressed.
Because the trial court placed the greater emphasis on the peer review statute, we shall begin our analysis there. MCL 331.531 provides in pertinent part as follows:
(1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider.
(2) As used in this section, “review entity” means 1 of the following:
(a) A duly appointed peer review committee of 1 of the following:
(iii) A health facility or agency licensed under article 17 of the public health code, 1978 PA 368, MCL 333.20101 to 333.22260.
(3) A person, organization, or entity is not civilly or criminally liable:
(a) For providing information or data pursuant to subsection (1).
(b) For an act or communication within its scope as a review entity.
(c) For releasing or publishing a record of the proceedings, or of the reports, findings, or conclusions of a review entity, subject to sections 2 and 3.
(4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice.
We turn first to plaintiffs allegations regarding violations of various civil rights acts. Plaintiffs complaint included counts alleging violations of the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq., the Americans With Disabilities Act, 42 USC 12101 et seq., the federal civil rights act, specifically 42 USC 1983 and 1985, and the Vocational Rehabilitation Act, specifically 29 USC 794. Even if the trial court is correct that all of plaintiffs claims arise out of the actions of a peer review committee, the peer review statute does not grant immunity for those actions that violate a civil rights act.
We base this determination on two reasons. First, the peer review statute only grants immunity for “an act or communication within [the peer review committee’s] scope as a review entity.” MCL 331.531(3)(b). It is not within the scope of a peer review committee to violate someone’s civil rights. There is no indication in the various civil rights acts at issue here that peer review committees were excluded from the scope of those acts, nor is there any indication that the peer review statute intended to exclude peer review committees from compliance with the various civil rights acts. Indeed, the fact that immunity under the peer review statute is not absolute is reflected by the fact that § 4 denies immunity to a person, organization, or entity that acts with malice.
Which brings us to the second reason, namely, that we view a violation of a civil rights act as being a malicious act. The following portion of the definition of “malice” from Black’s Law Dictionary (5th ed) is particularly apt in this situation: “Malice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.” The various civil rights acts adopted by the state Legislature and the United States Congress establish the legal rights of the citizens, including plaintiff. If defendants acted in disregard of those rights, doing so represents a malicious act and, therefore, is outside the scope of immunity granted by the peer review statute.
We pause here to address an obvious flaw that permeates defendants’ brief on appeal and, to a lesser extent, the trial court’s opinion. That flaw is the argument raised that plaintiff is unable to factually support his claims. This is demonstrated by the following passage from defendants’ brief on appeal discussing the malice issue: “After reviewing the facts and record before it, the trial court then concluded that ‘no clear and convincing proof of malice can be found in Plaintiff’s brief.’ ” (Emphasis supplied by defendants.) But summary disposition was granted under MCR 2.116(C)(8) (failure to state a claim), not C(10) (no genuine issue of material fact). Furthermore, the trial court’s analysis was even more narrow in that it did not even determine if plaintiff had adequately pleaded violations of the various civil rights acts. Rather, the trial court limited its decision to whether plaintiff had adequately pleaded in avoidance of the immunity granted by the peer review statute and in avoidance of the doctrine of judicial nonreviewability of staffing decisions by private hospitals. Therefore, the question whether plaintiff can factually support his claims of civil rights violations is not before us, nor, for that matter, is the question whether plaintiff even adequately plead those causes of action.
The only question before us in this appeal, with respect to the counts of the complaint that allege the statutory civil rights violations, is whether a claim of such a violation falls outside the scope of immunity granted by MCL 331.531. For the reasons stated above, we conclude that it does. Accordingly, the trial court erred in granting summary disposition under MCR 2.116(C)(8) with respect to counts I through IV of plaintiffs complaint on the basis of the immunity granted by MCL 331.531.
Additionally, plaintiffs complaint contains allegations of invasion of privacy (count V), breach of fiduciary and public duties (count VI), and breach of contract (count VII). The invasion of privacy count is based on plaintiffs allegations that the hospital’s Executive Committee, acting on recommendations by the ad hoc investigating committee, referred plaintiff to the state’s Health Professional Recovery Program (HPRP). Plaintiff alleges that he cooperated with the referral, submitting to a psychiatric evaluation, which determined that there was no mental health or substance abuse disorder and no reason for plaintiff to participate in an HPRP program.
Count VI (breach of fiduciary and public duties) is somewhat more tenuous. Plaintiff alleges that defendant hospital has a duty to its staff and the community at large to operate the hospital in the interest of public health care and in a manner that permits the staff to meet its professional obligations to patients. Plaintiff alleges that defendants violated these duties by suppressing dialogue and debate among the staff regarding patient care issues, by ignoring the hospital and medical staff bylaws, by improperly influencing members of hospital and staff committees, by intimidating plaintiff, by referring plaintiff to the HPRR by conspiring to prevent medical staff from documenting errors in medical care, by retaliating against plaintiff, and by taking disciplinary action against plaintiff.
Count VII (breach of contract) specifically alleges that the medical staff bylaws constitute a contract and that defendants repeatedly breached that contract by ignoring unspecified procedural requirements of the bylaws and by committing other unspecified violations of the bylaws.
Turning first to count V the referral to the HPRP by the Executive Committee would clearly come within the scope of a peer review committee’s actions and, although plaintiff alleges that the referral proved unnecessary, plaintiffs complaint raises no allegations in this count that would indicate that the referral was maliciously made. Therefore, our focus turns to plaintiffs argument that the Executive Committee does not constitute a peer review committee under the statute and, therefore, is not entitled to the immunity the statute affords. MCL 331.531(2) (a) does not define “review entity” with specificity or limitation. Indeed, the only restrictions imposed by the statute regarding what constitutes a “review entity” under the statute is that it must be a “duly appointed peer review committee” of one of the institutions listed in the statute. It is undisputed that the hospital is such an institution. Plaintiff, however, disputes that the Executive Committee has been “duly appointed” as a peer review committee. In response, defendants only argue that the ad hoc committee formed to investigate the allegations against plaintiff made by the hospital constitutes a “duly appointed review committee” under the medical staff bylaws. Paragraph 57 of plaintiffs complaint, however, alleges that it is the Executive Committee, not the ad hoc committee, which made the HPRP referral that is the basis for the allegations in count V The ad hoc committee’s status as a peer review committee grants that committee immunity, but that does not make the Executive Committee a peer review committee and, therefore, does not grant the Executive Committee immunity. We do note that summary disposition to the individual defendants with regard to count V would be appropriate to the extent that the only basis for their liability would be their participation in the ad hoc committee’s investigation and the recommendations made to the Executive Committee.
Turning to count VI, we begin by noting that the allegations of duties and breaches of those duties are so vague and nebulous that we are skeptical that count VI could survive a motion under MCR 2.116(C)(8) that directly attacks whether it states a claim in its own right. But, as noted above, the trial court granted summary disposition on the narrow ground that the claim does not survive the grant of immunity under the peer review statute. In this respect, the allegations do not appear to allege liability based on the actions of the ad hoc committee, the only entity that defendant has identified as being a duly appointed peer review committee. Therefore, summary disposition based on the peer review statute was improper.
Turning to count VII, in which, as in count VI, the allegations are extremely vague, we are once again skeptical that it could survive a motion for summary disposition if the motion were decided on broader grounds than that employed by the trial court. But the allegations in this count, such as they are, clearly implicated activity beyond that of the ad hoc committee. Accordingly, plaintiff states (or attempts to state) a cause of action that is broader than the activity that would come within the statutory grant of immunity. Therefore, while summary disposition of this count may ultimately prove appropriate, it is not appropriate on the ground given by the trial court with respect to the immunity granted by the peer review statute.
Having concluded that, with the possible minor exception of claims against individual members of the ad hoc committee under count V of the complaint, summary disposition under the grant of immunity in the peer review statute was improper, we turn to the other basis cited by the trial court, the doctrine of nonreviewability of staffing decisions by private hospitals. Although, given the state of the law in this area, the trial court’s conclusions are understandable, a careful examination of the doctrine and its historical roots reveals that its applicability is not so broad as to prevent plaintiffs cause of action in this case.
The doctrine that staffing decisions at private hospitals are not subject to judicial review has its roots in Michigan jurisprudence in the case of Hoffman v Garden City Hosp — Osteopathic, 115 Mich App 773; 321 NW2d 810 (1982), which in turn adopted the decision in Shulman v Washington Hosp Ctr, 222 F Supp 59 (D DC, 1963), remanded with instructions 121 US App DC 64; 348 F2d 70 (1965), affd on reh 319 F Supp 252 (D DC, 1970), concluding that “the decisions of the governing bodies of private hospitals are not subject to judicial review.” Hoffman, supra at 778. A review of this principle, however, reveals that there is not a sweeping judicial abstinence from reviewing decisions of private hospitals as suggested by some of the more recent cases and by the trial court in the case at bar. Rather, it is the much more limited proposition that private hospitals are not subject to the same review that would be given a public hospital. That is, a private hospital is a private employer, not a public employer, and should be treated like a private employer. Therefore, while a private hospital is not subject to the same scrutiny as a public employer in terms of whether the constitutional rights of its employees were violated, the doctrine does not create any greater insulation from scrutiny than that enjoyed by any other private employer.
The issue in Hoffman and related cases was whether a private hospital should be treated the same as a public hospital:
Plaintiffs do not argue that the receipt of federal and local public funds by this private hospital transforms the hospital’s action into state action. Rather plaintiffs argue that this private hospital is so “affected with a public interest” as to require that its decisions on staff privileges be subject to judicial review in order to protect the public.
There are no reported cases on this issue in Michigan although our courts have dealt with it in terms of public hospitals. In Milford v People’s Community Hospital Authority, 380 Mich 49; 155 NW2d 835 (1968), the Court found a denial of due process when a public hospital restricted the privileges of a staff physician without proper standards. See also Touchton v River Dist Community Hospital, 76 Mich App 251; 256 NW2d 455 (1977). However, the Court in Milford, was careful to note the public/private distinction:
“It is to be noted that we deal here with a public hospital authority and not with a private or charitable institution.” Milford, supra, 57.
The theory that a private hospital holds a fiduciary duty to exercise its staff decisions reasonably and for the public good apparently finds its root in Greisman v Newcomb Hospital, 40 NJ 389; 192 A2d 817 (1963). In that case a private hospital refused to accept an application for admission to its courtesy staff from an osteopathic physician....
The plaintiff filed suit attacking the validity of the bylaws provision. The defendants argued the hospital was private and could exercise its discretion without judicial interference. The Court rejected the argument, finding instead that the hospital was so “affected with a public interest” as to allow judicial intervention when appropriate. Although Greisman dealt solely with a bylaw provision it has subsequently been applied to discretionary decisions. Davis v Morristown Memorial Hospital, 106 NJ Super 33; 254 A2d 125 (1969). [Hoffman, supra at 776-778.]
The Hoffman Court, however, rejected this approach and relied on the decision in Shulman.
In one of the earlier and one of the strongest statements on this issue, the Court in Shulman ... concluded that the decisions of the governing bodies of private hospitals are not subject to judicial review. As in the case at bar, Shulman involved a suit against a private hospital questioning the power and authority of a hospital to preclude a physician from membership on the staff of the hospital. The Court stated:
“We now reach the specific question involved in the case at bar, namely, whether a private hospital has power to appoint and remove members of its medical staff at will, and whether it has authority to exclude in its discretion members of the medical profession from practicing in the hospital. The overwhelming weight of authority, almost approaching unanimity, is to the effect that such power and authority exist. The rule is well established that a private hospital has a right to exclude any physician from practicing therein. The action of hospital authorities in refusing to appoint a physician or surgeon to its medical staff, or declining to renew an appointment that has expired, or excluding any physician or surgeon from practicing in the hospital, is not subject to judicial review. The decision of the hospital authorities in such matters is final.” 222 F Supp 63. [Hoffman, supra at 778-779.]
We do see in Hoffman the sweeping statement that “the decisions of the governing bodies of private hospitals are not subject to judicial review.” Id. at 778. But, if we look at the underpinnings of these decisions, we see that the principle is not quite so sweeping after all.
The plaintiff in Shulman was a member of the defendant hospital’s “Courtesy Staff,” an appointment that must be renewed annually. Dr. Shulman’s appointment was not renewed in 1963, prompting the suit against the hospital. Shulman, supra at 61, began its analysis by addressing the question of the status of a private hospital:
A private hospital is one that is owned, maintained and operated by a corporation or an individual without any participation on the part of any governmental agency in its control. The fact that a hospital is operated for the benefit of the public and not for profit, does not detract from its character as a private institution, if it is established and maintained by a private corporation or individual with authority to elect or appoint its own officers and directors.
This distinction between public and private institutions was formulated by the Court of Appeals of Maryland in Levin v Sinai Hospital of Baltimore City, 186 Md 174,178; 46 A2d 298, 200 [1946], in the following manner:
“The essential difference between a public and a private corporation has long been recognized at common law. A public corporation is an instrumentality of the State, founded and owned by the State in the public interest, supported by public funds, and governed by managers deriving their authority from the State. Public institutions, such as State, county and city hospitals and asylums, are owned by the public and are devoted chiefly to public purposes. On the other hand, a corporation organized by permission of the Legislature, supported largely by voluntary contributions, and managed by officers and directors who are not representatives of the State or any political subdivision, is a private corporation, although engaged in charitable work or performing duties similar to those of public corporations. ... So, a hospital, although operated solely for the benefit of the public and not for profit, is nevertheless a private institution if founded and main tained by a private corporation with authority to elect is own officers and directors....”
Shulman, supra at 62, then discusses the fact that private hospitals are not burdened by the same restrictions or obligations imposed upon a public hospital:
A private hospital is not a public utility in the legal sense of that term. Neither is the operation of the hospital a public calling, such as that of a common carrier, light or power companies, or a telephone company....
Thus, it was said in Van Campen v. Olean General Hospital, 210 App. Div. 204, 205 N.Y.S. 554, 558, affirmed 239 N.Y. 615, 147 N.E. 219:
“The law does not require a corporation like defendant to furnish its services and accommodations to every one who applies, whether patient or physician. There can be no absolute right in individuals to claim the benefit of its privileges. Such a thing would be impossible. There must be discretion vested in the management to make selection from applicants with regard to accommodations available. It may reject one who has some trivial ailment, and accept another whose needs are greater.”
In Levin [supra at 180], it was stated:
“A private hospital is not under a common law duty to serve everyone who applies for treatment or permission to serve. In the absence of statute, it may accept some applicants and reject others.”
Shulman, supra at 63, then reaches its conclusion on this point, which was quoted by Hoffman. Not quoted by Hoffman, however, was the following “exception” noted by Shulman:
The only possible exception is in a case in which there is a failure to conform to procedural requirements set forth in its constitution, by-laws, or rules and regulations. In that event the extent of judicial review is to require compliance with the prescribed procedure. Beyond that, the courts do not interfere. In the instant case, the by-laws, which are a part of the record on this motion, do not provide any specific procedure. [Shulman, supra at 63.]
What the plaintiff in Levin, as well as the plaintiffs in the other cases relied on by Shulman, sought to do was to have the private hospital at which they enjoyed staff privileges to be subjected to a greater burden to justify its employment decisions than the ordinary private employer. That is, they were arguing that, despite the fact the hospital was a private entity, it should be subjected to the same scrutiny to which a public employer is subjected. It was this principle that was rejected in the early cases.
Support for the view that the nonreviewability doctrine, while including the principle that private hospitals are not subject to the same burdens as public hospitals, does not grant private hospitals any special immunity with respect to staffing decisions can be found by reviewing those earlier cases relied on by Shulman. In Levin, supra at 179-180, the Maryland Court of Appeals stated:
It is not necessary on this appeal to consider the question of the extent of a physician’s constitutional right to practice his profession in a public hospital. The powers and duties of the officers of a public institution are regulated by statute or municipal ordinance. The powers and duties of the officers of a private corporation are regulated by its charter, constitution and by-laws. It is a general rule that a court of equity will not interfere with the internal management of a corporation, unless the act complained of is fraudulent or ultra vires... . We hold that a private hospital has the right to exclude any physician from practicing therein, and such exclusion rests within the sound discretion of the managing authorities. .. .A private hospital is not under a common law duty to serve everyone who applies for treatment or permission to serve. In the absence of statute, it may accept some applicants and reject others. Likewise, the directors of a private hospital corpo ration, having power to appoint members of its medical staff, have the authority to remove them from the staff. It has never been the policy of the State of Maryland to interfere with the power of the governing body of a private hospital to select its own medical staff....
In Maryland a court of equity may properly grant injunctive relief to protect a physician in his right to treat his own patients in a hospital where its constitution and by-laws accord him that right, and also to pass upon the validity of asserted amendments to the constitution and by-laws for the purpose of determining his right to such relief.. ..
It is important to note that the Levin court did not distinguish between the responsibilities of public and private hospitals, but between public and private institutions. The private hospital was not accorded special protection, rather, merely a recognition that it enjoys the same right to be free from governmental intrusion that any private corporation enjoys, but which a public institution may not.
This point is further illustrated by the Virginia Supreme Court’s decision in Khoury v Community Mem Hosp, Inc, 203 Va 236, 245; 123 SE2d 533 (1962), another case relied on by Shulman, in which the court stated:
The hospital was established pursuant to a charter, granted by the Commonwealth, conferring upon its public spirited organizers the right and authority to operate as a private corporation. That charter is a contract between the state and the incorporators. One of the unwritten provisions of that contract is that the trustees of the corporation shall have the right to conduct its affairs as they might, in their sound discretion, see fit. Inherent in the charter is the understanding that, except as provided by law, the state will not interfere in the corporation’s internal affairs.
We are of the opinion that when the trustees of a private hospital, in their sound discretion, exclude a doctor from the use of the facilities of the hospital, the courts are without authority to nullify that discretion by injunctive process. There are no constitutional or statutory rights of the doctor, or of his patients who wish to be treated in the hospital by him, which warrant such interference.
The final question to be determined is whether Dr. Khoury was accorded a fair hearing relative to the denial of staff privileges in the hospital.
Since we have held that Dr. Khoury had no contractual, constitutional or statutory right to the use of the hospital facilities, and since the trustees acted in their sound discretion to deny him such use, we are of the opinion that he was not entitled to a hearing with respect to his exclusions therefrom. We need not consider, therefore, whether the hearing which was accorded him was a fair one. [Citations omitted.]
It is noteworthy that the court did not say that there could not be a contractual or statutory right that the doctor could enforce because the hospital enjoyed absolute immunity from review of its staffing decisions. Rather, it decided that there were no such rights conferred by contract, statute or constitution, and therefore there was no basis for the doctor to obtain judicial review of the staffing decision. Indeed, Dr. Khoury had raised a contract claim, which the court rejected not on the basis of the nonreviewability doctrine, but under a traditional contract analysis. Id. at 242-244.
The following observation by the Appellate Division of the Superior Court of New Jersey illustrates the contrast with the line of cases that stands for the proposition that there is a role for judicial intervention in staffing decisions of private hospitals. After acknowledging that the role of judicial review in such cases is limited, the court in Zoneraich v Overlook Hosp, 212 NJ Super 83, 90-91; 514 A2d 53 (1986), commented as follows:
A non-profit hospital, even though not governmental, is hardly private. It exists to furnish vital health care; its funds come in good part from public and charitable sources; its activities are closely regulated. Hospital boards manage quasi-public trusts, and have a fiduciary relationship with the public. Berman v Valley Hospital, 103 N.J. 100 [510 A2d 673] (1986); Doe v. Bridgeton Hosp Ass’n, Inc, 71 N.J. 478 [366 A2d 641] (1976), cert den 433 US. 914; 97 S.Ct. 2987; 53 L.Ed.2d 1100 (1977).
In Guerrero v. Burlington County Mem Hospital, 70 N.J. 344 [360 A2d 334] (1976), the Supreme Court of New Jersey drew heavily upon the administrative agency model to construct a framework for judicial review of hospital decisions. It articulated the need to accommodate the economic interests and procedural rights of the physicians, the expertise of hospital authorities and the desirability of permitting them to exercise their reasonable management judgment in the public interest, and the need for judicial alertness to strike down action that is unreasonable, discriminatory or unfair. The Court concluded that initial reliance should be placed on internal hospital tribunals and remedies to strike the needed balances, and that judicial participation should arise only on a limited basis.
Although state action is not involved and constitutional due process requirements do not apply, Garrow v. Elizabeth General Hospital and Dispensary, 79 NJ 549, 563-564 [401 A2d 533] (1979); See Mendez v. Belton, 739 F2d. 15 (1 Cir. 1984); Loh-Seng Yo v. Cibola General Hospital, 706 F2d 306 (10 Cir. 1983), a physician is entitled to fundamentally fair procedures in a non-profit hospital’s consideration of staff membership, the extent of privileges and termination. Notice must be given of charges or proposed hospital action before hearing. Guerrero, supra, 70 N.J. at 359. A qualified right to counsel exists, and a right to disclosure, limited by recognition of competing rights to privilege and confidentiality. Garrow, supra, 79 N.J. at 566-568. The tribunal must be fair and unbiased.
The contrast between the Shulman line of cases and the Zoneraich line is not that Shulman established special immunity for private hospitals from review of its staffing decisions. Rather, it is that the Zoneraich cases establish a special burden on private hospitals, not shared by other private entities, which burden requires treating them more like public institutions.
Returning to the Michigan cases, as further cases arose, there was a jurisprudential drift of that core holding. In Dutka v Sinai Hosp of Detroit, 143 Mich App 170; 371 NW2d 901 (1985), the Court rejected a claim by a physician who was denied staff privileges. Dr. Dutka held the position of office assistant to a staff surgeon, a position that held limited staff privileges. Although Dutka was allegedly assured that he would at some point be elevated to the active staff, he was later asked to withdraw his application. After exhausting his internal remedies, he filed suit, requesting specific performance of an implied contract or, in the alternative, money damages. Relying on Hoffman, the Court held that a decision to deny staff privileges was not subject to judicial review. In doing so, however, the Court made a somewhat cryptic observation that “while plaintiff has attempted to plead an action in contract, our reading of the complaint leads us to the conclusion that he actually is seeking judicial intervention into the decision of a private hospital to deny him staff privileges.” Dutka, supra at 175. The Court then concluded that, even if a contract claim had been adequately pleaded, the only implied contract was one to consider his application for staff privileges, not one to grant him staff privileges. Thus, although somewhat unclear, Dutka appears to hold to the earlier view of the issue, namely, that staffing decisions at private hospitals are not subject to the judicial review and equitable relief that would potentially be available in such claims against a public employer. A breach of contract claim, however, is still subject to the traditional analysis, an analysis that would need to be employed with respect to any such claim against a private employer.
Next, in Veldhuis v Central Michigan Community Hosp, 142 Mich App 243; 369 NW2d 478 (1985), the Court reviewed a case of a physician losing staff privileges at a private hospital. The Court rejected the physician’s claim, relying on Hoffman. While that aspect is unremarkable, the Court also rejected the plaintiffs claim that MCL 333.21513, which, in part, requires the organization of physicians into a medical staff in order to accommodate effective review of the staff, requires a guarantee of procedural due process. The Court did so not only on the basis that nothing in the statute required that the physician be granted due process, but also that if the statute did create such a requirement, it would run afoul of the Hoffman rule that precludes judicial review of private hospital’s staffing decisions. Veldhuis, supra at 246-247. Left undiscussed by Veldhuis, however, is exactly how a judicially created rule can render a statutorily imposed rule unenforceable. Thus, not only does Veldhuis expand the nonreviewability doctrine beyond its original intent, it does so in a way that expands judicial power and encroaches upon legislative authority.
This Court next considered the Hoffman doctrine in Bhogaonker v Metropolitan Hosp, 164 Mich App 563; 417 NW2d 501 (1987), in which a physician’s employment was terminated as part of a round of budget cuts. The plaintiff sued, alleging breach of contract and similar claims. This Court, similarly to that in Dutka, concluded that although the “plaintiff alleged breach of contract in this case, it is clear beyond peradventure that plaintiff is actually seeking judicial intervention into a decision of a hospital to terminate his employment as a physician due to economic necessity. Such a decision is not subject to review by the circuit court.” Bhogaonker, supra at 566. Thus, while broadening the application of Hoffman to an explicit breach of contract claim, the Bhogaonker Court nevertheless felt compelled to state that the plaintiffs claim was not a breach of contract claim.
The principle was expanded even further in Sarin v Samaritan Health Ctr, 176 Mich App 790; 440 NW2d 80 (1989), in which this Court rejected claims alleging breach of contract, tortious interference with a contract, and tortious interference with a business relationship, relying on Hoffman and Veldhuis. With respect to the latter case, Sarin specifically quoted from the portion of the Veldhuis opinion that rejected the claim of a violation of statute as being inconsistent with Hoffman. The Sarin Court also explicitly relied on Dutka and Bhogaonker, finally reaching this conclusion:
While there may be some situations where a court should be able to consider a hospital’s action without violating the principle of nonreviewability, this case is not of that sort. Plaintiffs various claims revolve around questions regarding who the hospital review proceedings advanced, the composition of the board, its sources of information, claimed inaccurate information, and the actual decision to suspend and terminate his privileges. Moreover, plaintiffs tort claims are based on alleged violations of the bylaws. Thus, we believe the trial court properly concluded that it could not review plaintiffs claims without intervening in the hospital’s decision and interfering with the peer review process. In so ruling, we repeat our adherence to and support of the rule that prohibits judicial review of the action of a private hospital in denying staff privileges to a doctor. [Sarin, supra at 795.]
This Court did limit the expansion of the doctrine of nonreviewability somewhat in Long v Chelsea Commu nity Hosp, 219 Mich App 578; 557 NW2d 157 (1996). After reviewing the basic principle that a private hospital’s staffing decisions are not subject to judicial review, the Court made the following observations:
The above law is limited to disputes that are contractual in nature. We decline to articulate a broad principle that a private hospital’s staffing decision may never be judicially reviewed. Indeed, in doing so, we reiterate the proposition from Sarin that, under some circumstances, a court may consider a hospital’s decisions without violating the nonreviewability principle. Sarin, supra at 795. Private hospitals do not have carte blanche to violate the public policy of our state as contained in its laws. Had plaintiff in this case asserted that defendants violated state or federal law, we may have chosen to review his claim. In this case, however, plaintiff did not assert a violation of civil rights or a violation of a state statute. The same is true in some of the cited cases.
Further, previous decisions support this reasoning. In Hoffman, supra, this Court quoted with approval the proposition that hospital authorities may refuse to appoint a physician to its medical staff, may decline to renew an expired contract, and may exclude a physician from practicing in the hospital — all without judicial review of those decisions. [Long, supra at 586-587.]
While the Long Court correctly observed that the nonreviewability doctrine does not preclude consideration of a violation of law, such as a claim under a civil rights act, it erroneously followed Sarin in suggesting that a claim of a breach of contract or breach of bylaws claim cannot be maintained.
Plaintiff further argues that his claim is not a constitutional due process argument, but rather is based on a breach of defendants’ bylaws, and thus this Court should review it. Plaintiffs claim on this issue fails in light of Sarin. A breach of contract and breach of bylaws claim would necessarily invoke a review of the hospital’s decision to terminate its employees. Sarin, supra at 794. [Long, supra at 588.]
Long did, however, step back from making the principle as encompassing as the above quotation makes it sound, acknowledging that a claim of breach of bylaws might be maintained in the proper case.
Plaintiff next argues that his circumstances fall within the exception outlined in Sarin: “[T]here may be some situations where a court should be able to consider a hospital’s action without violating the principle of nonreviewability ....” Id. [at 795.] Because plaintiff failed to provide a copy of the bylaws required under MCR 2.113(F)(1), this Court has no way of reviewing whether the exception applies. [Long, supra at 588.]
The failure in Long, like Sarin and other cases, is that it does not examine the roots of the principle of nonreviewability and discover that a breach of the bylaws is recognized as an exception to the principle. Moreover, while Long accepts the concept that the principle applies to breach of contract claims, it overlooks the origins of the doctrine and that the doctrine was not intended to apply to contract claims. Thus, when the plaintiff in Long argued that “his claim is not a constitutional due process argument, but rather is based on a breach of defendants’ bylaws, and thus this Court should review it,” id., the plaintiff was exactly correct when the principle is viewed in its original incarnation.
The nonreviewability doctrine was aptly summarized by the Tennessee Supreme Court in Lewisburg Community Hosp v Alfredson, 805 SW2d 756, 759 (1991):
We conclude that Hospital staffing decisions involving specialized medical and business considerations are entitled to deference from the courts; however, in the words of the Court of Appeals:
“Like any other legal entity, hospitals are capable of breaching contracts, committing torts, or violating others’ constitutional or statutory rights. When they do, they are no less subject to the courts’ jurisdiction than anyone else. [Alfredson v Lewisburg Community Hosp, 1989 Tenn App Lexis 746; 1989 WL 134739 Tenn Ct App.].”
In sum, while some of the decisions of this Court have drifted from the formulation of the nonreviewability doctrine, that doctrine, when viewed in historical perspective, stands for the modest proposition that a private hospital is subject only to the legal obligations of a private entity, not to the greater scrutiny of a public institution. It is subject to the same potential civil liability of any private corporation that violates an employment statute, breaches a contract, or the like.
In terms of Michigan law, only the Long decision is precedentially binding. And that decision is clear on the point that private hospitals are subject to the various civil rights acts. Accordingly, the trial court improperly dismissed counts I through IV of plaintiffs complaint on the basis of the nonreviewability doctrine as that doctrine does not apply to alleged statutory violations.
With respect to count V (invasion of privacy), the Long decision is silent on the issue of tort liability of private hospitals. Accordingly, we are free to remain true to the original scope of the nonreviewability doctrine and conclude, as did the Court in Alfredson, that private hospitals are capable of committing torts and, when they do, are as subject to be held liable as any other private corporation. Accordingly, we conclude that summary disposition was improperly granted on the basis of the nonreviewability doctrine on this count as well.
Turning to count VI (breach of fiduciary and public duties), this count seems to be related to the heart of what the nonreviewability doctrine was designed to address — claims that hold private hospitals to a higher standard than other private corporations, seeking to impose a public duty akin to public hospitals. Accordingly, we conclude that the trial court did correctly apply the nonreviewability doctrine to this count.
Finally, as for count VII (breach of contract based on a violation of hospital bylaws), it is unclear whether Long would control. Long did not directly address this issue, concluding that the breach of bylaws claim was not adequately pleaded. But the Long Court did state that a breach of contract or breach of bylaws claim is potentially viable if it does not violate the nonreviewability doctrine. As discussed above, in our view, breach of contract and breach of bylaws claims do not violate the doctrine unless they seek to impose greater liability on a private hospital than what another private employer would be subject to under the law. The question whether Michigan law recognizes a breach of contract claim based on the breach of corporate bylaws is not before us; therefore, we need not address that issue. Because the trial court broadly applied the nonreviewability doctrine to conclude that no breach of contract derived from a breach of bylaws could be maintained, the trial court erred in granting summary disposition on that basis. The trial court may consider summary disposition of this count on another basis, but we caution the trial court that it cannot be granted on the basis that private hospitals enjoy a special immunity from such claims. Rather, private hospitals are subject to the same breach of contract claims as any other private corporation. Therefore, if the issue is again raised, the trial court must determine whether a breach of contract claim may be based on a corporation’s violation of its own bylaws under Michigan law. If the answer to that question is “yes,” and if plaintiff has adequately pleaded such a claim, the claim is viable despite the nonreviewability doctrine. But plaintiffs claim does not lack viability merely because the defendant is a private hospital rather than some other private corporation.
In sum, the trial court properly granted summary disposition on count VI (breach of fiduciary and public duties) and on those nonstatutory claims that are based on the actions of the ad hoc committee while acting in its role as a peer review committee.
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs, no party having prevailed in full.
Smolensk!, J., concurred.
To the extent that any of the specific violations alleged by plaintiff not specifically attributed to the ad hoc committee is, in fact, attributable to the actions of that committee, then summary disposition regarding that portion of the claim would be appropriate, and the trial court may remove that subissue from further consideration. | [
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ZAHRA, J.
Relying on a forum-selection clause in a loan agreement allegedly executed by the litigants, plaintiff sought and obtained an arbitration award in California and subsequently obtained a California judgment confirming the arbitration award. Plaintiff commenced this action in Michigan to enforce the California judgment. At issue is whether the Michigan trial court erred in examining the alleged agreement to determine whether a valid contract existed that gave the California court jurisdiction over defendants. We hold that the court properly examined the agreement to determine jurisdiction. Because the trial court properly determined that a valid contract was never formed and that the California court consequently lacked personal jurisdiction over defendants, the court did not err in granting defendants’ motion to quash the California judgment. We affirm.
I. PACTS AND PROCEDURE
In 2001, defendants sought to refinance their commercial property, a funeral home located in Livonia, Michigan. They contacted a mortgage broker, who put them in touch with plaintiff, a California mortgage broker. Plaintiff sent defendants a loan approval letter (the loan agreement) and a good-faith estimate of closing costs. The loan agreement indicated that it was not valid unless it was accepted by defendants no later than July 13, 2001. The loan agreement included a clause that provided for liquidated damages in an amount equal to a percentage of the loan amount in the event of cancellation or breach of the agreement. The agreement also included an addendum containing an arbitration agreement, which stated that all disputes must be resolved in Sacramento County, California, by an arbitrator applying California law. The agreement had an integration clause providing that the loan approval letter and its addendum constituted the final expression of the agreement.
On the good-faith estimate of closing costs, defendants crossed out and reduced the amount of the mortgage broker’s commission from 3.5 percent to 1.5 percent and initialed the change. Defendants did not make the same change to the loan agreement. Defendants signed the loan agreement, the addendum, and the good-faith estimate of closing costs on July 26,2001, and returned the documents to plaintiff. At some point, defendants’ change to the good-faith estimate of closing costs was crossed out, and the mortgage broker’s commission was restored to its original amount of 3.5 percent. The parties dispute whether this change was made by defendants or plaintiff. In any case, plaintiff ultimately signed the documents that were returned by defendants. Defendants maintain that they did not subsequently hear from plaintiff and eventually arranged for financing through another broker.
When defendants failed to refinance through plaintiff, plaintiff sought recovery under the liquidated damages clause of the agreement. Plaintiff filed an arbitration demand in California, relying on the arbitration agreement addendum to the loan agreement. Following an arbitration hearing in June 2002, which defendants did not attend, the arbitrator issued an award for plaintiff. Plaintiff subsequently filed a petition to confirm the arbitration award in the Superior Court of California. On December 5, 2002, the California Superior Court in Sacramento County confirmed the award and issued a judgment for plaintiff in the amount of $61,500.
Plaintiff commenced this action in the Wayne Circuit Court to enforce the California judgment. Defendants filed a motion to quash the judgment, arguing that the California court lacked jurisdiction to enter the judgment because a valid contract did not exist between the parties. The trial court examined the parties’ transaction and determined that defendants had materially altered the terms of plaintiffs original offer when they changed the number of points they were willing to pay to the mortgage broker, resulting in a counteroffer. The court further determined that plaintiff rejected defendants’ counteroffer by crossing out defendants’ change and reinserting the original terms and that plaintiff never obtained defendants’ assent to the original terms. Therefore, the court concluded that a valid contract never existed between the parties. Further, the court determined that the alleged agreement was the only basis for requiring arbitration and allowing a California court to assert personal jurisdiction over defendants. Because a valid contract never arose, defendants could not be required to arbitrate, and the California court lacked personal jurisdiction over defendants. Accordingly, the trial court concluded that the California judgment was void and unenforceable.
II. ANALYSIS
Plaintiff first argues that the transaction was governed by the Federal Arbitration Act (FAA), 9 USC 1 et seq., because the loan agreement contained an arbitration clause. However, plaintiff has failed to adequately brief this issue or point to specific language from the FAA supporting its position. “An appellant may not merely announce its position or assert an error and leave it to this Court to discover and rationalize the basis for its claims, unravel or elaborate its argument, or search for authority for its position.” Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 499; 668 NW2d 402 (2003). “Insufficiently briefed issues are deemed abandoned on appeal.” Etefia v Credit Technologies, Inc, 245 Mich App 466, 471; 628 NW2d 577 (2001). Therefore, we decline to address this argument.
Plaintiff next argues that the trial court erred by reexamining the merits of the arbitrator’s decision in deciding whether to give full faith and credit to the California judgment. Our consideration of this issue requires review of the Uniform Enforcement of Foreign Judgments Act (UEFJA), MCL 691.1171 et seq., as well as the Full Faith and Credit Clause of the United States Constitution, US Const, art iy § 1. Questions of statutory interpretation are reviewed de novo. Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004). Constitutional questions are also reviewed de novo. Id. This case also requires us to review the trial court’s jurisdictional ruling, which is similarly reviewed de novo. Jeffrey v Rapid American Corp, 448 Mich 178, 184; 529 NW2d 644 (1995).
We interpret the UEFJA “to effectuate its general purpose to make uniform the law of those states which enact it.” MCL 691.1178. The UEFJA provides, in pertinent part:
The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court, the district court, or a municipal court of this state. A judgment filed under this act has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of the circuit court, the district court, or a municipal court of this state and may be enforced or satisfied in like manner. [MCL 691.1173.]
A “foreign judgment” is “any judgment... of a court of the United States or of any other court that is entitled to full faith and credit in this state.” MCL 691.1172. “The Full Faith and Credit Clause requires that a foreign judgment be given the same effect that it has in the state of its rendition.” Jones v State Farm Mut Automobile Ins Co, 202 Mich App 393, 406; 509 NW2d 829 (1993). Although the Full Faith and Credit Clause requires recognition of the judgments of sister states, “collateral attack may be made in the courts of this [sjtate by showing that the judgment sought to be enforced was void for want of jurisdiction in the court which issued it.” Delph v Smith, 354 Mich 12, 16; 91 NW2d 854 (1958), quoting Johnson v DiGiovanni, 347 Mich 118, 126; 78 NW2d 560 (1956).
The Due Process Clause of the Fourteenth Amendment limits the jurisdiction of state courts to enter judgments affecting the rights or interests of nonresident defendants. Kulko v California Superior Court, 436 US 84, 91; 98 S Ct 1690; 56 L Ed 2d 132 (1978). As a result, a valid judgment affecting a nonresident’s rights or interests may only be entered by a court having personal jurisdiction over that defendant. Int’l Shoe Co v Washington, 326 US 310, 319; 66 S Ct 154; 90 L Ed 2d 95 (1945). [Jeffrey, supra at 185.]
The United States Constitution does not compel Michigan courts to give a foreign judgment full faith and credit when the jurisdiction of the foreign court has been successfully attacked. California v Max Larsen, Inc, 31 Mich App 594, 597-598; 187 NW2d 911 (1971). Thus, to be enforceable under the UEFJA, the foreign judgment must have been entered by a court with jurisdiction over the parties and the subject matter.
In Offerdahl v Silverstein, 224 Mich App 417, 420; 569 NW2d 834 (1997), this Court stated:
A contractual forum selection clause, though otherwise valid, may not be enforced against one not bound by the contract. Just as the courts have jurisdiction to determine the threshold issue whether a party is bound to arbitrate pursuant to an agreement, we believe the courts of the state “where the cause of action arose,”[ ] have jurisdiction to determine the threshold issue whether a party is bound by the contract, and, accordingly, any forum selection and choice-of-law provision in the contract. [Citations omitted.][ ]
Thus, where a party asks a Michigan court to enforce a forum-selection or choice-of-law provision of a contract that would give another state personal jurisdiction over the parties, the Michigan court may examine whether a binding agreement exists in order to determine whether the forum-selection or choice-of-law provision is enforceable. Therefore, we must determine whether a Michigan court can examine the validity of a contract and its forum-selection clause when a court from a different state has previously relied on the forum-selection clause for personal jurisdiction over the parties and has entered a judgment.
Courts from other jurisdictions have held that the state in which a foreign judgment is sought to be enforced may examine the validity of the agreement to determine whether the foreign court had jurisdiction to enter the judgment. For example, in Firedoor Corp of America v Tibshraeny Bros Constr, Inc, 126 Ariz 392, 393; 616 P2d 67 (Ariz App, 1980), the parties entered into a contract for the defendant to furnish doors for a construction project. A dispute developed, and the plaintiff commenced arbitration proceedings in New York for the unpaid contract balance, which resulted in a default award for the plaintiff. The plaintiff moved to confirm the arbitration award in a New York trial court and obtained a judgment for the amount awarded by the arbitrator. The defendant did not participate in those proceedings. An Arizona trial court subsequently denied the plaintiffs petition to enforce the New York judgment, finding that the parties’ contract did not contain an agreement to arbitrate.
On appeal, the plaintiff did not contest the trial court’s finding that the contract did not contain an agreement to arbitrate. Rather, it argued that the foreign judgment was immune from challenge by another court. The appellate court disagreed, concluding that a foreign judgment may be attacked on the ground of a lack of personal or subject-matter jurisdiction. Because the claim of personal jurisdiction of the New York court over the defendant was wholly dependent on the alleged agreement to arbitrate, the Arizona court did not violate the principles of full faith and credit or Arizona’s UEFJA, ARS 12-1701 et seq., by determining that the New York judgment was void for want of jurisdiction. Firedoor, supra at 394. The court concluded that “[u]nder these circumstances, the finding by the arbitrator that there existed an agreement to arbitrate was not an adjudication to which [the defendant] was bound, and the resulting New York judgment was not a final determination of the issue which could bar inquiry” by a foreign court being asked to enforce the New York judgment. Id.
Similarly, in Copeland Planned Futures, Inc v Obenchain, 9 Wash App 32, 33-34; 510 P2d 654 (1973), the defendants signed a promissory note that, unlike prior notes executed between the parties, contained a provision for a New York simplified dispute resolution procedure. When the defendants later failed to pay the note, the plaintiff commenced an action under the simplified dispute resolution procedure and eventually obtained a default judgment against the defendants. Opposing the plaintiffs efforts to enforce the New York judgment in Washington, the defendants argued that they did not consent to the contractual provision and that the alleged contract was invalid because it was not supported by consideration. The Washington Court of Appeals held:
When a state’s jurisdiction over the person of a defendant, whether domiciliary or not, is based on the latter’s consent, the sister state in which the judgment is sought to be enforced may reexamine the validity of the consent on which claimed jurisdiction rests. This is true even though the existence of that consent was an issue triable or tried in the state in which the original judgment was entered. [Id. at 37.][ ]
In order to determine whether the New York judgment was entitled to full faith and credit, the court considered the merits of the defendants’ claim that, because the clause stating that disputes would be resolved using the New York simplified dispute resolution procedure had not been included in any of the other notes previously executed between the parties, the defendants did not consent to New York jurisdiction when one of the defendants signed the note. Id. at 38.
Here, we similarly conclude that the trial court properly examined whether a contract existed between the parties in order to determine whether the California court had jurisdiction to enter the judgment for plaintiff. The fact that defendants’ jurisdictional argument was dependent on whether a contract existed between the parties did not transform it into an improper attack on the merits of the underlying judgment. As in both Firedoor and Copeland, the question whether the foreign court had personal jurisdiction over defendants was dependent on whether there was a valid agreement between the parties. Because the alleged loan agreement contains both an arbitration clause and a clause consenting to California jurisdiction, the California judgment was enforceable only if defendants entered into a contract with plaintiff. We therefore conclude that, in the context of this action to enforce a foreign judgment under the UEFJA, the trial court did not err by inquiring whether a valid contract was executed between the litigants in order to determine whether the California court had personal jurisdiction over defendants.
The trial court concluded that because there was no valid contract between the parties that required arbitration in California, the California court lacked personal jurisdiction over defendants and the California judgment was therefore void. Plaintiff argues that the trial court erred in failing to recognize the existence of a valid contract for several reasons. Plaintiff argues that the good-faith estimate of closing costs was not part of the contract and that the trial court erred in refusing to recognize that the loan agreement and arbitration clause alone, which defendants signed without modification, constituted a valid contract. However, the agreement plaintiff seeks to enforce specifically states:
This loan approval letter shall have no force or effect whatsoever unless it is accepted by the borrower(s) no later than July 13, 2001[,] and until it is countersigned by an officer of Blackburne & Brown. After July 13, 2001, please call your loan officer.
“An offer comes to an end at the expiration of the time given for its acceptance.” Pakideh v Franklin Commercial Mortgage Group, Inc, 213 Mich App 636, 640-641; 540 NW2d 777 (1995). Defendants did not sign and return the loan approval letter until July 26, 2001. “An offeree cannot accept, either through words or deeds, an offer that has lapsed.” Id. at 641. Further, there is no indication here that plaintiff communicated to defendants that it was going to waive the expiration date contained in the loan agreement. “[A]n offeror cannot waive the lapse of his offer simply by choosing to disregard it.” Id. Therefore, by signing the loan agreement, modifying and signing the good-faith estimate of closing costs, and returning those documents to plaintiff after plaintiffs offer had expired, defendants were not accepting plaintiffs lapsed offer, but were merely extending an offer for further negotiations, or, at best, a counteroffer. Although plaintiffs employee signed the documents, any acceptance of defendants’ counteroffer by plaintiff was not communicated to defendants. Nothing else suggests that plaintiff manifested an acceptance of defendants’ counteroffer. See In re Costs and Attorney Fees, 250 Mich App 89, 96-97; 645 NW2d 697 (2002) (“ ‘Under the principles governing contracts, an acceptance sufficient to create a contract arises where the individual to whom an offer is extended manifests an intent to be bound by the offer, and all legal consequences flowing from the offer, through voluntarily undertaking some unequivocal act sufficient for that purpose.’ Kraus v Gerrish Twp, 205 Mich App 25, 45; 517 NW2d 756 (1994), affd in part and remanded in part on other grounds 451 Mich 420; 547 NW2d 870 (1996).”) Further, plaintiff never performed the agreement by refinancing defendants’ loan. Therefore, the trial court correctly determined that the parties never entered a valid contract.
Plaintiff next argues that the trial court violated the parol-evidence rule when it examined the good-faith estimate of costs in deciding whether there was a valid agreement between the parties. “The parol evidence rule may be summarized as follows: £[p]arol evidence of contract negotiations, or of prior or contemporaneous agreements that contradict or vary the written contract, is not admissible to vary the terms of a contract which is clear and unambiguous.’ ” UAW-GM Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 492; 579 NW2d 411 (1998), quoting Schmude Oil Co v Omar Operating Co, 184 Mich App 574, 580; 458 NW2d 659 (1990). Here, no contract was ever formed, so the good-faith estimate of closing costs did not contradict or vary the terms of an agreement. Instead, it was merely part of defendants’ negotiations or counteroffer. Therefore, the parol-evidence rule does not apply in this case.
Plaintiff also argues that defendants were not entitled to rescind the arbitration agreement because, even if the contract were procured by fraud, defendants failed to take affirmative action to rescind the fraudulent contract. Plaintiff failed to raise this argument in the trial court.
“Generally, this Court will not review issues that were not raised and decided by the tried court. However, there are exceptions to this general rule. This Court will review issues not raised below if a miscarriage of justice will result from a failure to pass on them, or if the question is one of law and all the facts necessary for its resolution have been presented, or where necessary for a proper determination of the case.” [Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004), quoting Providence Hosp v Nat’l Labor Union Health & Welfare Fund, 162 Mich App 191, 194-195; 412 NW2d 690 (1987) (citations omitted).]
We will briefly address this argument, as it involves a question of law and all the facts necessary for resolution have been presented.
Plaintiff is correct that “ ‘a person . . . who has been defrauded, must act promptly; and, if he would repudiate the contract, he must do nothing in affirmance of it after ascertaining the facts.’ ” LeRoy Constr Co v McCann, 356 Mich 305, 309; 96 NW2d 757 (1959), quoting Merrill v Wilson, 66 Mich 232, 243; 33 NW 716 (1887). However, the trial court did not conclude that defendants could rescind the contract because of fraud; rather, it determined that the alleged contract was void because it was never formed in the first place. Accordingly, plaintiffs argument that defendants were “not entitled to rescission is irrelevant and without merit.” G P Enterprises, Inc v Jackson Nat’l Life Ins Co, 202 Mich App 557, 566; 509 NW2d 780 (1993).
Next, plaintiff argues that the trial court erred in determining that the California court did not have personal jurisdiction over defendants, because defendants had sufficient minimum contacts with California, independent of the loan agreement’s forum-selection clause, to establish personal jurisdiction in California. Under the Due Process Clause, in order for a court to acquire personal jurisdiction over a nonresident defendant, there must be sufficient minimum contacts with the forum state.
“First, the defendant must have purposefully availed himself of the privilege of conducting activities in [the forum state], thus invoking the benefits and protections of this state’s laws. Second, the cause of action must arise from the defendant’s activities in the state. Third, the defendant’s activities must be substantially connected with [the forum] to make the exercise of jurisdiction over the defendant reasonable.” [Jeffrey, supra at 186, quoting Modzy v Lopez, 197 Mich App 356, 359; 494 NW2d 866 (1992).]
The minimum-contacts requirement protects a defendant from having to litigate in a distant or inconvenient forum, and “ensures that a state does not extend its judicial power beyond the limits imposed on all states by our federal system of government.” Jeffrey, supra at 186, citing World-Wide Volkswagen Corp v Woodson, 444 US 286, 292; 100 S Ct 559; 62 L Ed 2d 490 (1980). “The primary focus of personal jurisdiction is on ‘reasonableness’ and ‘fairness.’ ” Jeffrey, supra at 186. “The defendant’s own conduct and connection with the forum must be examined in order to determine whether the defendant should reasonably anticipate being haled into court there.” Jeffrey, supra at 187. Thus, “tj]urisdiction may be properly exercised over a corporate defendant when it reaches beyond its own state and purposely avails itself of the privilege of exploiting forum-based business opportunities.” Id. California’s long-arm statute allows California courts to “exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Belmont Industries, Inc v Superior Court of Stanislaus Co, 31 Cal App 3d 281, 285; 107 Cal Rptr 237 (1973), quoting Cal Civ Pro Code 410.10.
Here, defendants sought to refinance their commercial property located in Michigan. Defendants’ mortgage broker referred them to plaintiff, a California corporation. Plaintiff sent documents to Michigan, and defendants returned documents to California. Defendants also allegedly had telephone conversations with an employee of plaintiff. Plaintiff does not allege any other factual basis to support California’s jurisdiction over defendants.
In Belmont Industries, supra at 284, 288-289, the California Court of Appeals held that accepting a bid for drafting services from a California company, telephoning California, mailing documents to and from California, receiving a visit from a representative of the California company at the Pennsylvania job site, executing a purchase order, and receiving the requested drawings did not provide the minimum contacts necessary to make the Maryland corporate defendant subject to jurisdiction in California. Defendants in the present case have even less contacts with California than did the defendant in Belmont Industries.
We agree with the holding in Belmont Industries and hold that there is no basis for concluding that defendants had established sufficient minimum contacts with California to give the California court personal jurisdiction over defendants independent of the alleged loan agreement.
Affirmed.
Defendants allege that they did not receive notice of the arbitration hearing.
In the present case, the cause of action arose at least in part in Michigan, because the property defendants sought to refinance was located in Michigan.
In Offerdahl, supra at 420-421, this Court vacated the trial court’s order enforcing the forum-selection and choice-of-law provisions of a contract and remanded the case for a determination whether the defendants were bound by the alleged agreement.
Although Copeland held that a court may reexamine the validity of the consent on which claimed jurisdiction rests even when that issue was tried in the foreign jurisdiction in which the judgment was entered, Firedoor held that a foreign judgment may not be attacked on jurisdictional grounds when the foreign court has determined in a contested hearing that it has jurisdiction to enter the judgment. Here, plaintiff does not argue that the issue of jurisdiction was determined by the California court in a contested hearing. Plaintiff concedes that the arbitration award and the California judgment were both entered without a contested hearing attended by defendants. Therefore, we need not address whether a foreign judgment may be attacked on the ground of a lack of personal or subject-matter jurisdiction when the foreign court has determined in a contested hearing that it has jurisdiction.
The court held that the defendants’ failure to read the note carefully was no excuse. Copeland, supra at 38. The court also considered the merits of the defendants’ argument that there was no consideration and, therefore, no valid contract. However, the court found that the defen dants’ antecedent debt was sufficient consideration. The court added that, “[t]he New York judgment being valid, any defenses on the merits, as opposed to questions relating to jurisdiction, may not be reexamined.” Id. at 38-39.
As discussed, we reject plaintiffs contention that there was a basis for personal jurisdiction independent from the parties’ alleged agreement.
Although the trial court did not address this issue, we will briefly address this argument, as it involves a question of law and all the facts necessary for resolution have been presented. Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004).
Although the trial court explicitly declined to address this issue, we will briefly address this issue because it involves a question of law and all the facts necessary for resolution have been presented. Brown, supra at 599.
We disagree with plaintiffs argument that Belmont Industries was impliedly overruled by Burnham v Superior Court of Marin Co, California, 495 US 604, 607-608, 610-616; 110 S Ct 2105; 109 L Ed 2d 631 (1990). In Burnham, the Court held that, in accordance with longstanding precedent, a nonresident defendant who was personally served in California could not claim that California did not have jurisdiction over him because he lacked “minimum contacts” with California. Belmont Industries, however, did not involve a nonresident defendant who was personally served in the state that the plaintiff alleged had jurisdiction over him. In Burnham, supra at 618-619, the Supreme Court merely stated that, “[a]s International Shoe [Co v Washington, 326 US 310; 66 S Ct 154; 90 L Ed 95 (1945)] suggests, the defendant’s litigation-related ‘minimum contacts’ may take the place of physical presence as the basis for jurisdiction,” but physical presence is also sufficient to establish jurisdiction. Thus, Burnham, did not overrule the “minimum contacts” test, but only reaffirmed the physical presence test for acquiring personal jurisdiction over a nonresident defendant.
Defendants characterize the California judgment as a default judgment and argue that under MCL 691.1173, the California judgment may be attacked pursuant to MCR 2.603(D), governing motions to set aside default judgments, and MCR 2.612(C), governing motions for relief from judgment. However, because the trial court correctly determined that the California judgment was void for lack of personal jurisdiction over defendants, it is unnecessary to reach the broader issue whether relief from judgment, available under the court rules to challenge domestic judgments, can be considered in the context of a UEFJA action.
Because we conclude that the trial court properly determined that the California court did not have personal jurisdiction over defendants, we need not address plaintiffs argument regarding subject-matter jurisdiction. | [
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YOUNG, J.
At issue in this public labor law dispute between plaintiff Detroit Fire Fighters Association and defendant city of Detroit is whether the circuit court properly issued a preliminary injunction to prevent the implementation of defendant’s proposed layoff and restructuring plan where plaintiff contends that the plan violates the “status quo” provision of 1969 PA 312 (Act 312), MCL 423.243, by, among other things, jeopardizing the safety of the remaining firefighters. We conclude that the injunction was erroneously entered.
Where a party seeks a preliminary injunction to prevent an alleged status quo violation, a two-step process is required. First, the moving party must satisfy the traditional four-part test that is prerequisite for issuance of any preliminary injunction. Second, if the conditions of the preliminary injunction test are met and the injunction is granted, the circuit court must promptly resolve the merits of the status quo claim. Pursuant to MCR 3.310(A)(5), if a preliminary injunction is granted, a “trial of the action on the merits must be held within 6 months after the injunction is granted, unless good cause is shown or the parties stipulate to a longer period.”
The status quo provision of Act 312 prevents either party from altering, without consent, “existing wages, hours, or other conditions of employment,” which concern mandatory subjects of bargaining, while Act 312 arbitration is pending. The status quo provision does not prevent parties from exercising their contractual rights if they do not alter an existing wage, hour, or other condition of employment. In this case, it is defendant’s implementation of its restructuring and layoff plan that is at issue. Plaintiff claims that it is a change in “existing . . . conditions of employment” because it will jeopardize firefighter safety, which our precedent treats as a “condition of employment” and a mandatory subject of bargaining. Defendant, on the other hand, argues that it has the contractual right to lay off firefighters. Thus, in order for the status quo provision to be violated in this case, it must be determined that the restructuring and layoff plan actually alters a condition of employment, namely firefighter safety.
The question is what standard a circuit court must apply in order for it to determine that an employer’s challenged action actually violates the status quo provision by altering this condition of employment. The Court of Appeals in Oak Park Pub Safety Officers Ass’n v Oak Park recently adopted the standard that a staffing proposal must be “inextricably intertwined with safety” to be a mandatory subject of bargaining. We adopt this standard for circuit court review of the type of status quo violation claim presented here. A circuit court must conclude that the employer’s challenged plan is so “inextricably intertwined with safety” that its implementation would impermissibly alter the status quo by altering this “condition” of employment. The circuit court must make thorough factual findings supporting such a conclusion.
Here, not only did the circuit court fail to resolve the safety claim on the merits, it entered what amounted to a permanent injunction without applying the traditional injunctive standards. Thus, we hold that the circuit court erroneously granted injunctive relief and the Court of Appeals erroneously affirmed that decision.
Accordingly, we reverse the Court of Appeals, vacate the preliminary injunction entered by the circuit court, and remand for further proceedings consistent with this decision.
FACTS AND PROCEDURAL HISTORY
Plaintiff is the exclusive bargaining representative of eligible Detroit Fire Department (DFD) employees. Defendant is the employer. Both are parties to a collective bargaining agreement (CBA) that took effect in 1998 and expired on June 30, 2001. Until a new agreement is forged in the Act 312 arbitration, the parties continue to operate under the old CBA. That CBA states in pertinent part at Article 2.D that
[t]he City reserves the right to lay off personnel for lack of work or funds; or for the occurrence of conditions beyond the control of the Department; or when such continuation of work would be wasteful and unproductive .... [w]ages, hours and conditions of employment legally in effect on the effective date of this agreement, shall, except as improved herein, be maintained during the term of this Agreement.
In Article 14, the parties agreed that
It is not the intent of this Article to restrict, interfere with, prevent or hinder the City from carrying out its duties and responsibilities to the public well being, by way of illustration, but not limitation, those rights, duties and responsibilities enumerated in Article 2 and the Purpose and Intent clause hereof, subject to the City’s obligations under PERA [public employment relations act] and other laws.
After the CBA expired in 2001, the parties were unable to agree to a new contract. In December 2002, plaintiff invoked compulsory arbitration under Act 312 to create a successor agreement. Act 312 is meant to provide an “alternate, expeditious, effective, and binding” arbitration process. Unless otherwise agreed by the parties, Act 312 requires the arbitrator to call a hearing within 15 days of being appointed, conclude the hearing within 30 days of its commencement, and issue a written opinion within 30 days of the conclusion of the hearing. Here, the parties waived the time limitations that Act 312 imposes on the arbitration process. As a result, the “expeditious” Act 312 arbitration process is still pending after more than five years.
Defendant experienced serious budget shortfalls during the ongoing Act 312 arbitration. These difficult financial circumstances affected the operations of the DFD, leading defendant to implement a restructuring plan and a round of layoffs, effective July 1, 2005. Unfortunately, the budget problems persisted, and defendant announced, in September 2005, an additional plan to restructure the DFD. Under this plan, defendant proposed to lay off 65 firefighters, demote 10 battalion chiefs, and reduce the number of battalions from eight to five. The plan reassigned the battalion chiefs duties at “garden variety fires” to the senior officer at the scene, and deactivated five engine and ladder companies.
Plaintiff filed suit in the Wayne Circuit Court on September 12, 2005, seeking declaratory and injunctive relief to stop the September 2005 reorganization plan from going into effect while the Act 312 arbitration was pending. Plaintiff argued that unilateral implementation of the restructuring plan violated the status quo provision of Act 312 because it required unilateral alteration of minimum staffing, job duties, seniority, parity, and emergency medical service requirements, all of which affected both firefighter safety and mandatory subjects of bargaining.
The circuit court held hearings beginning in late September, and granted plaintiffs request for a preliminary injunction on October 17, 2005. The court found that there were issues of fact concerning whether the layoffs would have an impact on the safety of the firefighters — a mandatory subject of bargaining under this Court’s decision in Local 1277, Metropolitan Council No. 23, AFSCME, AFL-CIO v City of Center Line (Center Line II).
The circuit judge sent the case to the assigned Act 312 arbitrator, Michael E Long, to decide the safety issue and render his decision by October 27, 2005, at which time the circuit judge would determine if the preliminary injunction would remain in place. Although he held hearings, the arbitrator responded to the circuit court in an October 27, 2005, opinion stating that he was “not able to make any well reasoned determination as to the resolution of this dispute.” Arbitrator Long indicated that he lacked jurisdiction to decide the safety issue, observing that “[t]he normal channels were not followed regarding reference of the matter to [Act] 312 arbitration.” He sent the case back to the circuit court and recommended that the circuit court order the parties to mediation while keeping the injunction in place until the mediation process concluded.
The circuit court again granted a preliminary injunction in an October 31, 2005, order following another hearing. At this hearing the court reviewed its earlier statements and conceded:
I do want to say for the record after reading the transcript of the previous hearing of the 17th, that I felt that my choice of words was inapt because it sounded like I was making a determination that there was an impact. That is not my place to do that.
However, the circuit judge clarified, “I find that there’s a serious question of fact as to whether or not [the restructuring plan] would have an impact on fire fighters’ safety, or indeed upon working conditions or working hours.” Relying on Center Line II and Detroit Police Officers Ass’n v Detroit, the court found that the reorganization and layoff plan “may implicate mandatory provisions of collective bargaining, namely the impact on [sic] the Plan on the hours and conditions of employment (including the safety) of the members of the plaintiff.” The preliminary injunction order enjoined defendant from eliminating the battalion chiefs, ehminating the firefighting companies, and laying off the firefighters. It also ordered the parties to take all necessary steps to have the matter brought before an Act 312 panel to determine the factual questions surrounding the safely issues. The order maintained the injunction until the issuance of a final and binding Act 312 award.
The Court of Appeals affirmed the circuit court in a published decision. Observing that the parties had a duty under PERA to collectively bargain about mandatory subjects of bargaining and that layoff decisions are not mandatory subjects, the panel relied on this Court’s decision in Center Line II to hold that “where, as here, proposed layoffs and restructuring may impact the safety of working conditions for firefighters, those proposals are mandatory subjects of bargaining.” The panel agreed with the circuit court’s finding that “the evidence established ‘serious issues of fact’ as to whether the proposed changes would impact safety, working conditions and working hours,” and as a result “the proposed changes were subjects of mandatory bargaining, and defendant could not therefore make these unilateral alterations while the parties are engaged in compulsory arbitration.” It disagreed with defendant’s argument that injunctive relief was inappropriate because the terms of the CBA permitted defendant to carry out the restructuring plan.
Defendant filed an application for leave to appeal with this Court. This Court granted leave to appeal. Following oral arguments, this Court ordered supplemental briefing, and subsequently ordered reargument.
STANDARD OF REVIEW
This Court reviews a trial court’s grant or denial of a temporary injunction for abuse of discretion. There is an abuse of discretion when the trial court’s decision falls outside the range of principled outcomes. A question of statutory interpretation is a question of law that we review de novo. Finally, issues of contract interpretation are also questions of law reviewed de novo.
ANALYSIS
Public labor relations in Michigan are governed by PERA. One of PERA’s primary purposes “is to resolve labor-management strife through collective bargaining.” Under PERA a public labor union may not strike when disagreements arise in the collective bargaining process. Because public sector labor unions in Michigan lack the right to strike, they lack a significant tool to leverage their bargaining position.
By its own terms, Act 312 is “supplementary” to PERA, which was enacted over 20 years earlier. Act 312 was intended, in the specific context of police and firefighter unions, to redress the imbalance in bargaining power created by the prohibition of strikes, and to preclude the possibility of an illegal strike by these unions that provide vital public services, namely police and fire protection. As Justice COLEMAN observed:
When policemen engage in a strike, the community becomes immediately endangered by the withdrawal of their services. Likewise, our case law has often focused on the fact that fire fighters have a distinct and crucial employment relationship with a public employer.[ ]
Thus,
[u]nder Act 312, if the public employer and the police offers’ or fire fighters’ bargaining unit have not reached an agreement concerning a mandatory subject of bargaining, and mediation proves unsuccessful, either party may initiate binding arbitration in order to avert a strike.[ ]
The status quo provision of Act 312 states that
[d]uring the pendency of proceedings before the arbitration panel, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other but a party may so consent without prejudice to his rights or position under this act.[ ]
Recalling the delicate balance of bargaining power our labor statutes seek to preserve in police and firefighter labor disputes, this provision was intended to prevent either party from gaining unfair leverage during the pendency of Act 312 interest arbitration.
Under the status quo provision, neither party without consent can alter “existing wages, hours, and other conditions of employment” while Act 312 arbitration is pending. We observed in Center Line II that safety is a condition of employment and, as such, a mandatory subject of bargaining. Consequently, the status quo provision prohibits changes to an existing condition of employment such as safety during the pendency of Act 312 arbitration.
Of chief importance in a case involving an alleged status quo violation is whether an employer’s restructuring and layoff plan alters a condition of employment such as safety. The Court of Appeals recently held in Oak Park that where a union seeks to compel Act 312 arbitration with respect to staffing decisions, it must demonstrate that those decisions are “inextricably intertwined with safety” to constitute a mandatory subject of bargaining. If it does not, then the employer cannot be compelled to arbitrate the staffing decision under Act 312. The Oak Park panel rejected as “unten able” the union’s proposed alternative standard that “as long as a staffing decision arguably affects, concerns, or relates to safety — whether the effect be minimal, insignificant, or unjustifiable — the issue of staffing is a condition of employment that is subject to mandatory arbitration.” It reasoned:
The standards implemented by the hearing referee and MERC in this case are consistent with the requirement that only those matters that have a significant impact on conditions of employment are subject to mandatory bargaining. The impact of a staffing decision on working conditions, including safety, must be proven to be significant, not merely to arguably exist. ... To adopt the union’s position would be tantamount to requiring that most, if not all, minimum staffing proposals — particularly with regard to [public safety officers], police officers, firefighters, and others engaged in high-risk professions — be subject to mandatory bargaining, given that a reduction in the number of these employees will arguably have some — albeit minimal— impact on safety. Such a conclusion would have the effect of invading the city’s prerogative to determine the size and scope of its business, including the services it will provide. We decline to reach such a conclusion.[ ]
Although Oak Park addressed a different legal issue and not the status quo issue presented here, we find the logic and standard endorsed by Oak Park compelling in this context. A hasty or tentative finding that a restructuring and layoff plan violates the status quo would “invad[e] the city’s prerogative to determine the size and scope of its business, including the services it will provide,” just as surely as if every employer’s staffing decision that merely arguably affected safety conditions were subject to mandatory bargaining. Thus, whether a layoff and restructuring plan jeopardizes employee safety requires a careful examination of the plan details and a finding that the plan is “inextricably intertwined with safety” such that it would have a “significant impact” on safety.
The central problem with the circuit court’s decision in this case, and by extension the Court of Appeals decision to affirm it, is that it only found that defendant’s layoff and restructuring plan “may” implicate a mandatory subject of bargaining and that this case “raised questions of fact” about firefighter safety. After issuing the preliminary injunction, the circuit court never conclusively determined that the plan unlawfully altered the status quo. Indeed, the circuit court expressly stated that it was not deciding the merits of plaintiffs claim. And, when the circuit court attempted to induce Arbitrator Long to resolve the safety dispute, he declined to do so.
Given the magnitude of a decision to restrain an employer’s exercise of a management prerogative, this level of uncertainty in a circuit court ruling is untenable. By its terms, this injunction was to remain in place until the conclusion of Act 312 arbitration, but a determination on the merits would never have been made. On a practical level, what was termed by the circuit court a “preliminary injunction” became a de facto permanent injunction, without resolving the mer its of the alleged status quo violation. Moreover, the injunction was issued where the traditional elements required for injunctive relief had not been established. Specifically, although the circuit court found that there were “issues of fact” regarding the safety issue, it did not find that there was a likelihood of success on the merits in this regard, nor did the court conclude that the firefighters would suffer irreparable harm.
Where a party seeks a preliminary injunction to prevent an alleged status quo violation as in this case, the party must satisfy a two-step process. First, it bears the burden of proving that the traditional four elements favor the issuance of a preliminary injunction. The trial court must evaluate whether (1) the moving party made the required demonstration of irreparable harm, (2) the harm to the applicant absent such an injunction outweighs the harm it would cause to the adverse party, (3) the moving party showed that it is likely to prevail on the merits, and (4) there will be harm to the public interest if an injunction is issued.
Second, if a trial court determines that the standards for a preliminary injunction have been met and chooses to issue an injunction, it must promptly decide the merits of the status quo claim. MCR 3.310(A) governs preliminary injunctions. Subsection 5 requires that “[i]f a preliminary injunction is granted . . . [t]he trial of the action on the merits must be held within 6 months after the injunction is granted, unless good cause is shown or the parties stipulate to a longer period.”
Therefore, on remand, the circuit court must engage in this two-step inquiry. First, it must determine whether plaintiff has satisfied the traditional four-part test for a preliminary injunction, particularly that plaintiff has demonstrated a likelihood of success on the merits that the plan is “inextricably intertwined with safety” and made a showing of irreparable harm. Second, if the circuit court issues a preliminary injunction, there must be a determination on the merits that the challenged employer action is “inextricably intertwined with safety” as that standard was articulated in Oak Park. It must do more than conclude that the challenged employer action arguably affects safety. To that end, any decision by the circuit court that the employer action is “inextricably intertwined with safety” must be conclusive and supported by specific, detailed findings of fact.
CONCLUSION
We hold that the circuit court erred when it issued the preliminary injunction preventing the implementation of the restructuring plan. The circuit court issued what amounted to a permanent injunction where the underlying merits of the alleged status quo violation would never be resolved, contrary to the requirements of MCR 3.310(A)(5). We further hold that, when a safety claim is alleged, an employer’s challenged action alters the status quo during the pendency of an Act 312 arbitration only if the action is so “inextricably intertwined with safety” that the action would alter a “condition of employment.”
We reverse the Court of Appeals judgment, vacate the preliminary injunction entered by the circuit court, and remand the case to the circuit court for further proceedings consistent with this opinion.
Taylor, C.J., and Weaver, Corrigan, and Markman, JJ., concurred with YOUNG, J.
CAVANAGH, J. I concur in the result only.
277 Mich App 317, 330; 745 NW2d 527 (2007).
Section 1 of Act 312 provides, in pertinent part: “It is the public policy of this state that in public police and fire departments, where the right of employees to strike is by law prohibited, it is requisite to the high morale of such employees and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes ....” MCL 423.231 (emphasis added).
MCL 423.236.
Id.
MCL 423.238.
414 Mich 642; 327 NW2d 822 (1982).
135 Mich App 660; 354 NW2d 297 (1984), vacated 419 Mich 915 (1984).
Detroit Fire Fighters Ass’n v Detroit, 271 Mich App 457; 722 NW2d 705 (2006).
Id. at 461.
Id. at 463.
477 Mich 927 (2006). The grant order asked the parties to brief “whether the defendant may implement the restructuring plan, or lay off firefighters, before coming to an agreement with the plaintiff about the impact of those actions.”
478 Mich 1201 (2007). In this order, we asked the parties to address (1) whether Metropolitan Council No 23, Local 1277, AFSCME, AFL-CIO v Center Line, 78 Mich App 281; 259 NW2d 460 (1977) (Center Line I), correctly held that jurisdiction to enforce § 13 of Act 312, MCL 423.243, resides in the circuit court, and (2) whether the Michigan Employment Relations Commission has primary jurisdiction to enforce § 13, see Travelers Ins Co v Detroit Edison, 465 Mich 185; 631 NW2d 733 (2001). Given our resolution of this case, we do not reach the issues we asked the parties to address on reargument.
480 Mich 880 (2007).
Michigan Coalition of State Employee Unions v Civil Service Comm, 465 Mich 212, 217; 634 NW2d 692 (2001).
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Costa v Community Emergency Med Services, 475 Mich 403,408; 716 NW2d 236 (2006).
Sweebe v Sweebe, 474 Mich 151, 154; 712 NW2d 708 (2006).
Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309, 311; 550 NW2d 228 (1996).
MCL 423.202.
MCL 423.244 (“This act shall be deemed as supplementary to Act No. 336 of the Public Acts of 1947, as amended, being sections 423.201 to 423.216 of the Compiled Laws of 1948, and does not amend or repeal any of its provisions; but any provisions thereof requiring fact-finding procedures shall he inapplicable to disputes subject to arbitration under this act.”).
Dearborn Fire Fighters, 394 Mich at 279 (opinion of COLEMAN, J.). In Dearborn Fire Fighters, with three justices not participating, the remaining four justices considered the constitutionality of Act 312. Justice Levin and Chief Justice Kavanagh held that the act was unconstitutional as an unlawful delegation of legislative power. Justice Coleman held the statute constitutional in its entirety. Justice Williams held the statute constitutional on the facts of the case. With the members of this Court evenly split, the Court of Appeals decision upholding the constitutionality of Act 312 was affirmed. The constitutionality of Act 312 was again considered and upheld by a majority of this Court in Detroit v Detroit Police Officers Ass’n, 408 Mich 410; 294 NW2d 68 (1980), and Center Line II.
Dearborn Fire Fighters, 394 Mich at 280 (opinion of Coleman, J.).
MCL 423.243.
See Center Line II, 414 Mich at 661-664. See also, e.g., Manistee v Manistee Fire Fighters Ass’n, Local 645, IAFF, 174 Mich App 118, 122; 435 NW2d 778 (1989). In Center Line II, one of the central issues was the scope of an Act 312 panel’s authority. This Court interpreted Act 312 in the context of PERA’s distinction between mandatory and permissive subjects of bargaining, observing that “[wjhile Act 312 does not specifically delineate the scope of the arbitration panel’s authority, it can be inferred from an analysis which considers [PERA] . .. and Act 312 together.” Id. at 651-652. We held that “[g]iven the fact that Act 312 complements PERA and that under § 15 of PERA the duty to bargain only extends to mandatory subjects, .. . the arbitration panel can only compel agreement as to mandatory subjects.” Id. at 654. Thus, we concluded that the Act 312 panel in Center Line II exceeded the scope of its authority when it compelled the parties to accept a layoff provision as part of a new labor contract because the layoff clause, which provided that police officer layoffs for lack of funds could only be made in conjunction with layoffs and cutbacks in other departments, fell within the scope of management prerogative and was outside the realm of mandatory subjects of bargaining. However, Center Line II cautioned that “while the initial decision to lay off is not a mandatory subject of bargaining, and therefore cannot be compelled in an arbitration award, it is clear that there is a duty to bargain over the impact of that decision.” Id. at 661. The impact of the decision to lay off, according to Center Line II, might implicate a mandatory subject of bargaining that triggers the duty to collectively bargain.
In this case, both parties appear to concede that, consistent with Center Line II, defendant retains the prerogative to lay off firefighters. However, plaintiff argues that the impact of the restructuring plan, which includes layoffs, implicates a mandatory subject of bargaining because it affects firefighter safety, a “condition of employment” that should not be altered during Act 312 arbitration proceedings.
Oak Park, 277 Mich App at 329-330. See also Trenton v Trenton Fire Fighters Union, Local 2701, IAFF, 166 Mich App 285; 420 NW2d 188 (1988).
Oak Park, 277 Mich App at 326.
Id. at 329-330 (citations omitted).
In Oak Park, the city filed an unfair labor practice charge against the union, alleging that the union unlawfully demanded bargaining over permissive bargaining subjects, such as a safety/staffing provision, in an Act 312 arbitration. The hearing referee and the MERC panel ruled in favor of the city, deciding that the union breached its duty to bargain in good faith. The Court of Appeals affirmed in a published opinion per curiam.
Id. at 330.
Id.
Michigan State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 157-158; 365 NW2d 93 (1984). See also Pontiac Fire Fighters Union Local 376 v Pontiac, 482 Mich 1, 10-11; 753 NW2d 595 (2008). We disagree with and overrule as inconsistent with this Court’s decision the Court of Appeals holding in Detroit Police Officers Ass’n v Detroit, 142 Mich App 248; 369 NW2d 480 (1985), that the traditional injunctive standards do not apply when issuing an injunction to remedy a violation of the status quo provision. This Court has consistently held that it is “basically contrary to public policy in this State to issue injunctions in labor disputes absent a showing of violence, irreparable injury, or breach of the peace.” Holland School Dist v Holland Ed Ass’n, 380 Mich 314, 326; 157 NW2d 206 (1968); see also Michigan State Employees Ass’n, 421 Mich at 164-165; Michigan Law Enforcement Union, Teamsters Local 129 v Highland Park, 422 Mich 945 n 1 (1985). An injunction concerning a dispute about the status quo provision should be treated no differently.
However, MCR 3.310(A)(2) permits the court to accelerate the process by advancing and consolidating the trial of the action on the merits with the hearing on the motion. In either case, the merits of the claim cannot remain unresolved. | [
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Memorandum Opinion. At issue is whether the trial court properly granted summary disposition to defendant on the basis of his claim that he experienced a sudden emergency. Defendant, James Birkenheuer, rear-ended plaintiff, Sherita White, while she was stopped for a red light. By statute, the driver of a vehicle that strikes another from behind is presumed negligent. But defendant claims that, as a matter of law, the statutory presumption should not apply to him because he experienced a sudden emergency when he blacked out seconds before the collision. We disagree. We conclude that there are genuine issues of material fact regarding defendant’s claim of a sudden emergency. Accordingly, we affirm the Court of Appeals reversal of the trial court’s grant of summary disposition to defendant.
On March 15, 2004, defendant was driving from Cincinnati, Ohio, to Novi, Michigan. He stated that he stopped at a rest area in Canton, Michigan, because he experienced an urgent onset of severe diarrhea. After the diarrhea episode, defendant stated that he waited about 20 minutes at the rest area to see how he felt. Not experiencing further illness, he continued his trip.
Defendant stated that as he took the Novi Road exit ramp some 30 minutes later, he began to feel dizzy and broke into a sweat. He recalled seeing plaintiffs car about 250 to 300 yards in front of him, stopped at a red light at the end of the ramp. Defendant applied his brakes, began gearing down, and then blacked out. He has no recollection of events that occurred before the impact with plaintiffs vehicle jarred him to consciousness. After the collision, he applied his emergency brake, set his emergency flashers, and got out of his truck, but blacked out again in the road. He was assisted by other motorists and then treated by emergency medical personnel at the scene.
Defendant was taken to a hospital by ambulance. He was diagnosed as having experienced a “syncopal episode,” meaning that he blacked out. While at the hospital, he described the accident to a police officer and was ticketed for violating MCL 257.627(1) — failure to maintain an assured clear distance ahead. The next day, defendant visited his family doctor, who diagnosed defendant as having experienced “viral enteritis with syncopal spell secondary to hypovolemia” (intestinal inflammation with secondary blackout).
Plaintiff filed a suit alleging that defendant was presumed negligent under MCL 257.402(a) because he had struck plaintiffs vehicle from the rear. Defendant moved for summary disposition under MCR 2.116(C)(10), asserting that he was not negligent under the circumstances because his illness created a sudden emergency. Defendant submitted his deposition testimony, the accident report, and related medical reports in support of his motion. Plaintiff argued that questions of fact existed regarding whether defendant had actually blacked out before the accident and whether defendant knew or should have known that he was not in a condition to drive when he left the rest area after experiencing severe diarrhea. The trial court granted defendant’s motion. Plaintiff appealed.
The Court of Appeals reversed the trial court, holding that summary disposition was not appropriate because the key evidence was within defendant’s exclusive knowledge. White v Taylor Distributing Co, Inc, 275 Mich App 615, 630; 739 NW2d 132 (2007). We granted defendant’s application for leave to appeal. 480 Mich 961 (2007).
“We review de novo decisions on summary disposition motions.” AFSCME v Detroit, 468 Mich 388, 398; 662 NW2d 695 (2003) (quotation omitted). A court reviewing a motion under MCR 2.116(0(10) “must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party.” Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). The statutory presumption of negligence under MCL 257.402(a) may be rebutted by showing the existence of a sudden emergency. Vander Laan v Miedema, 385 Mich 226, 231; 188 NW2d 564 (1971). The sudden-emergency doctrine applies “when a collision is shown to have occurred as the result of a sudden emergency not of the defendants’ own making.” Id., citing McKinney v Anderson, 373 Mich 414, 419; 129 NW2d 851 (1964).
Defendant asserts that he experienced a sudden emergency when he became dizzy and blacked out on the exit ramp seconds before he collided with plaintiffs vehicle; thus, the statutory presumption should not apply. We agree that a sudden, unexpected blackout could present a sudden emergency sufficient to rebut the statutory presumption. But a sudden emergency sufficient to remove the statutory presumption must be “totally unexpected.” Vander Laan, supra at 232. There is evidence that defendant may have known or should have known that he was not feeling well when he continued driving after his urgent stop at the Canton rest area. This creates a genuine issue of material fact regarding whether defendant’s emergency was totally unexpected.
Defendant testified that after experiencing a severe episode of diarrhea at the rest area, “I hung around a while, walked around to make sure I was finished and felt fine so I continued on to where I had to go because it wasn’t far away.’’ This emphasized statement could imply that defendant was aware he was not feeling well, but chose to continue driving his tractor-trailer because he felt he could make the short trip despite his condition.
Defendant states that he “felt great” while driving some 30 minutes between the Canton rest area and the Novi Road exit. But this statement is called into question by the medical records and deposition testimony submitted to the trial court. The emergency room (ER) physician who treated defendant stated that “[a] couple of episodes of diarrhea would not typically cause a syncopal episode. Pain, abdominal cramping or severe cramping or any kind of pain can cause someone to have a syncopal episode, but a couple of episodes of diarrhea would not cause him to pass out.”
Defendant’s family physician diagnosed defendant with viral enteritis severe enough to cause a blackout. Viral enteritis is an inflammation of the intestines with symptoms including nausea, vomiting, diarrhea, cramps, and abdominal pain. So, the independent opinions of the two doctors treating defendant within 24 hours of the accident agree that defendant’s condition would have caused ongoing symptoms such as cramps and pain. Further, the officer who responded to the accident noted that defendant “states he ‘blacked out,’ possibly from being ill.” It is unclear from this statement whether defendant was referring to his diarrhea at the rest area or to illness at some time more immediately before the accident. If defendant experienced ongoing symptoms or felt ill after his first onset of urgent illness at the rest stop, then any subsequent emergency was not totally unexpected and, thus, not sudden.
The ER physician also testified regarding how quickly defendant’s syncopal episode may have developed: “In my opinion, I would say that happened over, you know, several seconds, a couple of minutes, that’s pretty sudden.” If defendant felt dizzy “a couple of minutes” before blacking out, then perhaps his subsequent emergency was not clearly sudden under the circumstances. Further, for the sudden emergency doctrine to apply, the emergency must not be of defendant’s own making. Vander Laan, supra at 231. If defendant was aware that he was not feeling well when he left the rest area but continued driving anyway because he “did not have far to go,” or if defendant felt ill while driving from the rest area to the Novi Road exit, or if defendant felt ill even a few minutes before he collided with plaintiff, then the emergency may well have been of his own making.
Additionally, defendant’s statements regarding the cause of his condition are inconsistent. The notes from defendant’s visit to his family doctor the day after the accident state that defendant “blacked out while driving .. . feels like it was from eating a hardboiled egg 1 hour prior.” This information was not given to the ER physician. When asked at deposition about what he had to eat or drink before the accident, defendant did not mention the hardboiled egg. We think that information about the cause of defendant’s condition could have better established how defendant was feeling before the accident. Defendant’s inconsistent statements about the cause of his illness create issues of material fact precluding summary disposition.
We do not assess defendant’s credibility. But, under the legal and factual circumstances, “[w]e do not ignore the inconsistencies in defendant’s statements . . . .” Bridwell v Segel, 362 Mich 102, 106; 106 NW2d 386 (1960). The questions regarding whether defendant experienced a sudden emergency and whether defendant was negligent in driving under the facts presented in this case are proper questions for the jury. Soule v Grimshaw, 266 Mich 117, 120; 253 NW 237 (1934).
We affirm the Court of Appeals decision to reverse and remand this case to the trial court for further proceedings. Under the facts of this case, the trial court improperly granted summary disposition to defendant.
TAYLOR, C.J., and CAVANAGH, WEAVER, KELLY, CORRIGAN, YOUNG, and MARKMAN, JJ., concurred.
Defendant Taylor Distributing Company is defendant James Birkenheuer’s employer. Defendant Penske Truck Leasing Company, L.P, was the owner of the tractor-trailer defendant was driving. Because the liability of these two defendants arises from Birkenheuer’s conduct, the term “defendant” will be used to refer to Birkenheuer.
MCL 257.402(a) states:
In any action, in any court in this state when it is shown by competent evidence, that a vehicle traveling in a certain direction, overtook and struck the rear end of another vehicle proceeding in the same direction, or lawfully standing upon any highway within this state, the driver or operator of such first mentioned vehicle shall be deemed prima facie guilty of negligence. This section shall apply, in appropriate cases, to the owner of such first mentioned vehicle and to the employer of its driver or operator.
Plaintiff also alleged a violation of MCL 257.627(1), which requires a motorist to maintain an “assured, clear distance ahead.” Becahse the analysis of § 627(1) is virtually identical, we examine plaintiffs claim under § 402(a) only. Zeni v Anderson, 397 Mich 117, 134; 243 NW2d 270 (1976).
In Soule v Grimshaw, 266 Mich 117, 119; 253 NW 237 (1934), we recognized that a sudden loss of consciousness while driving could present a sudden emergency sufficient to rebut the presumption of negligence.
We note that there is also a question of fact regarding whether defendant blacked out while driving or whether he only blacked out after the accident. Defendant was driving alone and no one witnessed his condition immediately before the collision. The evidence reveals inconsistencies between defendant’s condition immediately following his alleged precollision blackout and his condition immediately following the undisputed blackout after the collision. For instance, defendant experienced incontinence following the undisputed blackout (after the collision), but not following the disputed blackout (before the collision). Further, although defendant experienced a lowered level of consciousness following the postaccident blackout, there is evidence that he did not experience a lowered level of consciousness following the alleged preaccident blackout; specifically, his testimony that when he was jarred awake from the latter he immediately activated his emergency flashers, applied his emergency brake, and got out of his cab to check on plaintiff’s condition. | [
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MARKMAN, J.
At issue here is whether the United States Supreme Court’s decision in Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed 2d 552 (2005), should be applied retroactively to cases in which a defendant’s conviction has become final. In lieu of granting leave to appeal, we affirm the judgment of the trial court denying defendant’s motion for relief from judgment, and we conclude under federal and state law that Halbert should not be applied retroactively to cases in which a defendant’s conviction has become final.
I. FACTS AND PROCEDURAL HISTORY
In 2001, defendant pleaded guilty to two counts of second-degree criminal sexual conduct, and subsequently failed to request appointed counsel or to file a direct appeal. On June 23, 2005, the United States Supreme Court issued Halbert, which held that indigent defendants who plead guilty to criminal offenses are entitled to appointed appellate counsel on direct appeal. Id. at 610. After Halbert was decided, defendant requested appointed counsel in the instant motion for relief from judgment. However, because defendant’s conviction was final before Halbert was decided, defendant is only entitled to counsel if the rule announced in Halbert is applied retroactively.
II. STANDARD OF REVIEW
The retroactivity of a court’s ruling presents an issue of law that this Court reviews de novo. People v Sexton, 458 Mich 43, 52; 580 NW2d 404 (1998).
III. ANALYSIS
A. RETROACTIVITY UNDER FEDERAL LAW
“New legal principles, even when applied retroactively, do not apply to cases already closed.” Reynoldsville Casket Co v Hyde, 514 US 749, 758; 115 S Ct 1745; 131 L Ed 2d 820 (1995). This is because “at some point, ‘the rights of the parties should be considered frozen’ and a ‘conviction . . . final.’ ” Id., quoting United States v Estate of Donnelly, 397 US 286, 296; 90 S Ct 1033; 25 L Ed 2d 312 (1970) (Harlan, J., concurring). There are, however, “certain special concerns — related to collateral review of state criminal convictions — that affect which cases are closed, for which retroactivity-related purposes, and under what circumstances.” Id.
In Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed 2d 334 (1989), the United States Supreme Court set forth the federal standard for determining whether a rule regarding criminal procedure should be applied retroactively to cases in which a defendant’s conviction has become final. Teague established the “general rule” that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Id. at 310. However, Teague laid down two exceptions to this general rule: first, a new rule should be applied retroactively if it places “ ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,’ ” id. at 307 (citation omitted); and second, a new rule should be applied retroactively “if it requires the observance of those procedures that... are implicit in the concept of ordered liberty.” Id. (citations and internal quotation marks omitted).
Thus, the first question under Teague is whether the rule in Halbert constitutes a new rule. “ ‘[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.’ ” Penry v Lynaugh, 492 US 302, 314; 109 S Ct 2934; 106 L Ed 2d 256 (1989) (citation omitted). Deciding whether a rule is “new” requires a court to determine “whether ‘a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.’ ” O’Dell v Netherland, 521 US 151, 156; 117 S Ct 1969; 138 L Ed 2d 351 (1997) (emphasis added and citations omitted). If a reasonable jurist would not have felt compelled by existing precedent, then the rule is new. Beard v Banks, 542 US 406, 413; 124 S Ct 2504; 159 L Ed 2d 494 (2004). In other words, the relevant question is not simply whether existing precedent might have supported the rule, but whether the rule “was dictated by then-existing precedent.” Id. at 413 (emphasis in original).
We conclude that the rule in Halbert constitutes a new rule. Although Halbert found support in the earlier United States Supreme Court decision of Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963), that case did not clearly require the outcome in Halbert. Douglas held that when a state grants a first appeal as of right, the state is required to appoint appellate counsel for indigent defendants. Id. at 357. Because Michigan does not grant an appeal as of right to a defendant who pleads guilty, and because the United States Supreme Court had previously decided that appointment of appellate counsel is unnecessary when an appellate court, such as a state’s highest court, has the discretion to choose whether to reach the merits of a defendant’s appeal, Ross v Moffitt, 417 US 600; 94 S Ct 2437; 41 L Ed 2d 341 (1974), a reasonable jurist could well conclude that Douglas did not compel the result in Halbert.
Because “it is more difficult... to determine whether [the Supreme Court] announce [d] a new rule when a decision extends the reasoning of [its] prior cases,” Saffle v Parks, 494 US 484, 488; 110 S Ct 1257; 108 L Ed 2d 415 (1990), the “new rule” principle is designed to “validate[] reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler v McKellar, 494 US 407, 414; 110 S Ct 1212; 108 L Ed 2d 347 (1990). In Halbert, the dissenting Supreme Court justices argued against extending Douglas, further supporting the conclusion that Douglas did not compel the result in Halbert and that this Court’s previous interpretation was reasonable.
Because the rule in Halbert was new, the remaining question under Teague is whether either of the two Teague exceptions applies. The first exception is clearly inapplicable, as the rule in Halbert does not concern a rule that “ 'forbid[s] criminal punishment of certain primary conduct. .. [or] prohibits] a certain category of punishment for a class of defendants because of their status or offense.’ ” O’Dell, supra at 157 (citation omitted). Thus, the only issue is whether Halbert constituted a “watershed” decision that involved “procedures . . . implicit in the concept of ordered liberty.” Graham v Collins, 506 US 461, 478; 113 S Ct 892; 122 L Ed 2d 260 (1993) (citations and quotation marks omitted).
The United States Supreme Court has repeatedly emphasized the limited scope of the second Teague exception. The Court has observed that because any such rule “would be so central to an accurate determination of innocence or guilt [that it is] unlikely that many such components of basic due process have yet to emerge, it should come as no surprise that we have yet to find a new rule that falls under the second Teague exception.” Beard, supra at 417 (citations and quota tion marks omitted). The Supreme Court has referred to the right to counsel set forth in Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), as an example of a rule that would fall into the second Teague exception. It is significant that in referring to this example, the Supreme Court observed, “In providing guidance as to what might fall within this exception, we have repeatedly referred to the rule of Gideon (right to counsel), and only to this rule.” Beard, supra at 417 (emphasis added and citation omitted).
Notably, the Sixth Amendment right to counsel articulated in Gideon and its progeny has a constitutional basis distinct from that underlying the Douglas line of cases addressing the right to counsel on appeal that are rooted in the Equal Protection and Due Process clauses of the Fourteenth Amendment. Further, considering that Halbert is unlikely to apply to any situation other than Michigan’s unique legislative system of appeals from plea-based convictions, we agree with the Sixth Circuit that “ [i]t does not represent a shift in ‘bedrock procedural elements’ and it cannot be said to be ‘on par’ with Gideon.” Simmons v Kapture, 474 F3d 869, 887 (CA 6, 2007) (Reeves, J., dissenting), adopted by Simmons v Kapture, 516 F3d 450, 451 (CA 6, 2008) (holding that Halbert is not retroactive under Teague).
Additionally, a state is not required to provide any appellate proceedings at all for defendants who plead guilty. Halbert, supra at 610. In Goeke v Branch, 514 US 115; 115 S Ct 1275; 131 L Ed 2d 152 (1995), the Supreme Court held that “[b]ecause due process does not require a State to provide appellate process at all, a former fugitive’s right to appeal cannot be said to be so central to an accurate determination of innocence or guilt as to fall within this exception. . . .” Id. at 120 (citations and quotation marks omitted). Considering these holdings, the provision of appointed counsel for such a proceeding can hardly be said to be “implicit in the concept of ordered liberty.” Accordingly, in our judgment, Halbert cannot be construed as a “watershed” decision, neither of the Teague exceptions applies, and Halbert thus is not retroactive under federal retroactivity jurisprudence.
B. RETROACTIVITY UNDER STATE LAW
The conclusion that Halbert is not retroactive under federal law does not end our analysis, however. A state may accord broader effect to a new rule of criminal procedure than federal retroactivity jurisprudence accords. Danforth v Minnesota, _ US _; 128 S Ct 1029, 1045; 169 L Ed 2d 859 (2008). Accordingly, we turn to the question of whether Halbert should be deemed retroactive under state law. Michigan law has regularly declined to apply new rules of criminal procedure to cases in which a defendant’s conviction has become final. See Sexton, supra (requirement that the police inform a suspect when retained counsel is available for consultation); People v Stevenson, 416 Mich 383; 331 NW2d 143 (1982) (abrogation of common-law “year and a day” rule); People v Young, 410 Mich 363; 301 NW2d 803 (1981) (preconviction filing of habitual offender notice); People v Smith, 405 Mich 418, 433; 275 NW2d 466 (1979) (repeal of criminal sexual psychopath statute hairing criminal action against those adjudicated criminal sexual psychopaths); People v Markham, 397 Mich 530; 245 NW2d 41 (1976) (double jeopardy “same transaction” test); People v Rich, 397 Mich 399; 245 NW2d 24 (1976) (erroneous “capacity standard” jury instruction); People v Butler, 387 Mich 1; 195 NW2d 268 (1972) (waiver of a defendant’s constitutional rights in taking a guilty plea); Jensen v Menominee Circuit Judge, 382 Mich 535; 170 NW2d 836 (1969) (constitutional right to appeal in criminal cases); People v Woods, 382 Mich 128; 169 NW2d 473 (1969) (custodial interrogation procedures); People v Fordyce, 378 Mich 208; 144 NW2d 340 (1966) (custodial interrogation procedures).
In Sexton, we considered the following three factors to determine whether a new rule of criminal procedure should be applied retroactively:
(1) the purpose of the new rules; (2) the general reliance on the old rule[;] and (3) the effect of retroactive application of the new rule on the administration of justice. [Sexton, supra at 60-61, citing People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971).]
Under the “purpose” prong, a law may be applied retroactively when it “ ‘concerns the ascertainment of guilt or innocence;’ ” however, “ ‘a new rule of procedure . . . which does not affect the integrity of the fact-finding process should be given prospective effect.’ ” Id. at 63, quoting Young, supra at 367. By pleading guilty, defendants are not contesting their guilt, but admitting it freely. Thus, the appointment of counsel on appeal does not concern the ascertainment of guilt or innocence. See Goeke, supra at 120. Rather, an appeal from a guilty plea concerns only the procedures of the plea process; the defendant has already admitted substantive guilt while represented by counsel. It is hard to imagine a more dispositive process by which guilt can be accurately determined, and in which the appellate process becomes less central to an accurate determination of guilt, than that in which a full admission to criminal conduct has come from the mouth of the defendant himself under oath, and in an environment in which the defendant has been accorded every protection against a coerced or mistaken confession. Consequently, the first Sexton prong counsels against retroactivity.
The second Sexton prong, which concerns the “general reliance on the old rule,” does not, in our judgment, strongly counsel either way in this case. When considering “reliance,” a court examines whether individual persons or entities have been “adversely positioned . . . in reliance” on the old rule. Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 221; 731 NW2d 41 (2007). The dissent implies that defendants who pleaded guilty between 1994 and 2005, as a class, were “penalized by the general reliance” on the old rule. Post at 411. We disagree. To be considered to have detrimentally relied on the old rule, a defendant must have relied on the rule in not pursuing an appeal and have suffered harm as a result of that reliance. We recognize that ascertaining the precise number of defendants who meet this standard is impossible, but clearly all defendants who pleaded guilty between 1994 and 2005 do not meet this standard. Indeed, appeals of guilty pleas before the old rule indicate that it is likely that very few do.
First, only a very small percentage of defendants who pleaded guilty before the old rule became effective actually appealed their pleas. Before the old rule was implemented in 1994, an estimated 89% to 94% of defendants who pleaded guilty did not appeal their pleas. During this period, indigent defendants were appointed appellate counsel if they chose to pursue an appeal. Yet, fewer than one in ten of all defendants who pleaded guilty actually decided to appeal their pleas. The large number of defendants who pleaded guilty but did not seek appeal can be explained by a variety of factors, most important of which are the lack of an appealable issue after the plea and the risk inherent in appealing a guilty plea. Therefore, it can be assumed that most defendants who pleaded guilty between 1994 and 2005 and did not appeal, rather than not appealing because of reliance on the old rule, did not appeal because of factors unrelated to, and existing before, the old rule.
Second, a defendant who relied on the old rule in not filing an appeal must also have suffered actual harm from that reliance in order to have “detrimentally relied” on the old rule. That is, the old rule would have had to preclude defendant from filing an appeal that would have resulted in some form of relief. Out of that small number of defendants who pleaded guilty before the old rule and subsequently appealed the plea, only a veiy limited number received relief on appeal. In 1994, before the old rule was adopted, the Court of Appeals estimated that only three to four percent of guilty plea cases that came before it resulted in some form of relief. The State Appellate Defender Office (SADO), however, estimates that approximately 27% of pleading indigent defendants whom it represented received some measure of relief.
Accordingly, the number of pleading defendants who could be said to have detrimentally relied on the old rule would range somewhere between 0.18% (6% x 3%) and 2.97% (11% x 27%), combining the lowest and highest Court of Appeals/House Legislative Analysis and SADO figures. Thus, there is no reason why it should not be assumed that, at a minimum, 97% to 99% of the defendants who pleaded guilty under the old rule would not have received relief under the new rule. While it cannot be disputed that some number of defendants would receive relief if Halbert were made retroactive, this would be true of extending any new rule retroactively, yet this is not generally done. Instead, we must consider, as best as possible, the extent of the detrimental reliance on the old rule, and then balance this against the other Sexton factors, as well as against the fact that each defendant who pleaded guilty has received all the rights under the law to which he or she was entitled at the time. Here, we conclude that the extent of the detrimental reliance is remarkably minimal and, as explained above and below, does not outweigh the other Sexton factors that clearly counsel against retroactive application.
Finally, affording appointed counsel to defendants whose appeals became final before Halbert would have a markedly adverse effect on the administration of justice, the third Sexton prong. The state’s strong interest in finality of the criminal justice process would be undermined as presumably significant numbers of the incarcerated population would be entitled to avail themselves of appointed counsel and new appeals, de spite having knowingly and intelligently pleaded guilty to criminal conduct while represented by counsel.
“[FJinality of state convictions is a state interest. .. that States should be free to evaluate, and weigh the importance of, when prisoners held in state custody are seeking a remedy for a violation of federal rights by their lower courts.” Danforth, supra at 1041 (emphasis in original). The principle of finality “is essential to the operation of our criminal justice system.” Teague, supra at 309. The state’s interest in finality discourages the advent of new rules from “continually forcing] the State[] to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards,” id. at 310 (emphasis omitted), and also “serves the State’s goal of rehabilitating those who commit crimes because ‘[rehabilitation] demands that the convicted defendant realize that he is justly subject to sanction, that he stands in need of rehabilitation.’ ” Kuhlmann v Wilson, 477 US 436, 453; 106 S Ct 2616; 91 L Ed 2d 364 (1986), quoting Engle v Isaac, 456 US 107, 128 n 32; 102 S Ct 1558; 71 L Ed 2d 783 (1982) (citation and quotation marks omitted). Accordingly, applying Halbert retroactively to cases in which a conviction has become final would have a markedly adverse effect on the administration of justice.
Thus, although retroactive application of Halbert would potentially provide a small number of defendants with some form of relief, this does not outweigh the certainty that by applying Halbert retroactively, many guilty-pleading defendants whose convictions have become final would inundate the appellate process with new appeals. In light of the limited judicial resources of the state, it is our judgment that those resources would be better preserved for defendants currently charged— some of whom may be innocent or otherwise entitled to relief — than for defendants who have knowingly pleaded guilty and presumably accepted the consequences of their decisions. Thus, the third prong weighs far more heavily against retroactive application than the second prong weighs for retroactive application. Considered together, all of the Sexton factors, therefore, strongly counsel against applying Halbert retroactively under state law to cases in which a defendant’s conviction has become final.
IV FURTHER RESPONSE TO THE DISSENT
(1) The dissent asserts that we are “swerv[ing] and dodg[ing]” decisions of the United States Supreme Court by “refusing” to make Halbert retroactive in order to “deny indigent defendants access to justice.” Post at 403. The premise of this overheated assertion is that the United States Supreme Court has already rejected our reasoning, but its repetition by the dissent does not make this so. We have set forth what we think the law is, and we have followed Teague and other relevant decisions to their logical and reasonable conclusions. Whatever the dissent’s personal conceptions of what should be required by the Constitution, we have applied what this Court and the United States Supreme Court have said the Constitution requires.
(2) The dissent describes us as “arbitrarily” cutting off constitutional relief to defendants whose plea-based convictions became final between 1994 and 2005. We fail to see what is “arbitrary” about applying existing precedent to determine whether Halbert is retroactive and, having concluded that it is not, employing the date of the Halbert decision to determine who precisely is entitled to the benefits of that decision. Using the date of a decision that has granted a right as the starting date for entitlement to that right has long been the standard procedure of this Court. See Woods, supra at 138-139.
(3) The dissent believes that because Halbert overruled this Court’s determination in People v Bulger, 462 Mich 495; 614 NW2d 103 (2000), that MCL 770.3a was constitutional, his position in the instant case should prevail. This overlooks that the issues in Bulger and this case are simply different. Unlike Bulger, this case does not concern whether the right to first-tier appellate counsel exists; Halbert has decided this. Rather, the present issue concerns the extent to which Halbert is retroactive. Indeed, in Bulger, we expressly declined to address the constitutionality of MCL 770.3a because it did not apply to the defendant in that case. Id. at 506 (“Because this new statute does not apply to defendant, the question of its constitutionality is not before us.”). While the analysis employed by the Supreme Court in recognizing a constitutional right may well be relevant in some instances in assessing the right’s retroactivity, it will rarely be conclusive. Indeed, Teague and Danforth themselves confirm that assessments of retroactivity are independent of the recognition of the right itself and that the two determinations involve different questions and require the evaluation of different interests.
(4) The dissent concludes that precedent “compelled” the result in Halbert by declaring the holding in Ross to be so clear that it “does not support a claim that a reasonable jurist could conclude that the rule of Halbert was not compelled.” Post at 407. We think the simple fact that Halbert was a 6 to 3 decision, and reversed a majority of this Court, makes sufficiently clear that reasonable jurists could conclude that Halbert was not “compelled.” Further, even the trial court that granted conditional habeas relief in Bulger recognized that this Court’s position was “not contrary to any clearly established Supreme Court precedent,” Bulger v Curtis, 328 F Supp 2d 692, 703 (ED Mich, 2004) (emphasis added).
(5) The dissent complains that we “rel[y] on the presumption that all defendants who plead guilty are indeed guilty.” Post at 409. When a defendant pleads guilty, he admits guilt under oath. We freely admit that there is some sense on our part that “defendants who plead guilty are indeed guilty.” By taking an oath, defendants give courts permission to presume that admissions of guilt are true. This Court has made clear that after conviction, defendants are no longer cloaked with a presumption of innocence, People v Mateo, 453 Mich 203, 222; 551 NW2d 891 (1996) (WEAVER, J., concurring), thereby permitting this Court to presume that those who have pleaded guilty are, in fact, guilty.
More importantly, Halbert did not address the ascertainment of guilt, but rather discussed the complexity of appeals and why counsel is often required to navigate this process. Halbert, supra at 621 (“Navigating the appellate process without a lawyer’s assistance is a perilous endeavor for a layperson . . . .”). Although the opinion refers to “ ‘myriad and often complicated’ substantive issues” potentially involved in appeals, at no time does it equate these issues with the ascertainment of guilt. Id. (citation omitted).
Moreover, not only are several of the potential appellate issues that the dissent identifies clearly unrelated to questions of guilt (jurisdictional defects, double jeopardy claims, and claims that the state had no right to proceed such as having charged a defendant under an inapplicable statute), but it is nonsensical for the dissent to conclude that the Supreme Court determined that claims involving “ ‘constitutional defects that are irrelevant to [a defendant’s] factual guilt’ ” apply to the guilt or innocence of a defendant. Post at 410 n 2, quoting Bulger, supra at 561 (CAVANAGH, J., dissenting) (emphasis added).
Although we recognize that such procedural matters may well be essential and, in some cases, constitutionally mandated, their existence does not automatically convert them into issues concerning guilt or innocence. The United States Constitution provides criminal defendants the right to due process of law. US Const, Am V. The question of whether a defendant has received due process is different in many contexts from whether a given procedure affects the “integrity of the fact-finding process.” Sexton, supra at 63 (internal citation and quotation marks omitted). By conflating, as the dissent has done, whether a procedure is necessary for due process with whether a procedure ascertains a defendant’s guilt or innocence, the dissent would compel that virtually all new rules of criminal procedure become retroactive. Perhaps the dissent could explain what new rules would not be retroactive under the analysis that he sets forth. And, while such automatic retroactivity may be the dissent’s personal preference, Sexton’s and Teague’s very existence refute that proposition as the preference of the law.
V CONCLUSION
For these reasons, we hold that Halbert does not apply retroactively to cases in which a defendant’s conviction has become final, either under federal or state retroactivity jurisprudence. Accordingly, we affirm the trial court’s denial of defendant’s motion for relief from judgment.
Taylor, C.J., and Weaver, Corrigan, and Young, JJ., concurred with MARKMAN, J.
Defendants who seek to appeal their guilty pleas must file an application for leave to appeal with the Court of Appeals. MCR 7.203(A)(1)(b).
“[A] State may not ‘bolt the door to equal justice’ to indigent defendants” once it has provided an avenue of appeal. Halbert, supra at 610, quoting Griffin v Illinois, 351 US 12, 24; 76 S Ct 585; 100 L Ed 891 (1956). This holding only emphasizes our position that Halbert is not a “watershed” decision like Gideon because Halbert is rooted in the Equal Protection and Due Process clauses of the Fourteenth Amendment, rather than in the Sixth Amendment right to counsel.
To conclude that Teague was intended to apply strictly to federal habeas review, and not to state court proceedings, Danforth argued that: (1) Teague was silent regarding a state’s ability to give broader effect to federal constitutional decisions, Danforth, supra at 1039; (2) Teague was based on the federal habeas statute, 28 USC 2241 et seq., a “statutory authority that extends only to federal courts,” Danforth, supra at 1040; and (3) Teague relied on considerations of comity and federalism, which “are [concerns] unique to federal habeas review of state convictions.” Id. at 1041 (emphasis in original). Accordingly, the analysis in Teague binds only federal courts on habeas review, and a state court may use a different test to give broader effect to a new rule of criminal procedure established by the United States Supreme Court.
Since March 1, 1995, this Court has required all defendants who plead guilty to be placed under oath before doing so. MCR 6.302(A).
1994 PA 374, which implemented Proposal B, became effective December 27, 1994.
The State Appellate Defender Office estimated, on the basis of the cases it handled, that less than six percent of guilty pleas were appealed. House Legislative Analysis Section, Second Analysis, 1994 PA 374, 375 (January 5, 1995), p 2. The House Legislative Analysis Section’s November 2, 1993, analysis stated that “[e]stimates put the proportion of people who appeal after pleading guilty at 11 percent or substantially less.” House Legislative Analysis Section, First Analysis, House Bill 4070, 4071 (November 2, 1993) (“HB 4070-4071 Analysis”), p 3.
Under MCR 6.312, if an appellate court vacates a defendant’s guilty plea, “the case may proceed to trial on any charges that had been brought or that could have been brought against the defendant if the plea had not been entered,” including charges more severe than the charge or charges to which the defendant pleaded guilty or charges that the prosecutor agreed to drop in exchange for the plea agreement. The risk of proceeding to trial on more serious or additional charges often persuades defendants not to pursue a plea appeal. Robertson, Felony Plea Appeals in Michigan — 1992; (Lansing: Michigan Appellate Assigned Counsel System, 1992), p 2. See also People v Sutton, 158 Mich App 755; 405 NW2d 209 (1987).
House Legislative Analysis Section, First Analysis, Ballot Proposal B, 1994 General Election, (October 14, 1994), p 4.
HB 4070-4071 Analysis, supra at 2; Senate Fiscal Agency, First Analysis, S.J.R. D (Feb 18, 1993), p 2. According to SADO, 42% of the guilty pleas it appealed were entirely dismissed without being heard. Cases “not heard” were typically handled by a “short, simple affirmation of the trial court’s decision.” Id. For the remaining 58% that were not dismissed without a hearing, 47% of those appeals received relief. Thus, using the SADO figures, of every six SADO-represented, guilty-pleading defendants who appealed, approximately 1.6, or 27%, secured some measure of relief ((42% x 0%) + (58% x 47%)).
Moreover, if anything, these figures overstate the number of defendants who adversely relied on the old rule. A defendant, for example, who has received relief in the form of resentencing, or the vacating of a plea, has not necessarily been adversely affected if he or she ultimately receives the same sentence after resentencing or is reconvicted after trial.
Appellate “relief,” of course, far more often than not consists of such things as requiring judicial rearticulation of a sentence, affording additional rights of allocution, correcting a presentence report, adjusting restitution amounts, clarifying the application of guidelines, and vacating consecutive sentences, as opposed to reversing a conviction or reducing a sentence.
Only later, in People v Harris, 470 Mich 882 (2004), did we hold that, “[p]ursuant to the analysis provided by this Court in Bulger, MCL 770.3a is constitutional.”
In light of the Sixth Circuit’s conclusion in Simmons that Halbert is not retroactive under Teague, and the dissent’s assertion that “Teague does not control the measure of retroactivity applied by a state court,” post at 408, we see no reason to further discuss the dissent’s Teague analysis. | [
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CORRIGAN, J.
In this case, we consider the correct method for counting prior felonies under Michigan’s habitual offender statutes, MCL 769.10, 769.11, 769.12, and 769.13. These statutes establish escalating penalties for offenders who are repeatedly convicted of felonies. This Court has ruled that the statutes imply that each predicate felony must arise from separate criminal incidents. People v Preuss, 436 Mich 714; 461 NW2d 703 (1990); People v Stoudemire, 429 Mich 262; 414 NW2d 693 (1987), mod by Preuss, supra at 739. Therefore, multiple felonies that arise from the same criminal incident or transaction count as a single felony under the habitual offender laws.
We conclude that the holdings of Stoudemire and Preuss directly contradict the plain text of the statutes. Therefore, we overrule these cases. The unambiguous statutory language directs courts to count each separate felony conviction that preceded the sentencing offense, not the number of criminal incidents resulting in felony convictions. Accordingly, defendant was properly sentenced and we affirm his sentences.
I. FACTS AND PROCEDURAL HISTORY
In 2001, a jury convicted defendant, Caprese D. Gardner, of second-degree murder, MCL 750.317, being a felon in possession of a firearm (felon in possession), MCL 750.224f, and possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The facts underlying his convictions do not bear on the current question before this Court. On August 30, 2001, the circuit court sentenced defendant as a third offense habitual offender, MCL 769.11, to concurrent prison terms of 25 to 50 years for the murder conviction and 2 to 10 years for the felon in possession conviction and a consecutive term of 5 years for the felony-firearm conviction. On direct appeal, defendant challenged several of the circuit court’s evidentiary rulings, but did not raise the present issue. The Court of Appeals affirmed his convictions and sentences. This Court denied defendant’s subsequent application for leave to appeal.
In 2004, defendant sought relief from judgment under MCR 6.501 et seq. He argued that his appointed trial and appellate attorneys had provided constitutionally ineffective representation because they failed to investigate and challenge the two prior convictions underlying his third offense habitual offender status. For purposes of the habitual offender enhancement, defendant had stipulated at trial prior convictions of felonious assault and felony-firearm. In his motion for relief from judgment, defendant claimed that both of those convictions, for which he had been sentenced on February 25, 1988, arose from the same criminal act. Accordingly, he asserted that the two convictions should have been counted as a single prior felony conviction for purposes of applying the habitual offender laws under Stoudemire and Preuss. Thus, defendant argued that he should have been sentenced only as a second offense habitual offender, MCL 769.10, and therefore would have been exposed to potentially shorter prison terms for his murder and felon in possession convictions. He also argued that he had good cause for belatedly raising this issue in a motion for relief from judgment under MCR 6.508(D)(3)(a) because his appellate attorney was constitutionally ineffective for failing to recognize and raise the issue in defendant’s prior appeal.
The circuit court denied defendant’s motion, opining that defendant had not established good cause for his failure to raise this issue in his prior appeal. The Court of Appeals denied defendant’s application for leave to appeal “for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D).”
Defendant then applied for leave to appeal in this Court. We heard oral argument on whether to grant his application or take other peremptory action. We directed the parties to address whether Preuss and Stoudemire “correctly held that multiple convictions arising out of a single criminal incident may count as only a single prior conviction for habitual offender purposes and, if so, whether the defendant is entitled to be resentenced.”
II. STANDARDS OF REVIEW
The primary question requires us to interpret Michigan’s habitual offender statutes. This Court reviews de novo questions of statutory interpretation. People v Buehler, 477 Mich 18, 23; 727 NW2d 127 (2007). We also review de novo the ultimate constitutional question whether an attorney’s ineffective assistance deprived a defendant of his Sixth Amendment right to counsel. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
III. ANALYSIS
Defendant was sentenced as a third offense habitual offender under MCL 769.11, which reads, in pertinent part:
If a person has been convicted of any combination of 2 or more felonies or attempts to commit felonies, whether the convictions occurred in this state or would have been for felonies or attempts to commit felonies in this state if obtained in this state, and that person commits a subsequent felony within this state, the person shall he punished upon conviction of the subsequent felony and sentencing under section 13 of this chapter as follows .... [MCL 769.11(1) (emphasis added).]
The same relevant language has appeared in each habitual offender statute since 1978. In 1987 and 1990, respectively, the Stoudemire and Preuss courts concluded that these statutes imply a same-incident or single-transaction method of counting prior felonies for purposes of sentencing enhancement. Accordingly, each predicate felony must “arise from separate criminal incidents.” Preuss, supra at 717.
Habitual offender status may increase a defendant’s minimum and maximum sentences. The sentencing judge generally has the option to increase a repeat offender’s maximum sentence. The high end of the statutory recommended minimum sentence range un der the sentencing guidelines (the maximum minimum) also increases on the basis of the number of prior convictions. Second offense, third offense and fourth offense habitual offenders face increases in their maximum minimums of 25 percent, 50 percent and 100 percent, respectively. MCL 777.21(3)(a) through (c).
Here, defendant would have been subject to a maximum penalty of life in prison for his second-degree murder conviction even without an habitual offender enhancement. His unenhanced minimum sentence range — based on a prior record variable score of 20 and an offense variable score of 65 — was 180 to 300 months. MCL 777.61. Because he was sentenced as a third offense habitual offender, MCL 769.11(1), he was subject to an enhanced minimum sentence range of 180 to 450 months (a maximum minimum of 300 months increased by 50 percent), MCL 777.21(3)(b).
Defendant argues that, under Stoudemire and Preuss, he should have been sentenced only as a second offense habitual offender, MCL 769.10(1), because his two prior felony convictions arose from the same criminal incident. If he had been sentenced as a second offense habitual offender, his statutory minimum sentence range would have been 180 to 375 months (a maximum minimum of 300 months increased by 25 percent). Although his 300-month (25-year) minimum sentence falls within the minimum sentence ranges for both second and third offense habitual offenders, as well as the enhanced range, defendant correctly argues that, if the circuit court relied on an inaccurate higher range when it imposed the sentence, resentencing would be required. People v Francisco, 474 Mich 82, 89-92; 711 NW2d 44 (2006).
The prosecution does not contest defendant’s claim that his two prior felony convictions of felonious assault and felony-firearm arose from the same criminal incident. The prosecution also concedes that defendant may raise the issue in his current motion for relief from judgment because, if Stoudemire and Preuss correctly interpreted the habitual offender statutes, defendant has been prejudiced by the constitutionally ineffective assistance of his appointed trial and appellate attorneys. The prosecution argues, however, that Stou demire and Preuss were incorrectly decided and that defendant was properly sentenced as a third offense habitual offender under the plain language of the statute. We agree.
Our goal in construing a statute is “to ascertain and give effect to the intent of the Legislature.” People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). The touchstone of legislative intent is the statute’s language. “If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written.” People v Weeder, 469 Mich 493, 497; 674 NW2d 372 (2004). Accordingly, when statutory language is unambiguous, judicial construction is not required or permitted. Id.
Here, the relevant language states that [i]f a person has been convicted of any combination of 2 or more felonies or attempts to commit felonies .. . and that person commits a subsequent felony within this state,” the person shall be sentenced under the habitual offender laws. MCL 769.11(1). The text clearly contemplates the number of times a person has been “con victed” of “felonies or attempts to commit felonies.” Nothing in the statutory text suggests that the felony convictions must have arisen from separate incidents. To the contrary, the statutory language defies the importation of a same-incident test because it states that any combination of convictions must be counted. Indeed, Stoudemire and Preuss essentially acknowledged the clear import of the language. Nonetheless, in each case, the Court explicitly ignored the text, turning instead to legislative history and the Court’s own views regarding the intents of the New York and Michigan legislatures.
In 1987, the Stoudemire Court offered an initial interpretation of the relevant statutory language by observing that the original language of Michigan’s habitual offender statutes, enacted by 1927 PA 175, was borrowed almost wholesale from New York’s habitual offender statutes. Stoudemire, supra at 267. Accordingly, the Court referred to the remarks of the New York statutes’ author, New York State Senator Caleb Baumes, who opined that the statutes were aimed at protecting the public from the professional criminal “ ‘who has been convicted once, twice, three times, sentenced and served his time and come . . . out and resumed operations again....’” Id. at 268, quoting Baumes, The Baumes law and legislative program in New York, 52 ABA Rep 511, 521 (1927) (emphasis added in Stoudemire). The Court concluded that New York courts had interpreted the New York statutes in keeping with Baumes’s intent by establishing “that multiple convictions on the same day constitute only one ‘conviction’ for purposes of the habitual offender statute.” Stoudemire, supra at 269, citing People v Spellman, 136 Misc 25; 242 NYS 68 (1930). The Stoudemire Court acknowledged, but rejected, other New York cases that conflicted with Spellman, concluding that “[t]hese opinions do not reflect awareness of the legislative intent clearly expressed by Senator Baumes” and observing that those courts’ construction of the statutes had been superseded when the New York Legislature amended the statutes. Stoudemire, supra at 269 n 14. The Stoudemire Court concluded:
By borrowing New York’s statute in its entirety, the Legislature indicated that it was motivated by the same purpose that underlay the New York statute. The Legislature intended that the habitual offender statute’s fourth-felony provision, like the parallel provision in the New York statute, should apply only to a person who had had three opportunities to reform — who had been convicted and sentenced and then subsequently committed another felony for which he was also convicted and sentenced, and then subsequent to the second conviction committed yet another felony, for which he was again convicted and sentenced. [Id. at 271 (emphasis added).]
The Court also compared the intents of legislatures in other jurisdictions — as interpreted by courts in those jurisdictions — that had adopted methods for counting felonies based on whether the offenses grew out of the same occurrence, were committed on the same day, or were charged in the same indictment. Id. at 272-276. In accord, the Court held, consistently “with the legislative purpose underlying the habitual offender statute, that multiple convictions arising out of a single incident may count as only a single prior conviction for purposes of the statute.” Id. at 278. The Court concluded that, to the extent that the statutory text read otherwise, the Court should focus on legislative intent in order to avoid absurdity, hardship, or injustice. Id. at 266-267.
Significantly, Stoudemire avoided the import of the statutory text, in part, by dismissing the Legislature’s 1978 revisions of the text in 1978 PA 77. Before 1978, the relevant portion of MCL 769.11 stated: “A person who after having been twice convicted within this state of a felony or an attempt to commit a felony .. . commits any felony within this state, is punishable upon conviction as [provided in this section].” (Emphasis added.) Despite the revisions, the Stoudemire majority nonetheless relied on its perceptions of the history of the original 1927 act. The Court explicitly recognized that “the phrase Tf a person has been convicted of 3 or more felonies,’ arguably has a different import than the phrase ‘A person who after having been 3 times convicted ....’” Stoudemire, supra at 278. But the Court dismissed this significant change, concluding that “when considered in the context of the other changes made in the statute it is clear that the Legislature intended only to improve the statute’s grammar, not to alter its underlying meaning.” Id.
In 1990, the Preuss Court refined the Stoudemire holding by clarifying that the prior offenses need not “be separated by intervening convictions or sentences,” but it retained the rule “that a defendant’s prior offenses must arise from separate incidents.” Preuss, supra at 737. Specifically, by reference to the fourth offense habitual offender statute, the Court concluded that
the statute does not require that a fourth offender’s three prior convictions, the sentences for those convictions, or the offenses upon which those convictions and sentences are based, occur in any particular sequence. The statute requires only that the fourth offense be preceded by three convictions of felony offenses, and that each of those three predicate felonies arise from separate criminal incidents. [Id. at 717 (emphasis added).]
Preuss criticized the Stoudemire Court’s “flawed” interpretation of Michigan’s statutes, concluding that the Stoudemire Court had erred in its attempt to divine the intent underlying the New York statutes on which Michigan’s statutes were modeled. Id. at 720, 727-731. For instance, Preuss observed that Stoudemire had “relied erroneously on the only New York decision that held that a fourth offender’s second and third offenses must each follow conviction and sentence on the earlier offense.” Id. at 727. Further, the Preuss Court opined that Senator Baumes’s comments did not establish his intent “on the issue of the sequentiality of prior convictions.” Id. at 729. Perhaps most significantly, the Preuss Court observed that, to the extent that Baumes’s views suggested “that the fourth offense must follow a completed sentence,” his views “conflict[ed] with the language of 1927 PA 175, which literally requires only that the commission of the fourth offense follow three prior ‘convictions,’ not sentences.” Id. at 730 (emphasis in original).
Thus, the Preuss Court acknowledged that the unambiguous statutory language — “If a person has been convicted of any combination of 3 or more felonies or attempts to commit felonies .. . and that person commits a subsequent felony” — refers only to the number of prior felony convictions and “implies that no particular sequence for the first three offenses or convictions was intended.” Id. at 720-721, 730. Nonetheless, the Court chose to disregard this language, opining that “a literal reading of a statute may be modified if that reading leads to a clear or manifest contradiction of the apparent purpose of the act, or if necessary to correct an absurd and unjust result.. . .” Id. at 721. Accordingly, the Court “turn[ed] to sources of legislative intent other than the language to determine whether declining to read into the statute a sequentiality requirement for predicate offenses would contradict the Legislature’s purpose in enacting the statute.” Id. at 721.
In doing so, the Preuss Court erred when it construed the unambiguous terms of the statute by reference to legislative history. Weeder, supra at 497. Ironically, not only did it reject the Stoudemire Court’s attempt at the same task, but its opinion highlights the problems inherent in such attempts by offering a different judicial construction of the inconclusive “history” of the very same enactments. Further, Preuss failed to grapple at all with the import of the 1978 revisions, relying instead — just as the Court had in Stoudemire — on its impressions of the Legislature’s intent when adopting the original 1927 language. On the basis of these impressions, Preuss concluded that the “legislative history of the statute suggests that it was directed at the ‘persistent’ or ‘repeat’ offender.” Preuss, supra at 738. Having reached this conclusion, the Court then interpreted the statute as if these words appeared in its text, stating:
A common-sense interpretation of these phrases is that the Legislature did not have in mind the person who had only one criminal episode in which he managed to commit several different crimes. Instead, “repeat” suggests some time interval between crimes, and “persistent” suggests a criminal who continues in his criminal pursuits after these intervals. Neither of these concepts may easily be reconciled with an interpretation of the statute which would allow a court to impose fourth-offender penalties on a defendant whose three prior convictions arose out of the same criminal incident. \Id.'\
We reject the approaches of both Stoudemire and Preuss, which run counter to principles of statutory construction. Indeed, in criticizing Stoudemire, the Preuss Court reinterpreted the very history on which Stoudemire relied and reached a different result. Thus, these two opinions exemplify the problems inherent in preferring judicial interpretation of legislative history to a plain reading of the unambiguous text. As we have stated, construing an unambiguous statute by relying on legislative history “ ‘[a]t the very most.. . allows the reader, with equal plausibility, to pose a conclusion of his own that differs from that of the majority.’ ” Donajkowski v Alpena Power Co, 460 Mich 243, 259; 596 NW2d 574 (1999), quoting Rogers v Detroit, 457 Mich 125, 164; 579 NW2d 840 (1998) (TAYLOR, J., dissenting), which was overruled by Robinson v Detroit, 462 Mich 439 (2000). Further, “not all legislative history is of equal value .. . In re Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). Some historical facts may allow courts to draw reasonable inferences about the Legislature’s intent because the facts shed light on the Legislature’s affirmative acts. For instance, we may consider that an enactment was intended to repudiate the judicial construction of a statute, or we may find it helpful to compare multiple drafts debated by the Legislature before settling on the language actually enacted. Other facts, however, such as staff analyses of legislation, are significantly less useful because they do not necessarily reflect the intent of the Legislature as a body. Id. Shifting interpretations of the intent of the New York Legislature — particularly as embodied in the comments of a single state senator— certainly fall into this latter category.
Significantly, defendant here essentially concedes that a proper interpretation of the habitual offender statutes precludes the use of a same-incident method for counting prior convictions. Defendant merely advances policy considerations and suggests that the Legislature has acquiesced to the interpretations of the statutes offered by this Court in Stoudemire in Preuss. But, as with attempts at divining legislative intent from legislative history, “legislative acquiescence is an exceedingly poor indicator of legislative intent.” Donajkowski, supra at 258. Instead, “sound principles of statutory construction require that Michigan courts determine the Legislature’s intent from its words, not from its silence.” Id. at 261; see also People v Hawkins, 468 Mich 488, 507; 668 NW2d 602 (2003) (“As we have repeatedly stated, the ‘legislative acquiescence’ prin ciple of statutory construction has been squarely rejected by this Court because it reflects a critical misapprehension of the legislative process.”). As we observed in Donajkowski, “ ‘ [c]ommentators have noted that one can posit myriad reasons explaining the Legislature’s failure to correct an erroneous judicial decision ....’” Donajkowski, supra at 259, quoting Rogers, supra at 164 n 2 (TAYLOR, J., dissenting). Moreover, “ ‘it should not be assumed that the Legislature even agrees it has a duty to correct interpretations by the courts that it considers erroneous.’ ” Donajkowski, supra at 260, quoting Rogers, supra at 164-165 (TAYLOR, J., dissenting). Indeed, as Justice TAYLOR observed, “ ‘[i]n Autio v Proksch Construction Co, 377 Mich 517, 527; 141 NW2d 81 (1966), Justice SOURIS described [the doctrine of legislative acquiescence] as “a pernicious evil designed to relieve a court of its duty of self-correction” ....’” Donajkowski, supra at 260, quoting Rogers, supra at 165 (TAYLOR, J., dissenting). See Donajkowski, supra at 258-262, for a full discussion.
When the Legislature’s language is clear, we are bound to follow its plain meaning. The Legislature is fully capable of amending statutory language if it sees fit to do so. Indeed, legislatures throughout the country have enacted habitual offender statutes that explicitly include same-incident methods for counting prior felonies. Arizona’s habitual offender laws, for instance, explicitly provide: “Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section.” Ariz Rev Stat Ann 13-604(M) (emphasis added). The California Penal Code provides that “any person convicted of a serious felony who previously has been convicted of a serious felony ... shall receive ... a five-year enhancement for each such prior conviction on charges brought and tried separately.” Cal Penal Code 667(a)(1) (emphasis added). The Illinois habitual offender laws offer a particularly helpful comparison because the definition of habitual offender status includes general language somewhat similar to that in our own statutes:
Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault, aggravated kidnapping or first degree murder, and is thereafter convicted of a Class X felony, criminal sexual assault or first degree murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal. [720 III Comp Stat 5/33B-1(a) (emphasis added).]
The statute also explicitly provides, however, that “[a]ny convictions which result from or are connected with the same transaction, or result from offenses committed at the same time, shall be counted for the purposes of this Section as one conviction.” 720 III Comp Stat 5/33B-1(c) (emphasis added).
For these reasons, we overrule Stoudemire and Preuss. “[S]tare decisis is not to be applied mechanically to forever prevent the Court from overruling earlier erroneous decisions determining the meaning of statutes.” Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000). Rather, if a case was incorrectly decided, we have a duty to reconsider whether it should remain controlling law. Id. at 464. In doing so, we “review whether the decision at issue defies ‘practical workability,’ whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision.” Id. These criteria weigh in favor of overruling Stoudemire and Preuss.
Most significantly, the same-incident test has not created reliance interests that will be thwarted by overruling Stoudemire and Preuss; overruling these cases will not cause “significant dislocations” or frustrate citizens’ attempts to conform their conduct to the law. See id. at 466-467. “[T]o have reliance the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event.” Id. at 467. The nature of a criminal act defies any argument that offenders attempt to conform their crimes — which by definition violate societal and statutory norms — to a legal test established by Stoudemire and Preuss. Moreover, to the extent that these cases implicate reliance interests, such interests weigh in favor of overruling them. Michigan citizens and prosecutors should be able to read the clear words of the statutes and “expect... that they will be carried out by all in society, including the courts.” Id.
In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction. [M]
We also note that the factor of practical workability bears little on our decision to overrule our previous erroneous interpretations of the habitual offender laws. The Legislature’s clear directive to count each felony is no less workable — and indeed is arguably simpler to apply in practice — than the current, judicially imposed same-incident rule.
IV RESPONSE TO THE DISSENTS
Justice CAVANAGH concedes that our interpretation “may, arguably, be supported by the language of the habitual-offender statutes . . . .” Post at 73. But his arguments are rooted in his assertion that there are “competing, arguably plausible interpretations .. . .” Post at 74. He then concludes that, because purported competing interpretations are possible, it is appropriate to consult legislative history and apply the rule of lenity. Post at 75-76. To the contrary, as we have explained and as defendant essentially concedes, there is nothing textually ambiguous about the Legislature’s directive to apply habitual offender sentencing laws when “a person has been convicted of any combination of 2 or more felonies or attempts to commit felonies....” MCL 769.11(1).
In his only argument based on the text of the statute, Justice CAVANAGH asserts that the statute’s use of the phrase “subsequent felony” indicates that enhancement does not apply to simultaneous criminal acts. Post at 72. We agree that, if an offender is convicted and sentenced for two simultaneous felonies, neither simultaneous conviction may be used to enhance the sentence for the other under the habitual offender statutes. But Justice CAVANAGH’s extension of this point to imply a same-incident test misinterprets the statute’s use of the word “subsequent.” “Subsequent” describes the sequential relationship between the sentencing felony and the prior convictions (“If a person has been convicted of any combination of. .. felonies or attempts to commit felonies . . . and that person commits a subsequent felony....”). “Subsequent” does not describe a relationship among the prior convictions.
Justice CAVANAGH also purports to rely on “this Court’s consistent statements concerning the purpose of the habitual-offender statutes.” Post at 73. He cites cases from 1929, the 1940s, and, most recently, 1970 and 1976. Post at 70, 73 n 6, and 73. Yet, as Justice CAVANAGH acknowledges, the Legislature amended the statutes in 1978. 1978 PA 77. He ignores the import of the 1978 revisions, as did the Court in Stoudemire and Preuss. Thus, he urges that “in more than 150 years, no Michigan court has ever held, until today, that convictions for multiple crimes committed in a single criminal transaction count as separate convictions for habitual-offender purposes.” Post at 78, citing People v Palm, 245 Mich 396, 400; 223 NW 67 (1929). Justice KELLY similarly opines that the “1978 amendments did not alter the command that ‘multiple convictions arising out of a single incident may count as only a single prior conviction under the statute ....’” Post at 86. But, instead of explaining this conclusory statement, she merely cites Preuss. Post at 86-87.
We reject the dissents’ suggestions that this Court should divine legislative intent not from the Legislature’s enactments, but from precedent of this Court that preexisted those enactments. Indeed, this Court addressed this very reasoning when we overruled Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994), in Robinson. We explained:
The majority in Dedes interpreted the phrase “the proximate cause” to mean “a proximate cause.” It did this on the basis of an analysis that not to do so would produce a marked change in Michigan law, and that the Legislature, in its “legislative history,” gave no indication that it understood that it was making such a significant change. This approach can best be described as a judicial theory of legislative befuddlement. Stripped to its essence, it is an endeavor by the Court to use the statute’s “history” to contradict the statute’s clear terms. We believe the Court had no authority to do this. [Robinson, supra at 459-460.]
The Legislature has no duty to satisfy us that its legislative enactment is a “good” one. Legislation must be constitutional; this alone is enough. Once the Legislature has cleared the hurdle of constitutionality, we are to treat its enactment as law. When, as here, the text enacted by the Legislature and signed by the Governor is unambiguous, our duty is to uphold its plain meaning.
Both dissents’ analyses would essentially require the Legislature to explain to this Court’s satisfaction its reasons for changing the statutory text. The Legislature has no such duty to us and, because its text is clear, it is irrelevant whether the legislators concluded that this Court misinterpreted the pre-1978 statutes in its previous decisions or, instead, that a new policy for counting prior felonies was preferable. Significantly, various legislators’ reasons for enacting the text may have differed and may have been rooted in either of these conclusions. But their agreed-on choice of language is controlling. If that language is perfectly forthright, our task is simply to implement it. We reject the implications of the dissents’ views, which would ultimately require the Legislature, when amending laws, to add redundant explanations for its otherwise plain language such as: “By X, we mean X. We do not mean the Supreme Court’s previous interpretations of Y.”
We express no opinion regarding the correctness of any court’s interpretations of the pre-1978 versions of the statutes. Questions concerning earlier versions of the text are not before us. Moreover, to whatever extent courts correctly divined past legislatures’ intents using previously enacted language, those intents should not guide our interpretation of the unambiguous language of the current versions of the statutes; the acts of past legislatures do not bind the power of successive legislatures to enact, amend, or repeal legislation. Studier v Michigan Pub School Employees’ Retirement Bd, 472 Mich 642, 660; 698 NW2d 350 (2005). In this case, we acknowledge the Legislature’s explicit changes to the statutory language and, in doing so, by no means do we employ “a new view of statutory interpretation,” as Justice CAVANAGH contends. Post at 78 n 12. To the contrary, we consider the statute’s plain language, and it is difficult to imagine how the Legislature could possibly have written the statute to more clearly indicate that all prior convictions count than by stating that “[i]f a person has been convicted of any combination of 2 or more felonies or attempts to commit felonies . . . and that person commits a subsequent felony within this state, the person shall be punished [as provided in this section].” MCL 769.11(1) (emphasis added).
Significantly, Justice CAVANAGH’s central contention is that the habitual offender statutes “are plainly intended to apply to habitual offenders, individuals who persist in criminal activity regardless of their prior convictions.” Post at 70. But the goal of punishing persistent offenders by no means requires a same-incident test. Rather, the Legislature apparently and reasonably saw fit to punish an offender who has committed multiple prior felonies in a harsher manner than an offender who has committed only a single prior felony. We see no reason why the Legislature may not punish persistence by discriminating in a graduated fashion among those who have committed a single prior felony, MCL 769.10, those who have committed two prior felonies, MCL 769.11, and those who have committed three or more prior felonies, MCL 769.12, regardless of whether the offender committed the prior felonies on a single occasion. In sum, Justice CAVANAGH’s analysis is fundamentally flawed because it offers a judi cial construction to deconstruct an unambiguous statute. Nothing about the statute’s text renders it susceptible to multiple interpretations and, therefore, judicial “construction” is not even permissible. Further, Justice CAVANAGH repeats the mistakes of the Court in Stoudemire and Preuss by dismissing the 1978 revisions of the habitual offender laws and, instead, relying on debatable legislative history and court cases addressing the previous versions of the statutes.
Finally, Justice Kelly’s exegesis of the doctrine of stare decisis misses the mark. As we have already discussed, the recent Stoudemire and Preuss decisions are not part of a long line of cases interpreting identical statutory language; rather, Stoudemire and Preuss purported to interpret the post-1978 language. Moreover, the Stoudemire and Preuss decisions are themselves inconsistent precedents. Justice KELLY would maintain Preuss as stare decisis because it is workable, free from absurdity, “not mischievous in practice,” and no changes in the law or facts undermine it. Post at 89. But the same things can be said of Stoudemire. Accordingly, the heart of Justice KELLY’s analysis contradicts her preference for Preuss, which itself overruled Stoudemire in part. Indeed, as we have thoroughly discussed, Preuss exemplifies the need for adhering to plain statutory language instead of upholding precedent merely for precedent’s sake. The Preuss Court followed Stoudemire in choosing to avoid the plain statutory text. Stoudemire, supra at 278; Preuss, supra at 720-721. But Preuss then overruled Stoudemire in part after selectively reinterpreting other states’ caselaw, comments by legislators, and committee reports addressing the original 1927 Michigan act and the prior New York act. For these reasons, upholding Preuss certainly would not serve to “ ‘avoid an arbitrary discretion in the courts Post at 81, quoting The Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter ed, 1961). To the contrary, binding the Court to “strict rules” — such as the tenets of statutory interpretation —avoids arbitrariness. Post at 81. Moreover, as we have explained, there is nothing “destabilizing” about today’s decision under Robinson or otherwise. See post at 80, 82. No undue hardship will result because of reliance on our previous holdings, nor will we frustrate citizens’ attempts to conform their conduct to the law. Robinson, supra at 464, 466-467. In the unlikely event that those who would commit additional felonies in this state laid plans for future crime in reliance on receiving less punishment than the plain language of the habitual offender statutes prescribes, Justice KELLY correctly assumes that such reliance garners little sympathy in our eyes. Post at 82-83 n 11.
V CONCLUSION
Michigan’s habitual offender laws clearly contemplate counting each prior felony conviction separately. The text of those laws does not include a same-incident test. This Court erred by judicially engrafting such a test onto the unambiguous statutory language. Accordingly, we overrule Preuss and Stoudemire.
Defendant was properly sentenced as a third offense habitual offender because he “ha[d] been convicted of... 2 or more felonies ... and committed] a subsequent felony within this state. . . .” MCL 769.11(1). Because defendant was properly sentenced, resentencing is not required on the basis of his claim that he received ineffective assistance of counsel. When an attorney fails to raise “an objection that would have been supported by a decision which subsequently was overruled,” a defendant cannot show that he was prejudiced within the meaning of Strickland. Lockhart v Fretwell, 506 US 364, 366; 113 S Ct 838; 122 L Ed 2d 180 (1993). Under these circumstances, a focus on “mere outcome determination” is insufficient because the result of the proceeding is not fundamentally unfair or unreliable. Id. at 369. “To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not entitle him.” Id. at 369-370, citing United States v Cronic, 466 US 648, 658; 104 S Ct 2039; 80 L Ed 2d 657 (1984).
Accordingly, we affirm defendant’s sentences. We deny leave to appeal with respect to defendant’s remaining issues because he has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
Taylor, C.J., and YOUNG and MARKMAN, JJ., concurred with Corrigan, J.
People v Gardner; unpublished opinion per curiam of the Court of Appeals, issued April 13, 2003 (Docket No. 238186).
469 Mich 975 (2003).
People v Gardner, unpublished order of the Court of Appeals, entered July 10, 2006 (Docket No. 267317).
477 Mich 1096 (2007).
US Const, Am VI.
MCL 769.10(1); MCL 769.11(1); MCL 769.12(1).
See Preuss, supra at 720.
Michigan has a primarily indeterminate sentencing scheme. For most crimes, courts impose both a minimum and a maximum sentence. The maximum sentence is set by statute on the basis of the sentencing offense. The recommended minimum sentence range is set by statutory guidelines that take into account the circumstances of the particular offense and offender. MCL 769.8; MCL 769.34; People v Harper, 479 Mich 599, 612-613; 739 NW2d 523 (2007).
MCL 769.10(1); MCL 769.11(1); MCL 769.12(1).
MCL 769.12(1) establishes enhanced maximum sentences for offenders with three or more prior felony convictions. For ease of reference, we call these offenders “fourth offense habitual offenders.”
Defendant’s appointed attorneys did not raise the error at sentencing, in a motion for resentencing, or in a motion for remand in the Court of Appeals. Accordingly, defendant properly raises his argument in connection with a claim that he was denied his Sixth Amendment right to effective assistance of counsel. Francisco, supra at 90 n 8. An attorney is ineffective for Sixth Amendment purposes if his performance fell below an objective standard of reasonableness and the defendant was prejudiced as a result. Strickland v Washington, 466 US 668, 688, 692; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). Any amount of additional prison time imposed as a result of an attorney’s deficient performance has Sixth Amendment significance. Glover v United States, 531 US 198, 203; 121 S Ct 696; 148 L Ed 2d 604 (2001). Although we accord substantial deference to an attorney’s strategic judgments, we can identify no strategic reason for the failure of defendants’ attorneys here to raise such an obvious point of error that increased the possible minimum prison sentence to which defendant was exposed. Therefore, defendant has properly stated a claim of ineffective assistance of counsel.
For the same reasons, defendant has also properly alleged good cause and actual prejudice, as is necessary to seek relief in a motion for relief from judgment. MCR 6.508(D)(3). A defendant may establish good cause for not raising an argument for relief sooner by showing that his appellate attorney rendered ineffective assistance by failing to raise the issue in a proper post-trial motion or first-tier appeal. People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995) (opinion by Boyle, J.). Appellate counsel’s failure to “assert all arguable claims” or decision to “winnow out weaker arguments and focus on those more likely to prevail is not evidence of ineffective assistance.” Id. at 391. Here, however, as noted, we cannot identify any excuse for counsel’s failure to raise an obvious error that would have guaranteed resentencing under Francisco. Because the nature and strength of the argument are obvious, the omission is not evidence of a reasonable professional decision to winnow out weaker arguments.
“[O]nly a few provisions are truly ambiguous and... a diligent application of the rules of interpretation will normally yield a ‘better,’ albeit perhaps imperfect, interpretation of the law. ...” Lansing Mayor v Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840 (2004). A provision is not ambiguous just because “reasonable minds can differ regarding” the meaning of the provision. Id. at 165. “Rather, a provision of the law is ambiguous only if it ‘irreconcilably conflict[s]’ with another provision, or when it is equally susceptible to more than a single meaning.” Id. at 166 (citation omitted). See Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663 NW2d 447 (2003), for an example of truly ambiguous contractual language.
Justice Archer vigorously dissented in Stoudemire, arguing that the clear statutory language did not impose or permit a same-incident test. Stoudemire, supra at 282, 289 (Archer, J., dissenting). Justice Archer observed that, since 1865, this Court has recognized a fundamental rule of statutory construction: “When the language used in a statute is plain and unambiguous, a common-sense reading of the provision will suffice. No interpretation is necessary.” Id. at 280. Justice Archer dissented in Preuss for the same reasons. Preuss, supra at 743 (Archer, J., concurring in part and dissenting in part).
The change was consistent throughout the habitual offender laws. For instance, before 1978, MCL 769.12 similarly stated: “A person who after having been 3 times convicted within this state, of felonies or attempts to commit felonies ....” (Emphasis added.)
Justice Cavanagh offers the puzzling assertions that “[t]here has been no change in the statutory language between 1940 and today that affects its inapplicability to ‘different counts growing out of the same act,’ ” quoting People v Podsiad, 295 Mich 541, 547; 295 NW 257 (1940), and that we “fail[] to identify the changes in the language that would have had this effect.” Post at 73 n 6, 77.
Justice CAVANAGH incorrectly asserts that Preuss “found nothing in the amended language to compel a change in the longstanding requirement that ‘multiple convictions arising out of a single incident may count as only a single prior conviction under the statute.’ ” Post at 78, quoting Preuss, supra at 720. To the contrary, both Preuss and Stoudemire recognized that the new language “arguably has a different import,” Stoudemire, supra at 278, and “implies that no particular sequence for the first three offenses or convictions was intended.” Preuss, supra at 721. But in each case, the Court avoided the plain meaning of the statutory text in favor of legislative history or on the basis of the Court’s conclusion that the plain language of the text produced an absurd or unjust result. Preuss, supra at 721; Stoudemire, supra at 266, 271, 278.
There is no need to address the merits of the absurd results rule in this opinion. Even assuming the existence of such a rule of interpretation, the result reached here is by no means absurd. A reasonable lawmaker could easily have intended the result reached here. That is, such a lawmaker could easily have intended that courts count each separate felony conviction in determining habitual offender status. There is nothing at all absurd about treating a defendant who has been convicted of three felonies as a third offense habitual offender.
Indeed, the Preuss Court itself proceeded to examine inconclusive statements from a report of the Commission of Inquny Into Criminal Procedure. Preuss, supra at 721-722, citing State of Michigan, Report of the Commission of Inquiry Into Criminal Procedure (February 8, 1927). The Court noted the commission’s desire to improve former repeat-offender statutes that imposed escalating punishments on the basis of preceding punishments. Preuss, supra at 722-723. The Court concluded that the commission’s goals were to “make it tougher for criminals to avoid apprehension, conviction, and adequate punishment,” to “apply [habitual offender enhancements] to a broader class of criminals than they would have applied to had the prior language about prior sentence been retained,” and to “punishD repeat offenders harshly.” Id. at 724. Significantly, the Court acknowledged that the report “does not contain any express statement concerning the commission’s intent regarding whether a defendant’s prior convictions, offenses, or sentences must occur in any particular sequence in order for him to be subject to fourth-offender penalties.” Id. at 722. Indeed, the new provision in its original 1927 form — which applied when an offender had been “three times convicted” — “literally applied to defendants who had previously been convicted three times before they committed their fourth offense, even if they had not yet been sentenced on any or all of those prior convictions.” Id. at 724. Nonetheless, the Court cited the report, among other authorities, as evidence that the Legislature intended a same-incident test. Id. at 738.
As perhaps best put by United States Supreme Court Justice Antonin Scalia,
[c]ommittee reports, floor speeches, and even colloquies between Congressmen ... are frail substitutes for bicameral vote upon the text of a law and its presentment to the President.... It is at best dangerous to assume that all the necessary participants in the law-enactment process are acting upon the same unexpressed assumptions. And likewise dangerous to assume that, even with the utmost self-discipline, judges can prevent the implications they see from mirroring the policies they favor. [Thompson v Thompson, 484 US 174, 191-192; 108 S Ct 513; 98 L Ed 2d 512 (1988) (Scalia, J., concurring) (citations omitted).]
The dissenters would have us engage in a guessing game regarding the meaning of legislative silence. For instance, Justice Cavanagh notes that, before Congress amended 18 USC 924(e)(1) to explicitly include a same-incident test, courts had already begun grafting such a test onto the statute. Post at 76-77. But we rarely know whether a legislature’s intent in amending a statute reflects the intent it originally had when it enacted the statute. Indeed, when a conforming amendment occurs in the wake of a judicial decision, for all we know, the judicial decision may have sparked debate because some legislators perceived the decision as error, but the legislature may ultimately have concluded that the incorrect interpretation nonetheless reflected the better current policy. For these reasons, we decline to second-guess the Legislature when it has spoken unambiguously. It is not this Court’s role to correct'judicially perceived mistakes rooted in the Legislature’s silence or inaction. To the contrary, our separate duty is to engage in self-correction when appropriate. Donajkowski, supra at 260.
See also Ariz Rev Stat Ann 13-604(S) (“A person who... stands convicted of a serious offense .. . , whether a completed or preparatory-offense, and who has previously been convicted of two or more serious offenses not committed on the same occasion shall be sentenced to life imprisonment. ...”) (emphasis added).
Also compare Mo Rev Stat 558.016(3) (“A ‘persistent offender’ is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times" (emphasis added); Okla Stat tit 21, § 51.1(B) (“Felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location." (emphasis added)); 18 USC 924(e)(1) (providing that under what was formerly titled the federal Armed Career Criminal Act, “[i]n the case of a person who violates [18 USC 922(g)] and has three previous convictions by any court referred to in [18 USC 922(g)(1)] for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years”) (emphasis added).
These statutes exemplify other legislatures’ use of plain language to establish same-incident tests. We note them in contrast to the text of Michigan’s statutes. We do not “read positive meaning into Michigan legislative silence regarding, for instance, a Missouri statute,” as Justice Cavanagh suggests. Post at 76 n 10. Justice Cavanagh has it backwards. The Legislature has spoken through its plain language, which we seek to uphold. It is defendant and our dissenting colleagues who wish to import a same-incident test where there is none, assuming that the Legislature’s silence in the wake of Stoudemire and Preuss signifies approval of the test those cases added.
Justice Kelly similarly opines that “the language of the habitual offender statutes is at least equally supportive of the conclusion that the statues are inapplicable to multiple convictions arising from the same act.” Post at 86.
Justice Kelly cites Justice Cavanagh on this point. Post at 86 n 24.
Concerning Justice Kelly’s criticisms of the majority for its supposed “disregard” for the doctrine of stare decisis, we reference the concurring statement of Justice Markman in Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 223; 731 NW2d 41 (2007). | [
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YOUNG, J.
This case concerns judicial review of an administrative agency’s interpretation of a statute. This Court has not always been precise in articulating the proper standard for reviewing such interpretations. However, in accordance with longstanding Michigan precedent and basic separation of powers principles, we hold and reaffirm that an agency’s interpretation of a statute is entitled to “respectful consideration,” but courts may not abdicate their judicial responsibility to interpret statutes by giving unfettered deference to an agency’s interpretation. Courts must respect legislative decisions and interpret statutes according to their plain language. An agency’s interpretation, to the extent it is persuasive, can aid in that endeavor.
In this case, the Court of Appeals did not properly review the agency’s interpretation of the statute. Despite having understandable reservations about the agency’s interpretation, the Court affirmed the agency’s interpretation merely because it was “plausible.” However, the plain language of the statute does not support the agency’s interpretation. Therefore, we reverse the Court of Appeals decision to uphold the agency’s construction of the statute. Under the proper interpretation of the statute, SBC Michigan (SBC) did not violate the statute as the Public Service Commission (PSC) had erroneously concluded. However, we agree with and affirm the conclusion of the Court of Appeals that the PSC had no jurisdiction over wiring inside a customer’s home. Thus, we remand this case to the PSC with the instruction that it must modify its August 1, 2005, order to eliminate any PSC regulation of “inside wiring.”
Accordingly, the Court of Appeals judgment is reversed in part and affirmed in part and the case is remanded to the PSC for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
This case began in April 2001, when William J. and Sandra M. Rovas, SBC customers, called to report an interruption in their service. SBC sent a technician, who checked the wiring outside their home and erroneously determined that the problem was inside the customers’ home. Because the technician believed that the problem was inside the home, he left a note informing the customers that they would be charged $71 for the service call. Eventually, SBC realized the error and reversed the charge, but not before sending the customers a bill for the $71.
Despite the fact that SBC reversed the erroneously sent bill, the customers filed a complaint with the PSC alleging, inter alia, a violation of § 2502(l)(a) of the Michigan Telecommunications Act, MCL 484.2101 et seq. The PSC agreed with the customers and found that SBC’s statements to the customers that (1) the problem was inside their home and (2) they owed SBC $71 for the service call were both “false,” and therefore, constituted violations of § 2502(1)(a). For erroneously sending a retracted $71 bill, the PSC fined SBC $15,000 for violating § 2502(l)(a).
The Court of Appeals affirmed the PSC decision in an unpublished opinion per curiam, noting, however, that given the context of the term “false” in the statute, “it is plausible this provision is not intended to proscribe a statement that is simply not true or correct, but is only intended to proscribe those statements tending to deceive or mislead.” Nonetheless, the Court of Appeals affirmed the PSC because the panel believed it was “charged with giving great deference to the PSC’s construction of a statute which the Legislature has required the PSC to enforce, and therefore the mere establishment of an alternative interpretation of a statute to that given by the PSC will not satisfy [SBC’s] burden of proving the PSC’s interpretation was unlawful or unreasonable.” However, the panel was concerned that a portion of the PSC order implementing its interpretation was “ambiguous” and remanded for clarification. Specifically, the panel and SBC were concerned that the order required SBC to enter each consumer’s home to verify that the problem originated inside the house. This Court denied SBC’s interlocutory application for leave to appeal.
On remand, the PSC clarified its order by noting that “SBC need not enter a customer’s premises every time that SBC is called upon to make a service trip”; however, SBC may not charge for services “if those services are reasonably necessary to diagnose problems attributable to its own facilities or exclude those facilities as a possible cause of service disruptions.”
In a published opinion, the Court of Appeals affirmed in part and remanded to require the PSC to issue a modified order. In doing so, the panel relied on federal law and held that “inside wiring services” (services for problems with the wiring inside the customer’s home) were not subject to regulation by the PSC because such problems are not within the PSC’s authority. Thus, the panel held that the PSC could not regulate “correct determination^ by SBC excluding its facilities as the cause of service disruption” because a correct determination that the problem originated inside the customer’s home necessarily involves “inside wiring.” Both the PSC and SBC have appealed to this Court, and this Court granted both applications.
STANDARD OF REVIEW
As a general proposition, this Court reviews de novo questions of law, such as the proper interpretation of a statute. However, the primary issue in this case is the proper standard of review of an administrative agency’s construction of a statute. That standard of review is discussed below.
ANALYSIS
This case implicates the powers, and the boundaries of the powers, of all three branches: the Legislature, the judiciary, and administrative agencies, which are part of the executive branch. Thus, separation of powers principles will aid in the analysis of the proper consideration due an administrative agency’s interpretation of a statute.
The people of the state of Michigan have divided the powers of their government “into three branches: legislative, executive and judicial.” Furthermore, “[n]o person exercising the powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”
“The legislative power of the State of Michigan is vested in a senate and a house of representatives.” Simply put, legislative power is the power to make laws. In accordance with the constitution’s separation of powers, this Court “cannot revise, amend, deconstruct, or ignore [the Legislature’s] product and still be true to our responsibilities that give our branch only the judicial power.” While administrative agencies have what have been described as “quasi-legislative” powers, such as rulemaking authority, these agencies cannot exercise legislative power by creating law or changing the laws enacted by the Legislature.
Since the time of Marbury v Madison, interpreting the law has been one of the defining aspects of judicial power. “Although we may not usurp the lawmaking function of the legislature, the proper construction of a statute is a judicial function, and we are required to discover the legislative intent.” Administrative agen cies exercise what have been described as “quasi-judicial” powers. However, such power is limited and is not an exercise of constitutional “judicial power.” The primary “judicial” function exercised by administrative agencies is confined to conducting contested cases, like the one at issue here. These administrative contested cases resemble trials. Constitutionally and statutorily, these administrative fact-finding exercises are entitled to a degree of deference defined by statute and our constitution. However, fact-finding in an administrative contested case, much like in a trial before a circuit court, is a far different endeavor than construing a statute.
I. REVIEW OF AN ADMINISTRATIVE AGENCY’S INTERPRETATION OF A STATUTE
With these separation of powers principles in mind, we now turn to the proper standard, under Michigan law, for reviewing an agency’s construction of a statute.
A. MICHIGAN JURISPRUDENCE
Unlike the United States Constitution, the Michigan Constitution specifically recognizes administrative agencies. Furthermore, the constitution explicitly provides for judicial review of administrative decisions:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported hy competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided hy law.
In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation.[ ]
The constitutional provision provides for review to determine: (1) that the decision is authorized by law, and (2) if a hearing is required, that the decision is supported by record evidence. However, the provision does not stand for the proposition that agencies can assume this Court’s constitutional role as the final arbiter of the meaning of a statute.
Before evaluating the standard of review applicable to an agency’s interpretation of a statute, it is helpful to delineate the agency functions not at issue in this case. This distinction is important because there are different standards of review for different agency functions. As noted earlier, agencies perform both “quasi-legislative” and “quasi-judicial” functions. First, there is the rule-making function. A reviewing court must determine whether the Legislature, in accordance with the separation of powers principles discussed, properly delegated authority to the agency to promulgate the rule at issue. That question concerns the constitutionality of the statute, a legal issue that this Court reviews de novo. If the Legislature has properly delegated the rulemaking authority, then the only question before the court is whether the agency “has exceeded its authority granted by the statute.”
The other agency function not at issue in this case is fact-finding in contested cases. The constitution requires that such agency findings be “supported by competent, material and substantial evidence on the whole record.” Review of an administrative agency’s fact-finding is akin to an appellate court’s review of a trial court’s findings of fact in that an agency’s findings of fact are entitled to deference by a reviewing court. In its fact-finding capacity, the agency has reviewed evidence, such as witness testimony, and it is in the best position to evaluate the credibility and weight of that evidence. Similar to the clear error standard of review for circuit courts, under the constitutional and statutory standards of review, a reviewing court must ensure that the finding is supported by record evidence; however, the reviewing court does not conduct a new evidentiary hearing and reach its own factual conclusions, nor does the reviewing court subject the evidence to review de novo.
Keeping these other administrative functions distinct from review of an agency’s interpretation of a statute during a contested case is very important to ensure that the appellate court applies the proper standard of review. A review of our own cases suggests that when courts are unmindful of these differing functions, they also tend to muddle the distinct standards of review that apply to each. This Court has uniformly held that statutory interpretation is a question of law that this Court reviews de novo. Thus, concepts such as “abuse of discretion” or “clear error,” which are similar to the standards of review applicable to other agency functions, simply do not apply to a court’s review of an agency’s construction of a statute.
Nonetheless, the Court of Appeals panel in this case did not apply a de novo standard of review when assessing the PSC’s interpretation of MCL 484.2502(l)(a). While there are some opinions that seem to stand for the proposition that agency statutory interpretations are reviewed for “reasonableness” or an “abuse of discretion,” those standards do not apply to the interpretation of a statute, and they threaten the separation of powers principles discussed earlier by allowing the agency to usurp the judiciary’s constitutional authority to construe the law and infringe on the Legislature’s lawmaking authority.
However, “[w]e acknowledge that our past case law has not been entirely consistent regarding the subject of the amount of deference to be given when an administrative agency with expertise in its field construes a statute governing the area regulated by the agency.” We believe that this is due in large part to the Court’s failure consistently to use the same articulation of the proper standard of review for an agency’s interpretation of a statute and to carefully apply the correct standards of review for different types of agency action.
This Court announced the proper standard of review for agency statutory construction more than 70 years ago in Boyer-Campbell v Fry, which dealt with the proper construction of the General Sales Tax Act. The Boyer-Campbell Court held that
the 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.
Boyer-Campbell remains good law, and it has been used repeatedly by this Court. However, in some of our later cases, this Court and the Court of Appeals have employed recitations of standards that do not follow the language of Boyer-Campbell or apply to review of agency’s statutory construction. While these recitations do not necessarily substantively conflict with Boyer-Campbell, they add to the confusion discussed earlier. For example, inLudington Service Corp v Acting Comm’r of Ins, this Court affirmed the Court of Appeals decision to overturn one portion of the agency’s decision because the agency relied on an interpretation of a statute that conflicted with the statute’s plain meaning. First, the Court reversed a number of the agency’s factual determinations because they were not supported by “competent, material, and substantial evidence.” The Court then turned to the statutory interpretation question and used the following standard of review in reaching that conclusion:
Finally, while this Court affords deference to an agency’s findings of fact, we can always review an agency’s legal findings. Both the Michigan Constitution and the applicable statute permit this Court to set aside the commissioner’s findings if they are in violation of the constitution or a statute, or affected by other substantial and material error of law.[ ]
To that end, the Court held that “although this Court affords an agency some statutory deference, the agency’s interpretation is not binding on this Court, and cannot be used to overcome the statute’s plain meaning.” This standard does not directly conflict with Boyer-Campbell because the plain meaning of the statute still controlled the outcome; however, by referring to “deference” with regard to both the agency’s fact-finding and its statutory interpretation, the Court sowed the seeds of confusion.
Another example of a confusing articulation of the standard is illustrated in Adrian School Dist v Michigan Pub School Employee Retirement Sys, where this Court held that “[t]he agency must interpret the statute it administers, and its interpretations are entitled to great weight.” The case cited for this proposition, Magreta v Ambassador Steel Co, did not actually use the words “great weight,” but, rather, quoted the general Boyer-Campbell standard discussed earlier. While the Adrian School Dist Court independently construed the statute, by employing a term such as “great weight,” this Court again allowed for the possibility that the judiciary must defer to the agency’s interpretation of the statute.
A similar blurring of standards occurred in Catalina Marketing Sales Corp v Dep’t of Treasury, in which this Court held that, while it “affords deference to the construction of statutory provisions by any particular department of the government and used for a long period, the department’s interpretation is not binding on this Court and cannot be used to overcome the statute’s plain meaning. . . .” Catalina adds the concept of deference to longstanding agency interpretations to the general deference referenced in Ludington: Like Ludington, Catalina recognizes the fundamental requirement that the statute’s plain meaning controls. Furthermore, the Court rejected the agency’s interpretation because it conflicted with the plain meaning.
Because this Court’s decisions that used imprecise language still made clear that the plain language of the statute was the controlling legal consideration, the varying deference standards articulated in them seem to have had negligible outcome determinative effect. However, by employing words such as “deference,” which can imply that the judiciary must accede to the agency’s interpretation of a statute, this Court has unmistakably added to the confusion in this area of the law.
Given this Court’s difficulty in hewing to the correct standard it set forth in Boyer-Campbell, the Court of Appeals has understandably relied on some of the confusing articulations of standards made by this Court and thereby used the erroneous “deference” or “great weight” standard to allow agencies improperly to assume the courts’ role as the final arbiter of a statute’s meaning. For instance, the Court of Appeals panel in this case quoted In re Michigan Cable Telecom Ass’n Complaint for the proposition that
[a]s a general rule, we will defer to the construction placed on a statute by the governmental agency charged with interpreting it, unless the agency interpretation is clearly erroneous. An agency’s initial interpretation of new legislation is not entitled to the same measure of deference as is a longstanding interpretation. However, merely establishing that smother interpretation of a statute is plausible does not satisfy a party’s burden of proving by clear and convincing evidence that the PSC’s interpretation is unlawful or unreasonable.
This hybrid “standard of review” is a prime example of the mixing and matching of the standards of review applicable to the different functions of an agency. Relying on this muddled and unduly deferential “standard,” the panel acceded to an agency interpretation that the panel believed to be contrary to the plain meaning of the statute. When considering an agency’s statutory construction, the primary question presented is whether the interpretation is consistent with or contrary to the plain language of the statute. While a court must consider an agency’s interpretation, the court’s ultimate concern is a proper construction of the plain language of the statute.
By using a deferential standard inconsistent with Boyer-Campbell, the panel below abdicated its judicial authority to construe statutes. By acceding to the agency’s interpretation, the panel gave greater consideration to the agency’s interpretation than it would have given a circuit judge’s construction. Given that statutory construction is the domain of the judiciary, it is hard to imagine why a different branch’s interpretation would be entitled to more weight than a lower court’s interpretation. As established in Boyer-Campbell, the agency’s interpretation is entitled to respectful consideration and, if persuasive, should not be overruled without cogent reasons. Furthermore, the agency’s interpretation can be particularly helpful for “doubtful or obscure” provisions. But, in the end, the agency’s interpretation cannot conflict with the plain meaning of the statute.
“Respectful consideration” is not equivalent to any normative understanding of “deference” as the latter term is commonly used in appellate decisions. To avoid further confusion, courts should rely on the Boyer-Campbell articulation of the standard of review for an agency’s interpretation of a statute instead of more recent cases, which have erroneously introduced inappropriate concepts such as “deference.” Furthermore, courts should carefully separate the different agency functions under consideration and apply the proper standard of review for each.
B. A NOTE ON THE FEDERAL CHEVRON DEFERENCE DOCTRINE
Some have urged that this Court adopt the Chevron deference doctrine, which federal courts use to review agency interpretations. The Chevron test requires the court to make two inquiries. First, the court must consider “whether Congress has directly spoken to the precise question at issue.” This inquiry may be dis-positive because “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” The separation of powers principles discussed above provide the basis for this inquiry and result because “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”
However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” The Chevron test for the permissibility of the agency’s construction differs slightly depending on whether Congress explicitly or implicitly delegated authority to the agency “to fill any gap” left by Congress. “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” An explicit delegation largely refers to the authority bestowed by Congress upon agencies to promulgate rules to enforce a statute. On the other hand, an implicit delegation arises when the legislation does not address a specific factual situation or where the statute is ambiguous.
If Congress has given the agency an explicit delegation, then the “regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” When the delegation is implicit, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” To that end, the Supreme Court has “recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.”
While the Chevron inquiries are comparatively simple to describe, they have proven very difficult to apply. This Court has never adopted Chevron for review of state administrative agencies’ statutory interpretations, and we decline to adopt it now. The vagaries of Chevron jurisprudence do not provide a clear road map for courts in this state to apply when reviewing administrative decisions. Moreover, the unyielding deference to agency statutory construction required by Chevron conflicts with this state’s administrative law jurisprudence and with the separation of powers principles discussed above by compelling delegation of the judiciary’s constitutional authority to construe statutes to another branch of government. For these reasons, we decline to import the federal regime into Michigan’s jurisprudence.
II. PROPER INTERPRETATION OF MCL 484.2502(l)(a)
Having determined that agencies’ constructions of statutes are entitled to respectful consideration, but are not binding on courts and cannot conflict with the plain language of the statute, we now turn to review § 2502(1)(a), which provides:
(1) A provider of a telecommunication service shall not do any of the following:
(a) Make a statement or representation, including the omission of material information, regarding the rates, terms, or conditions of providing a telecommunication service that is false, misleading, or deceptive.
The critical question here was the meaning of “false” and, thus, whether this statute penalized merely factually inaccurate statements, as the PSC concluded, or whether “false” includes a requirement that the inaccuracy be intentionally communicated. Importantly, the PSC did not actually provide an analysis for its “construction” of the statutory language. In its February 25, 2002, order, the PSC discussed the parties’ arguments concerning this section. The hearing referee had found that the “inaccuracies” at issue stemmed from the difficulties inherent in diagnosing the problem experienced by the SBC customers. SBC argued that the “misdiagnosis” in this case was not the type of activity proscribed by the statute and the hearing referee agreed. The customers and the PSC staff contrarily argued that any untrue statement was subject to the statutory sanctions. The PSC agreed with the customers and the PSC staff, rejecting the hearing referee’s application of the statute. In reaching that conclusion, the PSC first discussed three facts: (1) when the customers reported the problem, SBC’s automated system informed them that they would only be charged for problems with inside wiring; (2) the technician, without entering the customers’ house, informed the customers that the problem was inside and that the customers owed $71; and (3) the customers received an invoice for $71 from SBC’s automated billing process, even though SBC had determined that the problem was with the outside wiring. The PSC then concluded that, “[b]ased on these facts, the company’s statements to [the customers] on April 3 and 4, 2001 were false,” and therefore, SBC violated § 2502(l)(a). However, the PSC did not conclude that the false statements were intended to deceive.
In reaching this conclusion, the PSC did not analyze the language of the statute, nor did it provide a rationale for its unexplained conclusion that the statutory term “false” meant “untrue” or “incorrect.” The PSC’s bald assertion that SBC violated the statute is not a “construction” of the statute. Therefore, under the Boyer-Campbell standard, there is little here for any reviewing court to “respectfully consider.” The PSC, having failed to offer a construction of its own that would warrant any consideration, requires that we provide, as the panel below should have provided, an interpretation of the plain language of the statute.
The Court of Appeals acknowledged that “false” has multiple meanings, and the panel listed the following definitions:
“1. not true or correct; erroneous; wrong: a false statement. 2. uttering or declaring what is untrue; lying: a false witness. 3. not faithful or loyal; treacherous; hypocritical: a false friend. 4. tending to deceive or mislead; deceptive: a false impression .. . .”[ ]
The panel indicated that it favored the “tending to deceive or mislead” fourth definition because of the statutory context. Furthermore, the panel stated that it found insufficient evidence in the record to support an intent by SBC to mislead its customers. However, relying on an erroneous standard of review, the panel upheld the decision of the PSC because the agency’s interpretation “was quite literal and certainly not unlawful or unreasonable.”
By ignoring the statutory context, the PSC’s implicit interpretation of “false” was erroneous. “As a general matter, words and clauses will not be divorced from those which precede and those which follow. When construing a series of terms ... we are guided by the principle that words grouped in a list should be given related meaning.” In other words, this Court applies the doctrine of noscitur a sociis, which “stands for the principle that a word or phrase is given meaning by its context of setting.”
The statute prohibits telecommunications providers from making “a statement or representation . . . that is false, misleading, or deceptive.” The context of the word “false” is the key to determining which of the multiple definitions of that term the Legislature intended, and the other related statutory terms— “misleading” and “deceptive” — provide that context. “Mislead” means “1. to lead or guide in the wrong direction. 2. to lead into error of conduct, thought, or judgment; lead astray,” and “deceive” means “to mislead by a false appearance or statement; trick.” Thus, both “mislead” and “deceive” require the perpetrator intentionally to trick or lead astray his or her victim. These definitions provide insight into which “related meaning” of “false” the Legislature intended. The definition of “false” that has a related meaning to the other descriptive statutory terms is the fourth definition cited by the Court of Appeals: “tending to deceive or mislead; deceptive.” Thus, a mere mistaken communication would be insufficient to make a “false” statement penalized under this statute. The fact that the SBC’s technician’s statement was simply “untrue” or that a bill mistakenly sent in reliance on the technician’s incorrect diagnosis constitute insufficient proof to establish falsity required by the statute.
Thus, we conclude that only statements that are intentionally false qualify as violations of the statute, and the Court of Appeals statutory construction determination and the PSC’s conclusion that a statutory violation occurred must be reversed.
III. THE PROPRIETY OF THE COURT OF APPEALS REMAND ORDER
In its first opinion, the Court of Appeals held that the remedy provision of the PSC’s February 25, 2002, order was ambiguous and remanded for clarification. The Court was unsure whether the PSC required SBC to enter each customer’s home to verify that the problem stemmed from wiring inside the customer’s home. On remand, the PSC ruled:
The Commission should clarify the discussion section of its February 25, 2002 order to indicate that SBC need not enter a customer’s premises every time that SBC is called upon to make a service trip, but that it may not impose charges to recover the cost of services it provides to inspect, diagnose, and repair malfunctions covered by its tariff obligation, including the cost of conducting routine physical checks of its own facilities, in response to complaints or inquiries, if those services are reasonably necessary to diagnose problems attributable to its own facilities or exclude those facilities as a possible cause of service disruptions.[ ]
In its second opinion, the Court of Appeals cited federal authority for the proposition that states were generally precluded from regulating services provided by telephone companies for “inside wiring.” However, states are free to regulate the telephone companies’ networks or “outside wiring.” On the basis of these principles, the panel took issue with the portion of the order directing “SBC not to impose charges for services that ‘exclude [SBC’s] facilities as a possible cause of service disruptions.’ ” The Court held that this sentence violated the federal regulations because “a correct determination by SBC excluding its facilities as the cause of service disruption inherently constitutes a correct determination that the disruption was caused by the customer’s inside wiring.” The panel remanded to the PSC to remove any regulation of “inside wiring,” including fees attributable to correct determinations that the problem originated with the customer’s inside wiring.
The parties agree that SBC cannot charge for services performed for “outside wires” and that the PSC cannot regulate services on “inside wiring.” The issue is whether the PSC’s August 1, 2005, order is a permissible regulation of “outside wires” or an impermissible regulation of “inside wires.” We agree with the Court of Appeals that, to the extent the order prohibits SBC from charging for services associated with a problem caused by inside wiring, it is improper. While SBC may have to inspect its outside wires to confirm that a problem is with the customer’s inside wiring, the fact remains that if the problem is with the inside wiring, then SBC had to make a service call for an inside wiring problem. The PSC cannot regulate that service and must amend its order to eliminate that improper regulation.
CONCLUSION
With today’s decision, we reaffirm the Boyer-Campbell standard of review, which provides a longstanding and clear standard for appellate courts to apply to an administrative agency’s interpretation of a statute. In accordance with separation of powers principles and this Court’s older cases, we hold that agency interpretations are entitled to respectful consideration, but they are not binding on courts and cannot conflict with the plain meaning of the statute. While the agency’s interpretation may be helpful in ascertaining the legislative intent, courts may not abdicate to administrative agencies the constitutional responsibility to construe statutes. Giving uncritical deference to an administrative agency would be such an improper abdication of duty.
Applying the proper standard to the statute at issue in this case, the PSC’s interpretation is erroneous, as was the panel’s undue deference to that construction. The Court of Appeals alternative interpretation (which it did not adopt) represents the proper interpretation of this statute. Under the appropriate interpretation of the statute, merely incorrect statements made with no intent to deceive are not subject to sanctions. Additionally, the PSC must modify its order to incorporate a correct construction of the statute and eliminate any regulation of inside wiring.
Taylor, C.J., and Corrigan and Markman, JJ, concurred with Young, J.
We will use “SBC” to refer to SBC Michigan and its predecessor, Ameritech Michigan.
MCL 484.2502(1)(a). That section provides:
(1) A provider of a telecommunication service shall not do any of the following:
(a) Make a statement or representation, including the omission of material information, regarding the rates, terms, or conditions of providing a telecommunication service that is false, misleading, or deceptive.
The statute was amended by 2005 PA 235, which added a second sentence to subsection (a). That sentence states, “As used in this subdivision, ‘material information’ includes, but is not limited to, all applicable fees, taxes, and charges that will be billed to the end-user, regardless of whether the fees, taxes, or charges are authorized by state or federal law.” The amendment is not at issue here.
The other aspects of the customers’ complaint are not before the Court.
The PSC imposed additional penalties for other violations; however, as noted, those violations are not at issue here.
Ameritech Michigan v Pub Service Comm, unpublished opinion per curiam of the Court of Appeals, issued June 17, 2004 (Docket No. 244742), at 2. The instant case has been decided under several different names, but the parties have not changed.
Id. at 3.
Ameritech Michigan v Pub Service Comm, 472 Mich 890 (2005).
Order of the PSC, August 1, 2005 (Case No. U-13079), p 4 (emphasis in original).
Id.
In re Complaint of Rovas Against Ameritech Michigan, 276 Mich App 55; 740 NW2d 523 (2007).
Id. at 60.
SBC Michigan v Pub Service Comm, 480 Mich 977 (2007).
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006).
Straus v Governor, 459 Mich 526, 535; 592 NW2d 53 (1999).
Const 1963, art 3, § 2.
Id.
Const 1963, art 4, § 1.
“It is the legislators who establish the statutory law because the legislative power is exclusively theirs.” Cameron v Auto Club Ins Ass’n, 476 Mich 55, 65; 718 NW2d 784 (2006).
Id. at 65-66.
While rulemaking has legislative qualities, the power must be exercised pursuant to valid enabling legislation that does not improperly delegate “legislative” authority. Taylor v Gate Pharmaceuticals, 468 Mich 1, 10 n 9; 658 NW2d 127 (2003).
5 US (1 Cranch) 137; 2 L Ed 60 (1803).
Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948) (citations omitted). See also Kelly v Secretary of State, 293 Mich 530, 533; 292 NW 479 (1940) (“[I]n the final analysis the construction of a statute still remains in the judicial branch of our government.”).
Const 1963, art 6, § 28.
Id. See also MCL 462.26(8).
Const 1963, art 6, § 28.
The constitutional convention that drafted our constitution explained the purpose of this provision in its “Address to the People”:
This is a new section recognizing the increased significance assumed by administrative law in the legal system of the state in recent years. It provides that decisions, findings, rulings and orders of administrative officers or agencies which affect private rights be subject to judicial review.
Excepted in the section are findings of fact in workmen’s compensation proceedings. These findings would be conclusive in the absence of fraud, unless otherwise provided by law. Also excepted are appeals of certain decision of agencies dealing with administration of property tax laws. [2 Official Record, Constitutional Convention 1961, p 3389.]
Gate Pharmaceuticals, supra at 10 n 9.
Id. at 5.
Dep’t of Natural Resources v Seaman, 396 Mich 299, 314; 240 NW2d 206 (1976).
Const 1963, art 6, § 28.
Viculin v Dep’t of Civil Service, 386 Mich 375, 392; 192 NW2d 449 (1971).
See, e.g., Kaiser v Allen, 480 Mich 31, 35; 746 NW2d 92 (2008); Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007); Coblentz v Novi, 475 Mich 558, 567; 719 NW2d 73 (2006); City of Taylor, supra at 115; and In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999).
See Champions Auto Ferry, Inc v Pub Service Comm, 231 Mich App 699, 707-708; 588 NW2d 153 (1998); In re MCI Telecom Complaint, supra at 427.
In re MCI Telecom. Complaint, supra at 424 n 4.
271 Mich 282; 260 NW 165 (1935).
Id. at 296-297 (citations and quotation marks omitted).
See Howard Pore, Inc v State Comm’r of Revenue, 322 Mich 49, 66; 33 NW2d 657 (1948); Gen Motors Corp v Erves, 395 Mich 604, 621; 236 NW2d 432 (1975) (Coleman, J.) (“It is the responsibility of the judiciary to interpret legislative intent and this responsibility cannot be delegated. We agree with the Court of Appeals that consideration should be afforded to the [agency] interpretation of this section. We cannot abdicate our ultimate responsibility.”); Id. at 639-640 (Williams, J.).
Justice Kelly cites this statement for the conclusion that this opinion does not accomplish anything other than assign a specific name to the standard of review. However, as discussed later in this opinion, some lower courts, such as the panel in this case, have relied on one of these varying standards to give nearly unfettered deference to an agency’s interpretation of a statute. The definitions cited by Justice Kelly show how such an error could occur. For instance, the first definition of “deference” is “respectful yielding to the opinion . . . of another ....” Post at 121 n 9 (emphasis added). “Yielding” provides much more weight to an agency’s interpretation than the “respectful consideration” to which such interpretations are entitled.
444 Mich 481, 497-498 and 498 n 23; 511 NW2d 661 (1994) (emphasis added).
Id. at 493-494, 496-497, and 503.
Id. at 503 (quotation marks omitted).
Id. at 505 (quotation marks and emphasis omitted).
458 Mich 326, 336; 582 NW2d 767 (1998).
380 Mich 513, 519; 158 NW2d 473 (1968).
470 Mich 13, 23-24; 678 NW2d 619 (2004) (quotation marks omitted).
This case does not concern a longstanding interpretation of a statute. Thus, this aspect of Catalina is not before the Court. We note that the Court’s reluctance to overrule longstanding agency interpretations may stem from the prudential concerns, such as reliance interests, discussed in Robinson v Detroit, 462 Mich 439, 463-468; 613 NW2d 307 (2000), with regard to the doctrine of stare decisis. However, we reserve decision on this issue until we are presented with a case that requires consideration of a longstanding agency interpretation in which reliance issues are at stake.
See also Czymbor’s Timber, Inc v Saginaw, 478 Mich 348, 356; 733 NW2d 1 (2007) (“[W]hile the DNR’s interpretation of the statute is given some measure of deference, its construction cannot conflict with the plain language of the statute ....”).
The order granting leave to appeal in this case is also an example of this confusion because we asked the parties to address “whether the commission abused its discretion in applying this statutory provision to a carrier’s diagnostic mistakes.” SBC Michigan v Pub Service Comm, 480 Mich 977 (emphasis added).
239 Mich App 686, 690; 609 NW2d 854 (2000) (emphasis added).
Chevron USA Inc v Natural Resources Defense Council, Inc, 467 US 837; 104 S Ct 2778; 81 L Ed 2d 694 (1984).
However, there are other standards that may apply in certain circumstances. See Skidmore v Swift & Co, 323 US 134; 65 S Ct 161; 89 L Ed 124 (1944), and Auer v Robbins, 519 US 452, 461-463; 117 S Ct 905; 137 L Ed 2d 79 (1997).
Chevron, supra at 842.
Id. at 842-843.
Id. at 843 n 9.
Id. at 843.
Id. at 843-844.
See United States v Morton, 467 US 822, 834; 104 S Ct 2769; 81 L Ed 2d 680 (1984) (“Congress authorized the promulgation of ‘regulations for the implementation of the provisions of section 659,’ 42 U.S.C. § 661(a).”); Schweiker v Gray Panthers, 453 US 34, 43; 101 S Ct 2633; 69 L Ed 2d 460 (1981) (“Congress conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the Act.”); and Batterton v Francis, 432 US 416, 425; 97 S Ct 2399; 53 L Ed 2d 448 (1977) (“Congress in § 407(a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes “unemployment” for purposes of [Aid to Families with Dependent Children-Unemployed Fathers] eligibility.”).
See Immigration & Naturalization Service v Jong Ha Wang, 450 US 139, 144; 101 S Ct 1027; 67 L Ed 2d 123 (1981) (“The crucial question in this case is what constitutes ‘extreme hardship.’ These words are not self-explanatory, and reasonable men could easily differ as to their construction.”), and Train v Natural Resources Defense Council, Inc, 421 US 60, 87; 95 S Ct 1470; 43 L Ed 2d 731 (1975) (“We therefore conclude that the Agency’s interpretation of §§ 110(a)(3) and 110(f) was ‘correct,’ to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the ‘correct’ one.”).
Chevron, supra at 844.
Id.
Id.
Andersen, Against Chevron — a modest proposal, 56 Admin L R 957, 960 (2004) (footnotes omitted) (“The confusions extend to very basic questions, such as when the doctrine applies, how to distinguish its two steps from each other, and how to distinguish the test from other commonly used tests of agency action.”).
However, this Court has approvingly cited Chevron in the past. See, e.g., Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 416; 565 NW2d 844 (1997).
Justice Kelly is correct that the PSC held that this was not a case of “simple misdiagnosis.” However, the PSC did not rule, as Justice Kelly would, that “[t]hese statements were made with at least a reckless disregard of their truth or falsity.” Post at 125.
SBC Michigan, supra at 2, quoting Random House Webster’s College Dictionary (1997), p 469.
Griffith v State Farm MutAuto Ins Co, 472 Mich 521, 533; 697 NW2d 895 (2005) (internal citations and quotation marks omitted).
Koontz v Ameritech Services, Inc, 466 Mich 304, 318; 645 NW2d 34 (2002) (citations and quotation marks omitted).
MCL 484.2502(1)(a).
Random House Webster’s College Dictionary (1997). “Misleading” simply means “tending to mislead; deceptive.” Id.
Id. The statutory word “deceptive” means “likely to deceive; capable of deception.” Id.
In its brief, the PSC suggests that § 2502(1)(a) is a strict liability provision. To support its position, the PSC points to MCL 484.2506(3), which provides for a “bona fide error” exception to MCL 484.2505 and 484.2507, and reasons that the lack of such an exception in § 2502(1)(a) means that the Legislature intended to punish mere mistakes under that section. MCL 484.2505(1) provides that “[a]n end user of a telecommunications provider shall not he switched to another provider without the authorization of the end user.” MCL 484.2507(1) provides that “[a] telecommunications provider shall not include or add optional services in an end-user’s telecommunications service package without the express oral or written authorization of the end-user.” The problem with the PSC’s analysis is that, as discussed above, the plain language of § 2502(1)(a) does not prohibit mere mistakes or “bona fide errors.” Therefore, it would be unnecessary for the Legislature to provide such an exception to § 2502(1)(a).
Order of the PSC, August 1, 2005 (Case No. U-13079), p 4 (emphasis in original).
In re Rovas Complaint, supra at 59, citing Detariffing the Installation & Maintenance of Inside Wiring, 51 Fed Reg 8,498, 8,499 (March 12, 1986), & In re Detariffing the Installation and Maintenance of Inside Wiring, 7 FCC Rec 1,334, 1,339 (November 21, 1991).
In re Rovas Complaint, supra at 60.
Id. | [
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CAVANAGH, J.
The Judicial Tenure Commission (JTC) recommended that this Court sanction respondent, 19th District Court Judge William C. Hultgren, with public censure and 60 days’ suspension without pay for judicial misconduct. After considering respondent’s actions, we conclude that they do not constitute judicial misconduct.
On July 10, 2007, the JTC filed Formal Complaint No. 82, alleging that respondent had committed judicial misconduct in violation of Const 1963, art 6, § 30; MCR 9.104 and MCR 9.205; and the Michigan Code of Judicial Conduct (MCJC), Canons 1,2A, and 2C. This Court appointed the Honorable Norma Dotson-Sales as the master to hear the case. The master’s report, issued on March 31, 2008, states the factual background:
1. Respondent is and has been a sitting 19th District Court Judge for approximately 15 years.
2. On October 13, 2006, a caller identified as Ali Beydoun, telephoned Respondent’s office and requested a 15 minute appointment.
3. On October 16, 2006, Respondent held a meeting in his court chambers, for approximately 15 minutes, with Ali (a/k/a Wally) Beydoun and two (2) other men: Hussein Dabaja and Frank Dabaja (Hussein’s cousin).
4. Prior to October 16, 2006, Respondent had a casual relationship with Wally Beydoun and did not know the Dabaja cousins.
5. During the October 16th meeting, it became apparent that Hussein Dabaja (“Hussein”) had difficulty with the English language and that Frank Dabaja (“Frank”) apparently attended the meeting to act as a translator for his cousin.
6. Hussein, through Frank, claimed that he was a victim of mistaken identify [sic] regarding a credit card debt that occurred before his entry into the USA. He presented Respondent with documentation to support his claim. Said documentation included a passport and social security card.
7. Respondent requested his secretary, Miss Hunt, to search the court computer system (i.e., Court Case Register of Actions) for any cases involving Hussein Dabaja. The court screen displayed a case titled: Asset Acceptance Cor poration v Hussein Dabaja (“Asset Acceptance”) which was assigned to 19th District Judge Mark W Somers and marked “Closed.”
8. The Court Case Register of Actions also indicated that Plaintiff in the pending matter was represented by [attorney] Thomas D. Hocking.
9. Respondent telephoned Atty. Hocking’s office, spoke with Ms. Danielle Groppi, Mr. Hocking’s litigation secretary, and caused a letter and the documents presented to him by Hussein Dabaja to be faxed to Atty. Hocking. The letter was written on Respondent’s official 19th District Court stationery.
10. Respondent had no further contact with the three men and no contact with the Asset Acceptance matter until he received two (2) memos, dated December 14, 2006 and January 2, 2007, from Judge Somers.
11. Respondent had no discussions with Judge Somers regarding the Hussein Dabaja matter until his receipt of the above two (2) memos from Judge Somers.
12. On January 3, 2007, Respondent sent a requested reply to Judge Somers.
13. Formal Complaint No. 82 was filed on July 10,2007.
The master’s report included the following findings of fact:
1. The relationship between the Respondent and Ali Beydoun, at best, was that of “acquaintances.”
2. On October 16, 2006, there was no social, business or other relationship between the Respondent and Hussein Dabaja and Frank Dabaja.
3. Respondent’[s] October 16, 2006, meeting with his constituents was not misconduct.
4. Respondent used poor judgment when he failed to terminate the October 16th meeting once he discovered that the subject matter was assigned to another judge.
5. The October 16th meeting was not an ex parte communication violation.
6. Respondent’s telephone call to Atty. Hocking’s office was not misconduct.
7. Respondent’s actions in writing the Oct. 16th letter were not that of an intervener. Rather, he acted as a conduit to prevent a miscarriage of justice.
8. Respondent’s use of the words “a lawyer in a credit card collection mill” was not misconduct.
The master also made the following conclusions of law:
1. The charges contained in Formal Complaint No. 82 were not proven by a preponderance of the evidence.
2. Respondent’s conduct in Formal Complaint No. 82 did not constitute [a] violation of the Michigan Constitution, 1963, as amended, Article 6, Section 30; MCR 9.104; MCR 9.205; or the Code of Judicial Conduct, Canons 1, 2A, 2C, or 3A.
After a public hearing, the JTC rejected the master’s conclusions of law. It concluded that the facts established at the hearing demonstrated that respondent had committed judicial misconduct under all counts of the complaint. It recommended that respondent be sanctioned by public censure and 60 days’ suspension without pay.
MCR 9.225 states, in part, that this Court “shall review the record of the proceedings and file a written opinion and judgment, which may accept or reject the recommendations of the commission . . ..” Having reviewed the record in this case, we reject the recommendation of the JTC and adopt the findings of fact and conclusions of law of the master. In our judgment, respondent has not committed judicial misconduct. We also agree with the master, however, that respondent’s actions under the circumstances reflected poor judgment. Respondent acknowledged this conclusion at the hearing before the master. Accordingly, we caution respondent to more carefully conform his actions to the rules and provisions that guide judicial conduct.
Weaver, Corrigan, and Markman, JJ., concurred with Cavanagh, J.
Const 1963, art 6, § 30, states in part:
(2) On recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for ... misconduct in office ... or conduct that is clearly prejudicial to the administration of justice.
MCR 9.104 states in part:
(A) The following acts or omissions by an attorney, individually or in concert with another person, are misconduct and grounds for discipline, whether or not occurring in the course of an attorney-client relationship:
(1) conduct prejudicial to the proper administration of justice;
(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;
(3) conduct that is contrary to justice, ethics, honesty, or good morals;
(4) conduct that violates the standards or rules of professional responsibility adopted by the Supreme Court[.]
MCR 9.205 states in part:
(B) Grounds for Action. A judge is subject to censure, suspension with or without pay, retirement, or removal for ... misconduct in office... or conduct that is clearly prejudicial to the administration of justice... .
(1) Misconduct in office includes, but is not limited to:
(e) misuse of judicial office for personal advantage or gain, or for the advantage or gain of another ....
(2) Conduct in violation of the Code of Judicial Conduct or the Rules of Professional Conduct may constitute a ground for action with regard to a judge, whether the conduct occurred before or after the respondent became a judge or was related to judicial office.
Canon 1 of the Code of Judicial Conduct states in part:
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary....
Canon 2 of the Code of Judicial Conduct states in part:
A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety....
C. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others....
Two members of the nine-memher JTC panel concurred with the majority’s findings of fact and conclusions of law, but dissented from the recommended sanction. They believed that respondent should be sanctioned by public censure and a one-year suspension without pay. | [
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CORRIGAN, J.
This case requires us to consider whether plaintiffs refusal to attend an employer-mandated event constituted “intentional and wilful misconduct” under MCL 418.305, thereby barring her recovery of benefits under the Worker’s Disability Compensation Act, MCL 418.101 et seq. The magistrate found that plaintiff willfully refused to attend the event, despite having been informed that the event was essential in promoting the employer’s goal of racial reconciliation. In light of that finding, we conclude that plaintiffs refusal to attend the mandatory event constituted intentional and willful misconduct, thereby barring workers’ compensation benefits under MCL 418.305. We thus reverse the judgment of the Court of Appeals.
I. FACTS AND PROCEDURAL HISTORY
Defendant Focus Hope, Inc., hired plaintiff as a full-time employee in January 2001. Defendant’s co-founder and chief executive officer, Eleanor Josaitis, told plaintiff that the mission of Focus Hope is to seek racial equality and reconciliation. Josaitis further explained that the most important function of the year is the Martin Luther King, Jr., birthday celebration, and that each employee was expected to attend the event. If the employee had a legitimate excuse for not attending, the employee was to inform the human resources department.
The King Day event was ordinarily held in Detroit, but in 2002, Josaitis decided to hold it in Dearborn. Plaintiff told her immediate supervisor, David Lepper, that she would not attend the event in Dearborn because she and her family had bad experiences there as African-Americans and because she believed the history of race relations in Dearborn was not in keeping with Dr. King’s aspirations. Lepper advised plaintiff that she would be docked one day’s pay for refusing to attend. Plaintiff did not tell Josaitis or the human resources department of her decision not to attend.
After the King Day event, Josaitis met with plaintiff, Lepper, and a human resources manager. Josaitis asked plaintiff why she had not attended the King Day celebration. Plaintiff explained that she believed the site of the event in Dearborn was not appropriate. Josaitis responded that plaintiff had been informed when she was hired that attendance at the King Day event was mandatory, and that the purpose of Focus Hope was to promote acceptance and tolerance. Josaitis advised plaintiff that she would be docked for two days’ pay. Subsequently, some of plaintiffs job responsibilities were taken away.
Plaintiff and Josaitis then exchanged memos explaining their respective positions. Josaitis wrote in her memo that plaintiffs failure to attend the Kang Day event had reduced her confidence in plaintiffs commitment to Focus Hope’s goals. Josaitis explained:
The purpose of the Civil Rights movement was to change the negative perception and prejudice of any individual towards another, based on race, gender, religion, color, or creed through the use of non-violent action. Father [William] Cunningham and I started Focus: HOPE based on this same philosophy that Dr. King gave his life for. Just as I stated to you in your orientation, I expect Every Focus: HOPE Colleague to abide by these same principles.
To harbor such feelings of the past without thinking how our MLK mandatory staff development day helps to move Focus: HOPE into the future, reduces my confidence in your commitment to help us fulfill our mission statement.
In her memo, plaintiff admitted that she understood that attendance at the King Day event was mandatory, but stated that she “felt offended by the celebration being in a city that I do not frequent and that I would be extremely uncomfortable celebrating Martin Luther King’s birthday [in].” She added, “I did not attend the celebration and expressed [in the meeting] that I spent it with my family and with no regrets accepting the day off with no pay!” Plaintiff then wrote, “I do not accept [Josaitis’s] judging and wrongfully degrading my character as a [sic] ‘untrustworthy person.’ ”
Plaintiff claims that a second meeting occurred in which Josaitis allegedly reiterated her disappointment in plaintiff, shook her finger in plaintiffs face, and said that plaintiff did not deserve to receive a paycheck from Focus Hope. When plaintiff asked if she was being fired, Josaitis shrugged her shoulders and let her out of the office. Josaitis testified that she remained calm and that she did not yell or threaten to fire her.
Plaintiff claimed that Josaitis’s alleged comments traumatized her. Plaintiff left work and never returned. Her psychologist opined that plaintiff suffered a major depression precipitated by work events and that she is unable to work. A defense psychiatrist found no evidence of a continuing mental disability and opined that plaintiff could return to work without restrictions.
The workers’ compensation magistrate credited the testimony of plaintiff and her psychologist. The magistrate found that plaintiffs mental disability arose from actual employment events and that plaintiffs perception of those events was reasonable. Although the magistrate found that plaintiff had willfully refused to attend the King Day event, and that her disability had resulted from that willful refusal, the magistrate none theless rejected the defense argument that plaintiffs misconduct barred her recovery of benefits under MCL 418.305. The magistrate stated that “[t]he kind of ‘misconduct’ plaintiff engaged in here is a far cry from the alleged misconduct [i.e., sexual harassment] alleged in Daniel [v Dep’t of Corrections, 468 Mich 34; 658 NW2d 144 (2003)], and for that reason I decline to follow” Daniel.
The Workers’ Compensation Appellate Commission (WCAC) affirmed. It chastised defendant as “insensitive” for failing to recognize that plaintiffs agreement to attend King Day celebrations would not require her to attend such events in Dearborn. Thus, the WCAC found “absolutely no merit to defendants’ claim that plaintiffs behavior should disqualify her for benefits pursuant to the doctrine set forth in” Daniel.
The Court of Appeals denied leave to appeal for lack of merit, but this Court remanded the case to the Court of Appeals for consideration as on leave granted, in light of Daniel. On remand, the Court of Appeals affirmed the WCAC decision. The Court of Appeals determined that sufficient evidence supported the finding that plaintiffs conduct was a “far cry” from the misconduct in Daniel. Citing Andrews v Gen Motors Corp, 98 Mich App 556; 298 NW2d 309 (1980), the Court of Appeals concluded that plaintiffs conduct fell within the realm “in which a claimant perhaps violates a workplace rule or expectation but is not precluded by § 305 from recovering benefits for a resulting injury.”
Defendants again applied for leave to appeal to this Court. We scheduled the case for oral argument on the application, directing the parties to address “whether plaintiffs injury resulted from her willful misconduct.”
II. STANDARD OF REVIEW
In the absence of fraud, this Court must consider the WCAC’s findings of fact conclusive if any competent evidence in the record supports them. MCL 418.861a(14); Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 698; 614 NW2d 607 (2000). We review de novo questions of law, including statutory interpretation. Karaczewski v Farbman Stein & Co, 478 Mich 28, 32; 732 NW2d 56 (2007); Daniel, supra at 40.
III. ANALYSIS
MCL 418.305 provides: “If the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act.” “This provision has remained essentially unchanged since it was first adopted by the Legislature in 1912 as part of the original workers’ compensation legislation. See 1912 (1st Ex Sess) PA 10, part 2, § 2.” Daniel, supra at 41. The question here is whether plaintiffs refusal to attend an employer-mandated event, a refusal that the magistrate specifically found to be “willful,” constitutes “intentional and wilful misconduct” that bars recovery of workers’ compensation benefits.
Our fundamental obligation when interpreting a statute is to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). An undefined statutory term must be accorded its plain and ordinary meaning. MCL 8.3a; People v Thompson, 477 Mich 146, 151; 730 NW2d 708 (2007). A lay dictionary may be consulted to define a common word or phrase that lacks a unique legal meaning. Id. at 151-152. A legal term of art, however, must be construed in accordance with its peculiar and appropriate legal meaning. MCL 8.3a; Mayberry v Gen Orthopedics, PC, 474 Mich 1, 7; 704 NW2d 69 (2005). In this case, we need not determine whether the statutory phrase “intentional and wilful misconduct” is a common phrase or a legal term of art because the terms in the phrase are similarly defined in both a lay dictionary and a legal dictionary.
“Intentional” is defined as “done with intention or on purpose.” Random House Webster’s College Dictionary (1991). “Willful” is defined as “deliberate, voluntary, or intentional.” Id. “Willful implies opposition to those whose wishes, suggestions, or commands ought to be respected or obeyed: a willfirl son who ignored his parents’ advice.” Id. “ ‘ “[W]illful” means action taken knowledgeably by one subject to the statutory provisions in disregard of the action’s legality. No showing of malicious intent is necessary. A conscious, intentional, deliberate, voluntary decision properly is described as willful, “regardless of venial motive.” ’ ” People v Hegedus, 432 Mich 598, 605 n 7; 443 NW2d 127 (1989) (citations omitted). “Misconduct” is defined as “improper behavior.” Random House Webster’s College Dictionary (1991). Therefore, conduct is “intentional and wilful misconduct” if it is “improper” and done “on purpose” despite the knowledge that it is against the rules.
Likewise, Black’s Law Dictionary (7th ed) defines “intentional” as “[d]one with the aim of carrying out the act,” and it defines “willful misconduct of em ployee” as “[t]he deliberate disregard by an employee of the employer’s interests, including its work rules and standards of conduct, justifying a denial of unemployment compensation if the employee is terminated for the misconduct.”
And, indeed, in the past, our Court has approached the definition of “willful misconduct” with this understanding. In Detwiler v Consumers Power Co, 252 Mich 79; 233 NW 350 (1930), this Court defined “willful misconduct” as an employee’s “obstinate or perverse opposition to the will of the employer.”
In Detwiler, the plaintiffs husband was killed in a freight elevator accident at work. Another employee had “cautioned” the decedent against using the elevator because it was dangerous, but the employer had no rule barring its use. This Court rejected the employer’s argument that the decedent’s use of the elevator constituted intentional and willful misconduct:
Assuming, but not deciding, that wilful misconduct might consist in wilful violation of a rule made for the employee’s own safety or the safety of others, the record shows no such rule. A rule, to be effective as such, must be prescribed by a power having authority to make rules and it must be enforced with diligence.
If it be conceded, for sake of argument, that the instruction or caution here was duly authorized, as contended by the employer, still it appears that it was not enforced, obedience was not required, and it is unavailing in respect of wilful misconduct. It was well said in Haffemayer v. United Keanograph Film Co., 1 Cal. Ind. Acc. Comm. Dec. (No. 24, 1915) 58, as reported in 8 N.C.C.A. 891:
“To disregard the instructions of an employer, where such instructions are given merely in the form of cautions, and where repeated violations of such instructions are known and permitted without penalty and without positive insistence upon obedience, does not constitute such obstinate or perverse opposition to the will of the employer as amounts to wilful misconduct. To hold otherwise would be to open the door for employers to impose numbers of safety rules upon their employees with a tacit understanding that such rules need not, so far as the employers were concerned, be regarded if the employees chose to do otherwise, but that if an employee was injured while disobeying any such instructions he should be deprived of compensation. An employer can not be allowed to impose two standards of care upon his employees, one for the ordinary conduct of his business and the other as a test of liability under the workmen’s compensation * * * act in case of accident.” [Id. at 81-82 (emphasis added).]
The Detwiler Court’s adoption of the “obstinate and perverse opposition to the will of the employer” definition is useful in according meaning to the entire statutory phrase “intentional and wilful misconduct.” Under this standard, § 305 bars an employee from recovering benefits for misconduct that is both (1) intentional, i.e., deliberate or nonaccidental, and (2) willful, i.e., obstinately or perversely opposed to the employer’s will. An employer’s work rule must be clearly established and consistently enforced in order for the employee to understand the mandatory nature of the rule and for its violation to constitute intentional and willftd misconduct. Detwiler, supra at 81-82.
The Detwiler analysis is consistent with our recent decision in Daniel. In Daniel, the Department of Corrections suspended the plaintiff, a probation officer, for sexually harassing female attorneys. After returning to work, the plaintiff suffered a mental disability because he felt harassed by his supervisor and the female attorneys. This Court concluded that the plaintiff was injured by reason of his intentional and willful misconduct. Daniel, supra at 44. Further, this Court rejected the Court of Appeals majority’s conclusion that the misconduct did not rise to a sufficient level of moral turpitude to be “ ‘intentional and wilful.’ ” Id. at 45.
Similarly, the facts found by the magistrate and the WCAC in this case establish that plaintiff’s refusal to attend the King Day event constituted intentional and willful misconduct. Attending this event was a mandatory requirement for Focus Hope employees. Josaitis personally interviews every prospective employee and impresses on them the necessity to attend the King Day event. The magistrate specifically found that plaintiffs refusal to attend the event was willful. Plaintiff did not challenge this finding, and the WCAC did not disturb it. This finding is supported by evidence in the record. Therefore, we must treat as conclusive the WCAC’s finding that plaintiffs refusal to attend was willful. Mudel, supra. Plaintiffs deliberate and categorical refusal to attend this mandatory function constituted insubordination.
In concluding that plaintiffs misconduct was not excluded by MCL 418.305, the Court of Appeals agreed with the WCAC that, unlike the sexual harassment in Daniel, plaintiffs conduct perhaps violated a workplace rule but was insufficiently serious to preclude benefits under § 305. The Court of Appeals cited Andrews, in which the Court of Appeals stated that misconduct must involve some unspecified degree of “moral turpitude” in order to bar recovery. The Andrews Court relied on Crilly v Ballou, 353 Mich 303, 327; 91 NW2d 493 (1958), in which this Court asserted in dictum that the statute excluded from coverage “acts of a degree of moral turpitude,” equating intentional and willful misconduct with acts of a “gross and reprehensible nature.”
The dictum in Crilly essentially engrafts a “moral turpitude” requirement onto § 305. The dictum is thus inconsistent with the plain statutory language, Detwiler, and Daniel. The text of § 305 does not create a sliding scale of “moral turpitude” that tribunals may assess in deciding whether to apply the statutory exclu sion. Rather, the statute simply excludes benefits where the injuries arose by reason of the employee’s intentional and willful misconduct. Moreover, this Court in Daniel rejected the Court of Appeals majority’s conclusion in that case that the misconduct did not rise to a level of moral turpitude that was intentional and willful. We held that the plaintiffs repeated acts of sexual harassment were voluntary and went beyond negligence or gross negligence.
The same analysis applies here. Plaintiff willfully refused to attend her employer’s most important function. She did so in the face of an express requirement that she attend, and did so even though the location of the event was an essential part of her employer’s overall mission. Plaintiffs refusal to follow her employer’s clearly expressed rule constituted an “obstinate or perverse opposition to the will of the employer.” She was disciplined for this misconduct. As in Daniel, it is undisputed that her mental disability flows directly from the employer-imposed discipline for misconduct.
W. RESPONSE TO THE DISSENT
The dissent contends that plaintiff was “selectively singled out for harsh punishment” because approximately 50-60 other employees allegedly refused to attend the event in Dearborn. But neither the magistrate nor the WCAC found that plaintiff was singled out for punishment, and the record does not support such a finding. Plaintiff presented no evidence other than her own vague, contradictory, and — by her own admission —speculative testimony to suggest that other employees refused to attend the event but were not punished.
Plaintiff initially testified that “50 to 60” of her colleagues “had adverse opinions about that particular site.” She later claimed that “there was like 80 people. [Eighty to ninety] people or something that didn’t attend. I forgot the people — the numbers, but there was more than myself — then I was called by Human Resources.” Still later, on cross-examination, plaintiff contended that she “was the only person out of 80” to be questioned about her failure to attend, then added, “I think there was two of us.” When asked how she knew this, plaintiff responded, “I guess it’s speculation.” Plaintiff did not present testimony from or even identify any of the other employees who allegedly refused to attend.
Even if plaintiff had shown that other employees did not attend the event, she offered no proof that any such employees failed to provide a legitimate excuse to the human resources department before the event, as defendant required, and that those employees then went unpunished despite their disobedience. Thus, the dissent’s assertion that plaintiff was “singled out for harsh punishment” is wholly unsupported in the record.
Next, the dissent contends that “the ‘harm’ that Ms. Brackett suffered was not caused by the initial response by her supervisor, but by the director’s harsh personal censure of Ms. Brackett.” Post at 288. This hyperbolic criticism of Ms. Josaitis has no basis in the record or in the findings of the magistrate and the WCAC. The lower tribunals simply did not find that Josaitis engaged in a “harsh personal censure.” It is most regrettable that our dissenting colleagues have chosen to lob these unfounded accusations.
Moreover, the dissent’s unfounded accusations do not reflect plaintiffs documented, ongoing insubordination in which she continued to oppose the mandatory attendance at the King Day event. In her memo to Josaitis following the initial meeting, plaintiff expressed no remorse. On the contrary, plaintiff continued to insist that she should not be required to attend the event in Dearborn because she “felt offended by the celebration being in a city that I do not frequent” and in which she “would be extremely uncomfortable celebrating Martin Luther King’s birthday.” Plaintiff admitted that she had “no regrets accepting the day off with no pay!” And referring to Josaitis, plaintiff stated, “I do not accept her judging and wrongfully degrading my character as a [sic] ‘untrustworthy person.’ ” The dissent’s excessive criticism of Josaitis thus appears quite shortsighted where plaintiff (1) violated Focus Hope’s rule by refusing to join the King Day celebration, (2) admitted her knowledge that attendance was mandatory, and (3) continued to express her lack of remorse for skipping the event.
And as the dissenting justices invent unfounded criticisms of the cofounder of Focus Hope, they fail to give effect to the magistrate’s findings that plaintiff “actually did willfully not attend the Defendant’s M L King Day Celebration” and that “[s]he actually did suffer disciplinary action on account thereof.” (Emphasis added.) The dissent’s effort to disconnect plaintiffs misconduct from her resulting disability is therefore unavailing and contrary to the magistrate’s own findings.
Next, the dissent endorses the Court of Appeals assertion that plaintiffs “pre-arranged nonattendance” was not misconduct. Post at 290. But Focus Hope required employees to provide a legitimate excuse to the human resources department, and it is undisputed that plaintiff did not inform the department of her absence before the event. Although plaintiff did inform Lepper, her immediate supervisor, of her decision not to attend, plaintiff knew that she was violating a rule because Lepper told her that she would be docked a day’s pay. The dissent does not explain how plaintiffs acceptance of a penalty for violating the rule excuses or negates her violation of the rule, nor does the dissent explain how the fact that plaintiff was ultimately docked for two days’ pay rather than one negates the existence of the rule. The rule existed and was violated regardless whether plaintiff was docked for one day or two days.
It is important to recall that plaintiff was not fired for her refusal to attend the King Day event. Rather, plaintiff claims that she remains indefinitely unable to work because of a major depressive episode arising from the events surrounding her punishment, including having her pay docked for two days instead of one. We note that the magistrate himself found plaintiffs alleged reaction to these events to be “excessive bordering on outlandish.”
The dissent accuses the majority of concluding that plaintiffs misconduct in this case was “equivalent” to the misconduct that occurred in Daniel. Post at 286, 289. But we have expressed no such view. A claimant’s misconduct does not have to be “equivalent” to the misconduct that occurred in Daniel in order to bar the plaintiff from recovering workers’ compensation benefits. Rather, under MCL 418.305, the plaintiff is barred from recovering benefits if the misconduct was “intentional and wilful.” The statute does not require equivalence to the misconduct in Daniel.
The dissent states that we have “nonsensically” concluded that an employee’s intentional and willful misconduct bars workers’ compensation benefits “regardless of whether the rule is controversial and whether it is properly and uniformly enforced.” Post at 291. As we have explained above, however, there is no evidence that Focus Hope did not properly or uniformly enforce its rule. Other than her own admitted speculation, plaintiff presented no evidence that other employees failed to attend the event, failed to inform the human resources department, and then went unpunished for their misconduct.
Moreover, MCL 418.305 contains no exception that would allow employees to intentionally and willfully violate employer rules that a workers’ compensation tribunal or appellate court later deems “controversial.” The dissent has invented this exception out of whole cloth. It is not clear on what authority the dissent would permit tribunals or courts to find that an employer’s rule is “controversial” and to then disregard the plain language of MCL 418.305 on the basis of that finding. Nor is it clear whether or how the dissent believes that a tribunal or court would possess the institutional capacity to decide on a principled basis what is or is not “controversial.” And even if the Legislature had adopted a “controversial” rule exception in MCL 418.305, the dissenting justices do not explain why they find it “controversial” to celebrate Dr. King’s birthday in a way that promotes Focus Hope’s goal of racial reconciliation.
Finally, the dissent fundamentally distorts the nature of Focus Hope’s rule by questioning whether “there was a well-established work rule to hold the event in Dearborn, as opposed to Detroit.” Post at 288. But plaintiff concedes that when she was hired, she was told by Josaitis that all employees were expected to attend the King Day celebration, and that this celebration was the most important event of the year for Focus Hope. Plaintiff accepted her position with full knowledge that she was required to attend the event. In 2002, Josaitis held the event in Dearborn to further Focus Hope’s goals of racial reconciliation and healing past wounds. During her testimony, Josaitis quoted the Focus Hope mission statement, which provides:
Recognizing the dignity and beauty of every person, we pledge intelligent and practical action to overcome racism, poverty and injustice. And to build a metropolitan community where all people may live in freedom, harmony, trust and affection. Black and white, yellow, brown and red from Detroit and its suburbs of every economic status, national origin and religious persuasion we join in this covenant.
Josaitis testified that “every single person that comes to Focus Hope, the first question that they’re asked is do you have any philosophical difference with that mission statement. That mission statement is on the back of all of our business cards, it hangs on every wall.”
Josaitis testified that the mission statement fit into the King Day celebration because “Martin Luther King was a man that was trying to build bridges.... So, on Dr. King day we always came together to talk about the history of civil rights and where we were going into the future.” She further explained that “every single person that comes to work for Focus Hope goes through a two-hour orientation with me and then they go through an orientation with the Human Resources Department and every single person is told that it is mandatory and why it is so important.” (Emphasis in original.) It is undisputed that plaintiff went through this orientation.
Focus Hope’s mission statement articulates goals and ideals that are not limited to the geographical boundaries of one city. Indeed, the mission statement expressly refers to “Detroit and its suburbs” and to the “metropolitan community.” (Emphasis added.) Plaintiff had full notice of the mission statement when she agreed to work for Focus Hope, and the 2002 celebration was held in Dearborn to advance those goals. Therefore, the dissent’s effort to confine Focus Hope’s celebration of Dr. King’s birth to a Detroit-only venue is wholly unconvincing.
V CONCLUSION
For these reasons, we hold that plaintiffs injury arose out of her intentional and willful misconduct in refusing to attend an employer-mandated event. We reaffirm the holding in Daniel and reject the insertion of a “moral turpitude” requirement into the text of MCL 418.305. Accordingly, the judgment of the Court of Appeals is reversed.
Taylor, C. J., and Young and Markman, JJ., concurred with Corrigan, J.
The magistrate reached this conclusion in spite of his “personal” view that “the reaction of Ms. Brackett to these events and her reasonable perceptions thereof (i.e., experiencing a major depressive episode causing disability for more than two years) is excessive bordering on outlandish.”
Unpublished order of the Court of Appeals, entered April 28, 2006 (Docket No. 266018).
477 Mich 922 (2006).
Unpublished opinion per curiam of the Court of Appeals, issued October 23, 2007 (Docket No. 274078).
Id. at 2.
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KELLY, J.
This case involves real property to which plaintiffs seek an easement for the purpose of connecting to a city sewer across the lots of their neighbors. The issues are (1) whether the Land Division Act (LDA) can be used to create substantive property rights, such as a utility easement, (2) whether an easement by necessity for utilities should be allowed in this case, and (3) whether the restrictive covenant that runs with the land in question bars the easement.
The Court of Appeals held that the LDA provides for substantive changes to property rights and gives the trial court the authority to revise the plat to allow a utility easement. It also concluded that an easement by necessity for utilities could appropriately be created in this case and that the restrictive covenant does not bar the easement.
We affirm the result of the Court of Appeals opinion and conclude that the original grantors intended to allow utility access to the Tomeceks’ property through the central drive easement. We agree that the restrictive covenant does not bar the easement. However, we reverse the Court of Appeals holding that the LDA can alter substantive property rights. Finally, it was unnecessary for the Court of Appeals to address whether an easement by necessity should be recognized in Michigan and applied in this case. Therefore, we affirm the Court of Appeals opinion in part, reverse it in part, and vacate it in part.
FACTS
Plaintiffs Frank and Janis Tomecek own property in the O. T. Henkle subdivision along Lake Michigan in Berrien County. They wish to build a house on their property (Lot 2). Defendants claim that a restrictive covenant that runs with the plat prevents plaintiffs from erecting a building on Lot 2. The covenant states that a house cannot be built on Lot 2 “unless and until a municipal sanitary sewer line is made available to the premises.”
Because Lot 2 is landlocked, plaintiffs have an easement (the central easement) over Lots 1 and 3 through which they access their property from Lake Shore Road. Plaintiffs claim that they are entitled to use the central easement to gain access to the municipal sewer line.
A familiarity with the history of the O. T. Henkle subdivision is helpful in understanding this case. In the early 1920s, O. T. Henkle acquired approximately five acres of land on Lake Michigan in Chikaming Township, Berrien County. The property passed from O. T. Henkle to C. W Henkle, Gladys Farclough, and Jane H. Henkle (collectively referred to as “the original grantors”). In 1967, the original grantors conveyed what is now Lot 1 to one of the defendants, reserving an easement for the benefit of Lot 2. The easement runs from Lake Shore Road along the southern boundary of Lot 1.
Over the next few years, the original grantors sold Lots 3, 4, and 5, all subject to an easement running along the southern portion of the property (“the south drive easement”). Lots 3 and 4 were also subject to the central drive easement. In 1975, the plat was recorded in the county records. At the time of platting, Lots 3, 4, and 5 used the south drive easement for utilities access and for right-of-way access. Also, in 1975, the original grantors recorded a restrictive covenant prohibiting the construction of a building on Lot 2 until a municipal sanitary sewer service was made available to the pre mises. Thus, when the property was platted in 1975, both the central and south easements were identically identified as “drive easement” on the plat, and the south easement already had utilities on it.
In 1976, the original grantors conveyed Lot 2 to plaintiffs. When plaintiffs bought Lot 2, the original grantors provided them with a drawing showing a good spot to build a home on the lot.
PROCEDURAL HISTORY
In 2001, plaintiffs requested a variance from the Chikaming Township Zoning Board of Appeals to construct a home on their lot. When the board granted the variance, defendants appealed, claiming that the restrictive covenant prevented plaintiffs from building a home because they did not have sewer access. The trial court granted summary disposition to plaintiffs, ruling that the original grantors intended to allow plaintiffs to build a home on Lot 2. The trial court observed that defendants had already run utility lines on the south easement, and plaintiffs deserved to do the same with their central easement.
A divided Court of Appeals panel affirmed the trial court’s decision in a published opinion. It held that the LDA empowered the trial court to revise the plat to include utilities in the central easement. The LDA, it concluded, permits a trial court to do more than merely correct errors; it may alter a plat to affect underlying substantive property rights. The Court of Appeals held, in addition, that plaintiffs were entitled to an easement by necessity for utilities.
STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. The extent of a party’s rights under an easement is a question of fact, and a trial court’s determination of the facts is reviewed for clear error. The proper interpretation and application of a statute presents a question of law that we consider de novo.
THE CENTRAL EASEMENT INCLUDED UTILITY ACCESS AT THE TIME OF PLATTING
We must determine if the central easement running from Lake Shore Road to Lot 2 includes utility access, or if its use is strictly limited to ingress and egress. Under well-established Michigan law, “[t]he use of an easement must be confined strictly to the purposes for which it was granted or reserved.” Exacting “magic words” are not required on a plat to create an easement. When interpreting deeds and plats, Michigan courts seek to effectuate the intent of those who created them.
Plaintiffs assert that, when the original grantors platted the subdivision, they assumed that both the south easement and the central easement included access for utilities. Defendants assert the contrary and add that Lot 2 was always intended to remain vacant.
It is undisputed that the central and south easements are identically labeled “drive easement” on the plat. At the time of platting, the central easement was used only for ingress and egress to Lot 2; there were no utilities on the easement. However, the south easement was used both as a driveway and for telephone and electrical lines to Lots 3, 4, and 5.
We find a strong inference that the words “drive easement” on the central easement were intended to have the same meaning as “drive easement” on the south easement. We conclude that the original grantors would have labeled the easements differently had they intended to allow utilities on the south easement, but not on the central easement. And we conclude that the original grantors intended the central and south easements to have the same scope: both road access for ingress and egress and utility access.
As early as 1883, Michigan courts recognized that a party using a right-of-way for a particular purpose cannot prevent a subsequent party from making the same use of the property. In Bell v Todd, the plaintiffs sought to enjoin the defendant from blocking access to a road that was platted but never constructed. Plaintiff Bell had previously blocked unbuilt roads in the same plat. The Court dismissed the case, stating:
[I]t also appears that Railroad street south of South street is enclosed and occupied by Bell himself, so that he is doing in his own individual interest in respect to this very street precisely what he seeks to enjoin defendant from doing. It would be preposterous to grant the relief prayed for on his application under such circumstances.[ ]
Although two streets, not one, are involved here, we believe Bell is instructive. Defendants use their “drive easement” for utilities and seek to prevent plaintiffs from using their “drive easement” for the same purpose. In the words of Justice COOLEY in Bell, to allow such a result would be “preposterous.”
It is apparent, also, that the grantors envisioned that a house would be built on Lot 2 and, by extension, that the central easement would include utilities. This may be gleaned from two drawings by C. W Henkel, one of the original grantors. The first was made in 1969, six years before the subdivision was platted. It shows Lot 2 and the adjacent lot to the east, Lot 1. On Lot 2 is a rectangle with the words “possible house location and dimensions.” The central easement is shown on the drawing.
C. W Henkle made a second drawing in 1978, three years after the subdivision and easements were platted. Like his first drawing, it shows a location on Lot 2 where plaintiffs could build a home. The central easement is visible on the drawing. It is significant that C. W. Henkle included the central easement in his drawings of Lot 2 with a house. He knew then that no house could be erected there until the lot had access to a sewer line. He knew, also, that the central easement was the only likely route to provide that access. Taken together, these drawings provide further evidence of intent that the central drive easement should include utilities.
Finally, contrary to the defendants’ claim, the wording of the restrictive covenant shows that the original grantors always intended that a house could be built on Lot 2: When attempting to discern the parties’ intent, we construe together contemporaneous documents relating to the same transaction. The restrictive covenant on Lot 2 was executed contemporaneously with the plat; therefore, it is relevant in discerning the parties’ intent at the time.
It does not make sense that the original grantors would have inserted language regarding a sewer in the restrictive covenant had they intended that no building ever be placed on Lot 2. If they had really intended to forever prevent building on Lot'2, they would have simply covenanted that no building ever be put there. The reference to a sewer makes sense, however, if the grantors’ intent was to eventually allow a building on Lot 2. This becomes readily apparent when the geographical limitations of the plat are considered. The plat is approximately five acres in size. Only the eastern half is suitable for housing because a bluff runs along the middle of the property, descending to the beach and Lake Michigan. Therefore, the five lots suitable for residences adjoin each other on roughly the 2.5 easternmost acres of land.
In 1975, when the subdivision was platted and the restrictive covenant was written,- none of the lots had access to a municipal sewer system. Septic tanks were the only plausible alternative for waste management on the lots. However, because of concerns over numerous septic systems and leach fields in the relatively small area, a septic system was not an option for every lot.
Cognizant of this problem, the original grantors likely enacted the restrictive covenant to prevent construction of a house on Lot 2 until municipal sewer service became available to it. Hence, the restrictive covenant prevented overloading the small area of land with septic waste. When a municipal sewer system became available to the plat in the late 1970s, the condition in the restrictive covenant was satisfied. The restrictive covenant had served its purpose.
From this we conclude that it was the intent of the original grantors that a house could be built on Lot 2 when a municipal sewer became available. We conclude also that the central “drive easement” was intended, like the south “drive easement,” to provide access to the sewer and other utilities.
EFFECT OF THE RESTRICTIVE COVENANT
Defendants maintain that the restrictive covenant of 1974 intended to prohibit any building on the property until the end of time. They argue that the plain language of the restrictive covenant reflects this.
The restrictive covenant states, “It is hereby covenanted and agreed that no building, structure or dwelling shall be constructed on Lot 2 of said plat unless and until a municipal sewer line is made available to the premises.” Defendants claim that the covenant prohibits building a home on Lot 2 until the owners of Lots 1, 3, and 4, explicitly grant permission to create an easement for municipal sewer service.
This interpretation is not reflected in the words of the covenant. As the trial court pointed out:
A plain reading of this restriction contradicts Defendant’s [sic] argument: if the grantors wanted to forever preclude any construction on Lot 2, the restriction would have stated as much in explicit language by ending the provision after the word “plat” [so that it read “[t]hat it is hereby covenanted and agreed that no building, structure or dwelling shall be constructed on Lot 2 of said plat”]. Defendants’ argument in this regard must therefore fail.
The restrictive covenant merely prevented construction on Lot 2 until sewer service became available to that lot.
THE LDA CANNOT ALTER SUBSTANTIVE PROPERTY RIGHTS
The LDA provides a process for surveying and marking subdivided property. Property information is compiled on a plat that is then recorded with the local municipality. The LDA allows a circuit court to vacate, correct, or revise a recorded plat. Defendants argue that the LDA permits a court to alter a plat map only to properly reflect existing property rights; it cannot affect the substantive rights of the underlying property owners.
When construing the LDA, we are mindful that our primary goal is to ascertain and give effect to the Legislature’s intent. When determining intent, we consider first the language of a statute. The LDA allows a court to “order a recorded plat or any part of it to be vacated, corrected, or revised. . . ,” “Plat” is defined in the act as “a map or chart of a subdivision of land.”
The LDA defines a plat as a map. A plat is a description of the physical property interests on a particular area of land. A map, by itself, is not a determination of substantive property interests. If one “revises” a map of the United States to show Michigan encompassing half of the country, it does not make it so. The LDA was never intended to enable a court to establish an otherwise nonexistent property right. Rather, the act allows a court to alter a plat to reflect property rights already in existence.
In this case, the LDA did not create new substantive property rights when the circuit court altered the plat to reflect that the central easement encompasses utility access. This right existed with respect to the central easement since its inception, when the original grantors recorded the central easement intending it to include utilities. The trial court merely used the LDA as the tool to validate property rights that already existed.
CONCLUSION
In 1975, when the O. T. Henkle subdivision was platted, it was the intent of the grantors that the central easement could include utilities. This holding is supported by the fact that, on the plat, the central ease ment and the south easement are both labeled the same. It is undisputed that the south easement was a driveway and had utilities at the time of platting. The language of the restrictive covenant that runs with the plat supports this holding. The covenant prevented a house from being built on Lot 2 until a municipal sewer system could be made available to the lot. Hence, once a sewer line became available, the covenant allowed a house to be built on Lot 2. Therefore, we affirm the Court of Appeals judgment. However, we reverse its holding concerning the LDA. The LDA cannot be used to create substantive property rights. Regarding the Court of Appeals dicta creating an easement by necessity for utilities, we decline to address whether such an easement is available in Michigan, it being unnecessary to resolve the case. The result reached by the Court of Appeals is affirmed on the basis of the intent of the grantors.
Taylor, C.J., concurred with Kelly, J.
MCL 560.101 et seq.
Plaintiffs’ property is shown as “2” on the map at the end of this opinion.
The easement is shown on the lower center of the diagram appended to this opinion and runs from Lake Shore Road to Lot 2.
Jane Henkle is the mother of plaintiff Janis Tomecek.
The easement is located on the central easement on the map, where the word “Drive” is printed.
The easement is labeled “Drive Easement” and shown on the left side of the map.
The left half of the central easement, where the word “Easement” appears on the map.
The south easement provided Lots 3, 4, and 5 with telephone and electrical access.
Plaintiffs and defendants disagree about the meaning of “premises” in the restrictive covenant. Plaintiffs contend “premises” refers to the subdivision as a whole, whereas defendants claim it refers exclusively to Lot 2.
In 1969, before plaintiffs acquired the property, the original grantors gave them another drawing showing a desirable location for a home on Lot 2.
Tomecek v Bavas, 276 Mich App 252; 740 NW2d 323 (2007).
The LDA allows a trial court to vacate, correct, or revise a plat. MCL 560.226(1).
Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d 364 (2005).
Id.
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957).
See Chapdelaine v Sochocki, 247 Mich App 167, 170; 635 NW2d 339 (2001).
See Curran v Maple Island Resort Ass’n, 308 Mich 672, 679-681; 14 NW2d 655 (1944).
Bell v Todd, 51 Mich 21; 16 NW 304 (1883).
Id. at 28.
Interstate Constr Co v United States Fidelity & Guaranty Co, 207 Mich 265, 274; 174 NW 173 (1919).
A septic tank is a small-scale sewage treatment system common in rural areas where there is no access to a municipal sewer line. Wastewater enters the septic tank from a connected residence, and solids settle to the bottom. The remaining water flows out of the tank and is absorbed into the soil, which usually filters out the remaining impurities in the water. However, there must be adequate soil area to handle the waste- water coming from the tank or the surrounding area will be damaged. This is especially likely when septic tanks are located on properly near a body of water (like the property in this case that borders Lake Michigan), because the sandy soil can easily become saturated with chemicals. This pollutes the surrounding area and surface water, causing serious harm to fish, plants, and other wildlife. See Craig G. Cogger, Septic System Waste Treatment in Soil <http://cru.cahe.wsu.edu/CEPublications/ebl475/ebl475.html> (accessed December 12, 2008); see also Septic Systems for Waste Water Disposal, available at <http://www.agwt.org/info/septicsystems.htm> (accessed December 12, 2008).
A leach field is the area of land where the wastewater from a septic tank is deposited.
MCL 560.221.
Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004).
Yaldo v North Pointe Ins Co, 457 Mich 341, 346; 578 NW2d 274 (1998).
MCL 560.226(1).
MCL 560.102(a). | [
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YOUNG, J.
This Court must determine whether the Michigan Catastrophic Claims Association (MCCA) has authority to refuse to indemnify member insurers for unreasonable charges. In these consolidated appeals, the MCCA refused to indemnify its member insurers, United States Fidelity Insurance & Guaranty Company (USF&G) and Hartford Insurance Company of the Midwest (Hartford) (together, plaintiffs), for personal protection insurance (PIP) benefits in excess of $250,000. The MCCA claimed that the hourly rates for attendant care services agreed to by plaintiffs were unreasonable and that it was not required to reimburse member insurers for unreasonable payments. Plaintiffs argued that the MCCA lacked authority to refuse to indemnify their claims on the grounds that the charges they paid were unreasonable. We hold that when a member insurer’s policy only provides coverage for “reasonable charges,” the MCCA has authority to refuse to indemnify unreasonable charges. Accordingly, we reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
A. USF&G v MCCA, DOCKET NO. 133466
USF&G provided no-fault insurance coverage for Daniel Migdal, who was injured in a motor vehicle accident on August 22, 1981. Since his injury, Daniel has required 24-hour attendant care services.
In 1988, Daniel’s father, Michael Migdal, individually and as conservator of Daniel’s estate, filed a first party no-fault action against USF&G, seeking to recover attendant care benefits. In 1990, the parties entered into a consent judgment that provided that USF&G would pay $17.50 an hour for attendant care services with an adjustment for inflation of 8.5 percent compounded annually.
The increased payments occasioned by this consent judgment have, in turn, driven this litigation. As of 2003, when this suit was filed, USF&G was paying $54.84 an hour to Medical Management, a company started by Mr. Migdal to provide his son’s care. Medical Management paid the nurses who actually provided Daniel’s care between $21.00 and $25.00 an hour plus benefits, which raised the average hourly nursing care cost to $32 an hour. As a result, the consent judgment created a profit center for Mr. Migdal. Medical Management kept the remainder of the hourly rate paid by USF&G and recovered approximately $200,000 in profits for 2003 for its operation.
The pay rate has continued to increase and, after Daniel’s benefits exceeded the $250,000 MCCA statutory threshold, USF&G sought indemnification from the MCCA under MCL 500.3104. The MCCA, however, refused to reimburse USF&G beyond $22.05 an hour, a rate that it considered reasonable.
B. HARTFORD v MCCA, DOCKET NO. 133468
Hartford provided no-fault insurance coverage for Robert Allen, who was injured in a motor vehicle accident on November 6, 2001. Allen was prescribed 24-hour attendant care services. Hartford initially paid for those services at the rate of $20 an hour.
In 2003, Allen retained an attorney and demanded that Hartford pay $37 an hour for attendant care services. The parties entered into a settlement agreement that provided that Hartford would pay $30 an hour for three years (May 6, 2003, to May 6, 2006).
Hartford sought indemnification from the MCCA under MCL 500.3104 because its payments to Allen exceeded the $250,000 threshold. The MCCA contested the reasonableness of the hourly rate and refused to reimburse Hartford beyond a rate of $20 an hour.
II. PROCEDURAL HISTORY
USF&G and Hartford each filed a complaint for a declaratory judgment against the MCCA. Each plaintiff requested that the circuit court order the MCCA to reimburse the full rate of the attendant care services each insurer was paying its insured.
The parties filed motions for summary disposition under MCR 2.116(C)(9) and (10), disputing whether the MCCA could refuse to reimburse payments that it deemed unreasonable. The circuit courts entered conflicting judgments. In USF&G’s case, the court entered summary disposition in USF&G’s favor. The court held that MCL 500.3104 does not include a reasonableness requirement and the court could not add one; thus, USF&G was entitled to summary disposition because the MCCA’s argument lacked merit. In Hartford’s case, the court denied Hartford’s motion for summary disposition. The court held that the MCCA could refuse to reimburse unreasonable charges and that whether the charges in that case were reasonable was a question of fact.
The MCCA appealed the grant of summary disposition in USF&G’s favor, and Hartford appealed the denial of its motion. The Court of Appeals consolidated the appeals and held that “the MCCA is statutorily required to reimburse an insurer for 100 percent of the amount that the insurer paid in PIP benefits to an insured in excess of the statutory threshold listed in MCL 500.3104(2), regardless of the reasonableness of these payments.” The Court of Appeals majority explained that “[although MCL 500.3105 and MCL 500.3107 indicate that an insurer is only required to reimburse an insured for reasonable charges, MCL 500.3104 does not include a reasonableness requirement.” Thus, the majority concluded that “MCL 500.3104 requires the MCCA to reimburse the insurer for the full amount (above the statutory threshold) of PIP benefits that the insurer is bound to pay to its insured, regardless of the circumstances under which that amount was determined, whether by agreement, judgment, binding arbitration, or otherwise, or the reasonableness of that amount.” Accordingly, the Court of Appeals affirmed the grant of summary disposition in USF&G’s favor, and reversed the denial of Hartford’s motion.
This Court granted the MCCA’s applications for leave to appeal in both cases and asked the parties to address “whether MCL 500.3104(2) obligates the [MCCA] to reimburse member insurers’ reimbursement claims without regard to the reasonableness of the member’s payments to PIP claimants.”
III. STANDARD OF REVIEW
This Court reviews decisions to grant or deny summary disposition de novo. Addressing the issues presented in this case requires that this Court interpret MCL 500.3104. Issues of statutory interpretation are questions of law that this Court reviews de novo.
“When interpreting a statute, our primary obligation is to ascertain and effectuate the intent of the Legislature. To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language.” “In interpreting the statute at issue, we consider both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ As far as possible, effect should be given to every phrase, clause, and word in a statute.”
IV ANALYSIS
The parties dispute whether the MCCA may review the reasonableness of charges for attendant care services and refuse to indemnify a member insurer when it deems those charges unreasonable.
A. WHETHER THE MCCA HAS AUTHORITY TO REVIEW AND REJECT MEMBER CLAIMS
The narrower threshold issue is whether the Legislature intended to permit the MCCA to conduct any review of claims submitted by member insurers. As stated, the language of the statute is the starting point to determine legislative intent. MCL 500.3104 does not expressly authorize the MCCA to review claims submitted by member insurers. MCL 500.3104(8)(g), however, does provide a broad grant of authority to the MCCA:
(8) In addition to other powers granted to it by this section, the association may do all of the following:
(g) Perform other acts not specifically enumerated in this section that are necessary or proper to accomplish the purposes of the association and that are not inconsistent with this section or the plan of operation.
Accordingly, the MCCA may perform any act “necessary or proper to accomplish” its purpose that is not inconsistent with § 3104 or its plan of operation.
This Court has explained the MCCA’s purpose:
It was created by the Legislature in 1978 in response to concerns that Michigan’s no-fault law provision for unlimited personal injury protection benefits placed too great a burden on insurers, particularly small insurers, in the event of “catastrophic” injury claims. Its primary purpose is to indemnify member insurers for losses sustained as a result of the payment of personal protection insurance benefits beyond the “catastrophic” level, which has been set at $250,000 for a single claimant. * * * In practice, the [MCCA] acts as a kind of “reinsurer” for its member insurers.[ ]
Not every member insurer claim is entitled to indemnification under § 3104(2). Section 3104(2) obligates the MCCA to indemnify member insurers as follows:
The [MCCA] shall provide and each member shall accept indemnification for 100% of the amount of ultimate loss sustained under personal protection insurance coverages in excess of [$250,000].[ ]
“Ultimate loss” is defined as “the actual loss amounts that a member is obligated to pay and that are paid or payable by the member, and do not include claim expenses.” Therefore, incorporating that definition, the statute provides that “[The MCCA] shall provide and each member shall accept indemnification for 100% of the amount of [the actual loss amounts that a member is obligated to pay and that are paid or payable by the member] sustained under personal protection insurance coverages in excess of [$250,000].”
Each claim must meet the requirements of § 3104(2). First, the claim sought to be indemnified must be for the “ultimate loss,” i.e., “the actual loss amounts that a member is obligated to pay and that are paid or payable by the member.” Second, the claim must be “sustained under personal protection insurance coverages.” And third, the loss must be in excess of the statutory threshold. The MCCA’s obligation to indemnify “100%” of the loss is not triggered unless the member insurer’s claim meets all three requirements.
The Legislature has made policy judgments in setting out these requirements. It has determined that only certain, limited claims are “catastrophic” and require “reinsurance” to alleviate the burden placed on insurers providing no-fault coverage. Thus, it is “necessary or proper to accomplish the [MCCA’s] purposes” and “not inconsistent with [§ 3104]” for the MCCA to review member insurer claims to ensure that they meet the requirements of § 3104(2).
Review of member insurer claims is also consistent with the MCCA’s plan of operation, which, since its original plan of operation in 1978, has provided: “The Association shall, upon verification of the propriety and amount of the payments made and the member’s entitlement to reimbursement therefor, reimburse the member the amount due it.” (Emphasis added.)
Moreover, in In re Certified Question (Preferred Risk Mut Ins Co v Michigan Catastrophic Claims Ass’n), this Court implicitly answered in the affirmative whether review of member claims is permitted. There, the plaintiff, Preferred Risk, was a member insurer that insured an Illinois resident under a policy written in Illinois. The insured was catastrophically injured in an automobile accident in Michigan. The plaintiff sought indemnification for its losses in excess of the $250,000 statutory threshold. The MCCA denied the plaintiffs application for indemnification on the basis that the insured was not a “resident.” This Court held that the indemnification requirement of § 3104(2) only applied to “a policy which was written in this state to provide the security required by § 3101(1) of the no-fault act. . . .” Thus, this Court implicitly held that the MCCA could review claims to determine whether the member insurer is entitled to indemnification because the Court endorsed the MCCA reviewing the residency of the insured.
In addition, In re Certified Question supports the proposition that the MCCA may refuse to indemnify claims that do not meet the requirements of § 3104(2). Concomitant with the absence of an obligation to indemnify is the authority to act accordingly and reject claims that do not meet the requirements of § 3104(2). Indeed, such authority to reject is “necessary or proper to accomplish” the MCCA’s purpose and not inconsis tent with either § 3104 or the MCCA’s plan of operation.
Accordingly, we hold that MCL 500.3104(8)(g) permits the MCCA to review claims submitted by member insurers and reject those that do not meet the requirements of § 3104(2). That leads to the dispositive issue whether that authority permits the MCCA to review the reasonableness of charges for attendant care services and refuse to indemnify a member insurer when it deems those charges unreasonable.
B. WHETHER THE MCCA MAY REVIEW THE REASONABLENESS OF ATTENDANT CARE CHARGES AND REFUSE TO INDEMNIFY UNREASONABLE CHARGES
Plaintiffs argue that § 3104(2) does not contain a “reasonableness” requirement and, instead, focus on the fact that they suffered an “actual loss” due to an “obligation.” Plaintiffs also emphasize the term “100%” in § 3104(2) and argue that if the MCCA indemnifies less than the full amount of their claim, it is not meeting its statutory obligation.
Indeed, § 3104(2) does not contain the word “reasonable” or any variation thereof, and plaintiffs have paid their insureds subject to their obligations under a consent judgment and settlement agreement, respectively. Plaintiffs’ arguments, however, ignore the second requirement of § 3104(2) — that the claim must be “sustained under personal protection insurance coverages.”
In In re Certified Question, this Court held that
the reference to “personal protection insurance coverages” under which the [MCCA] may be liable for indemnification in the event of a catastrophic loss ... is a shorthand reference to the no-fault personal protection insurance coverages that are generally the subject of the act, i.e., those which were written in this state to provide the compulsory security requirements of § 3101(1) of the no-fault act for the “owner or registrant of a motor vehicle required to be registered in this state” ....[ ]
Policies written in this state to provide the compulsory security requirements of § 3101(1) must comply with the provisions of the no-fault act. MCL 500.3105(1) obligates a member insurer to pay PIP benefits. MCL 500.3107(l)(a) defines PIP benefits, in relevant part, as “[allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” Thus, a no- fault policy written in this state must, at a minimum, provide PIP benefits that include “reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” It follows that the losses “sustained under personal protection insurance coverages” will minimally include “reasonable charges.” Insurers are free to provide broader coverage and greater benefits than § 3107 provides. Indeed, insurers may provide expanded coverage for actual or even unreasonable charges. Thus, the member insurer’s policy will ultimately control the standard for the MCCA’s review because the policy establishes the “personal protection insurance coverages.”
Whether the subject charges fall within the terms of the individual policies that covered Daniel Migdal and Robert Allen is not before this Court. The parties have not litigated that issue and we are without the facts necessary to resolve it. The issue before this Court is whether the requirement that member insurer claims be “sustained under personal protection insurance coverages” entitles the MCCA to refuse to indemnify unreasonable charges. We hold that when a member insurer’s policy provides coverage only for “reasonable charges,” the MCCA has authority to refuse to indemnify unreasonable charges. If the policy provides broader coverage, the MCCA must review for compliance with the broader coverage and indemnify claims within that coverage, but it may reject claims in excess of that coverage. Claims in excess of the member insurer’s PIP coverages are not “sustained under personal protection insurance coverages.” Thus, those claims do not meet the three statutory requirements of § 3104(2) and they do not trigger the MCCA’s obligation to indemnify “100%” of the claimed loss. Rather, the MCCA is only obligated to indemnify “100%” of the portion of the claimed loss that meets all three requirements of § 3104(2). Accordingly, we remand these cases to the trial court to determine the PIP coverages provided by the individual policies at issue in these cases and, if appropriate, whether the attendant care charges were reasonable.
V CONCLUSION
All member insurer claims must meet certain requirements of § 3104(2) to be entitled to indemnification from the MCCA. The MCCA may review those claims for compliance with § 3104(2) because such review is “necessary or proper to accomplish” the MCCA’s purpose and is not inconsistent with § 3104 or the MCCA’s plan of operation. The MCCA may additionally reject claims that do not meet the requirements of § 3104(2). One such requirement is that the claimed loss must be “sustained under personal protection insurance coverages.” A loss “sustained under personal protection insurance coverages” is one sustained under a policy providing “the compulsory security requirements of § 3101(1)... .” Under § 3107(l)(a), such policies minimally include “reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, re covery, or rehabilitation.” When a member insurer’s policy provides coverage consistent with MCL 500.3107(l)(a), the MCCA has authority to refuse to indemnify unreasonable charges. If the policy provides broader coverage, the MCCA may refuse to indemnify only charges in excess of that broader coverage.
We reverse the judgment of the Court of Appeals and remand these cases to the circuit court for proceedings consistent with this opinion.
Taylor, C.J., and Corrigan and Markman, JJ., concurred with Young, J.
“What are commonly called ‘PIP benefits’ are actually personal protection insurance (PPI) benefits by statute. However, lawyers and others call these benefits PIP benefits to distinguish them from property protection insurance benefits.” Roberts v Farmers Ins Exch, 275 Mich App 58, 66-67 n 4; 737 NW2d 332 (2007) (citation omitted).
See MCL 500.3104(2)(a).
MCL 500.3107(1)(a).
The adjustment was the result of extended negotiations and compromise. At the time of the settlement negotiations (the late 1980s), the cost of medical care was rising at a rate of over 10 percent annually.
MCL 500.3104(2)(a). The threshold has since been increased to $440,000. MCL 500.3104(2)(h).
USF&G also sought reformation of its consent judgment with Mr. Migdal. The court granted Mr. Migdal summary disposition under MCR 2.116(C)(8). USF&G did not file a claim of appeal from that order. Although Mr. Migdal filed a brief in this Court responding to this Court’s order granting leave to appeal, see n 13 infra, the time for appealing the circuit court’s order dismissing Mr. Migdal has expired, see MCR 7.205(F)(3), and Mr. Migdal is not a party to these proceedings.
The court in USF&G’s case declined to review the case under MCR 2.116(C)(9) because the parties relied on matters outside the pleadings. MCR 2.116(G)(5).
Because USF&G’s motion was granted before the court had ruled on Hartford’s motion, the court in Hartford’s case was aware of that ruling and distinguished USF&G’s case as involving a consent judgment instead of a settlement agreement.
US Fidelity Ins & Guaranty Co v Michigan Catastrophic Claims Ass’n, 274 Mich App 184, 192; 731 NW2d 481 (2007).
Id. at 197.
Id.
Judge White concurred and, noting that there were no allegations of bad faith by the insurers, added:
Under the statutory framework, the determination of reasonableness is to be made by the insurer, or the judicial system after litigation.... The statute does not contemplate that the MCCA will become a party to the insurance contract, or possible litigation, between the insured and the insurer, with a voice regarding whether a lesser or greater sum is reasonable under MCL 500.3107. Nor does it contemplate that the MCCA will act as a de facto regulatory body, determining what amounts are reasonable for which services. [Id. at 205-206 (WHITE, J., concurring).]
US Fidelity Ins & Guaranty Co v Michigan Catastrophic Claims Ass’n, 481 Mich 862 (2008). The order additionally asked the parties to consider:
(1) Whether factors to consider in determining whether the MCCA is precluded from questioning the reasonableness of the reimbursement claims in these cases include the MCCA’s failure to exercise to their full extent, before entry of the consent judgment in Docket No. 133466 and the settlement agreement in Docket No. 133468, its powers under MCL 500.3104(7)(b) and (g) to:
(a) require notice of claims likely to involve the MCCA;
(b) require notice of subsequent developments likely to materially affect the MCCA’s interests;
(c) establish claims procedures and practices for MCCA members; and,
(d) if the MCCA considers a member’s claims procedures and practices inadequate, to undertake to adjust or assist in adjusting the claim, at the member’s expense, so as to ensure that member claims submitted to the MCCA for reimbursement are, in fact, reasonable; and
(2) Whether, like the terms of declaratory judgments pertaining to PIP benefits payable in the future, the terms of consent judgments and settlement agreements pertaining to PIP benefits that embody terms that prove over time to call for reimbursement at a rate higher than the actual cost incurred are subject to:
(a) reduction based on the requirement that an expense must be actually incurred before a no-fault insurer is obliged to pay it; and
(b) redetermination from time to time of the amounts properly allowable, based on a change in facts or circumstances after entry of the consent judgment or settlement agreement. Cf. Manley v DAIIE, 425 Mich 140, 157 (1986); Proudfoot v State Farm Mut Ins Co, 469 Mich 476, 483-484 (2003).
Lash v Traverse City, 479 Mich 180, 186; 735 NW2d 628 (2007).
Id.
Id. at 187.
Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) (citation omitted), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).
In re Certified Question (Preferred Risk Mut Ins Co v Michigan Catastrophic Claims Ass’n), 433 Mich 710, 714-715; 449 NW2d 660 (1989). This Court further explained the policy underlying the statute:
The Legislature recognized that while such claims might he rare, they are also unpredictable, and equally as likely to strike a small or medium-sized insurer as they are a large insurer. The obvious problem is that the small or medium-sized companies have substantially fewer cars over which to spread the costs of potential losses, which means that the costs of providing unlimited medical and other benefits is higher per car for such companies, putting them at a competitive disadvantage in the state’s insurance market. In addition to this competitive disadvantage, the Legislature considered the practical “business difficulties” confronting all insurers as a result of such possible catastrophic claims, such as the difficulty in determining the amount of reserves to keep on hand.
It was thought that the creation of such an association of insurers would alleviate the competitive inequity of these catastrophic claims by spreading their cost throughout the industry, and also increase the statistical basis for prediction of the overall cost of such claims, making the management of these liabilities easier. See House Legislative Analysis, SB 306, March 13,1978. [In re Certified Question, supra at 714 n 2.]
The threshold loss amount is determined by the date the policy was issued or renewed. The subject policies of these appeals were “issued or renewed before July 1, 2002.” MCL 500.3104(2)(a). Thus, the relevant threshold loss amount for these appeals is $250,000. Id. The current threshold is $440,000. MCL 500.3104(2)(h).
MCL 500.3104(25)(c).
See MCL 500.3104(2)(a)-(k).
In re Certified Question, supra at 723.
MCL 500.3163(1) obligated the plaintiff to provide Michigan no-fault benefits.
The MCCA defined “resident” as “all owners or registrants of motor vehicles required to be registered [in Michigan] ... .” In re Certified Question, supra at 719.
Id. This Court, determining that the statute controlled over the MCCA’s definition of “resident,” held that the statute nonetheless contained a parallel provision to the MCCA’s definition of “resident.” As we will discuss, this Court explained that “personal protection insurance coverages,” as used in MCL 500.3104(2), refers to policies providing “the compulsory security requirements of [MCL 500.3101(1)],” i.e., “ ‘residents,’ in the language of the [MCCA’s] plan of operation.” In re Certified Question, supra at 723.
See also Liberty Mut Ins Co v Michigan Catastrophic Claims Ass’n, 248 Mich App 35, 42; 638 NW2d 155 (2001) (holding that the MCCA was not obligated to indemnify a claim under a California automobile insurance policy that was reformed into a Michigan no-fault automobile insurance policy five years after the subject accident, and stating that “the MCCA can refuse to indemnify claims paid under MCL 500.3163”); Farmers Ins Exch v South Lyon Community Schools, 237 Mich App 235, 238 n 1; 602 NW2d 588 (1999) (“[T]he MCCA is not obligated to indemnify its member insurers for amounts the insurers are not obligated to pay under their no-fault policies.”); Transamerica Ins Group v Michigan Catastrophic Claims Ass’n, 202 Mich App 514; 509 NW2d 540 (1993) (holding that the MCCA was not obligated to indemnify a claim submitted by two insurers seeking to aggregate their shared losses to exceed the $250,000 threshold); J C Penney Cas Ins Co v Michigan Catastrophic Claims Ass’n, 177 Mich App 538 (1989), aff'd 434 Mich 901 (1990) (holding that the plaintiff insurer was not entitled to reimbursement from the MCCA).
In re Certified Question, supra at 723. Plaintiffs argue that this statement is obiter dictum. “ ‘Obiter dictum’ is defined as ‘[a] judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential....’” People v Williams, 475 Mich 245, 251 n 1; 716 NW2d 208 (2006), quoting Black’s Law Dictionary (7th ed). As stated, In re Certified Question held that § 3104(2) only applied to “a policy which was written in this state to provide the security required by § 3101(1) of the no-fault act.” In re Certified Question, supra at 719. The Court’s interpretation of “personal protection insurance coverages” was not unnecessary. Rather, it directly reflects the holding.
The dissent cites In re Certified Question for several propositions of law, but distinguishes its holding. Despite conceding that § 3104(2) imposes three requirements that a member insurer’s claim must meet, the dissent nonsensically asserts that the MCCA is without authority to determine whether a claim complies with § 3104(2). Post at 448-450 n 15. The dissent’s position is fallacious on its face; it would rob any meaning from what the dissent concedes are requirements for indemnification. Moreover, the dissent attempts to limit the holding in In re Certified Question to noncompliance with § 3104(2) that is “objectively clear.” Post at 449 n 15. Nothing in In re Certified Question suggests such a limitation. Rather, In re Certified Question plainly held that the MCCA is not required to indemnify a claim that does not meet the requirements of § 3104(2); we do the same today.
MCL 500.3105(1) provides: “Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.”
See Cruz v State Farm Mut Auto Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002) (“[W]here contract language is neither ambiguous, nor contrary to the no-fault statute, the will of the parties, as reflected in their agreement, is to be carried out, and thus the contract is enforced as written.”).
Of course, such practice may be subject to the MCCA’s “takeover” authority under MCL 500.3104(7)(g), which provides:
(7) The association shall do all of the following on behalf of the members of the association:
(g) Establish procedures for reviewing claims procedures and practices of members of the association. If the claims procedures or practices of a member are considered inadequate to properly service the liabilities of the association, the association may undertake or may contract with another person, including another member, to adjust or assist in the adjustment of claims for the member on claims that create a potential liability to the association and may charge the cost of the adjustment to the member.
The dissent asserts that § 3104(7)(g) authorizes the MCCA “to adjust only ‘procedures and practices’ of the member that produce an unreasonable payment amount; the power does not include the power to adjust the amount.” Post at 455-456. Section 3104(7)(g) permits the MCCA “to adjust or assist in the adjustment of claims for the member on claims that create a potential liability to the association____” (Emphasis added.) As used in § 3104(7)(g), “adjust” means “[t]o settle or arrange; to free from differences or discrepancies. To bring to satisfactory state so that parties are agreed, as to adjust amount of loss by fire or controversy regarding property or estate... . Determination of amount to be paid to insured by insurer to cover loss or damage sustained.” Black’s Law Dictionary (5th ed); see also Random House Webster’s College Dictionary (1997) (“to determine the amount to be paid in settlement of (an insurance claim)”). Contrary to the dissent’s assertion, the MCCA’s authority is not limited to adjusting the member insurer’s “procedures and practices”; the MCCA is authorized to negotiate directly with the insured to reach a settlement of the claim and, under those circumstances, the MCCA is “adjusting” the amount. When it “adjusts” a claim, the MCCA is seeking to reduce its liability by preventing the member insurer from accepting excess liability. Invariably any adjustment will depend on the terms of the policy.
The instant cases are distinct from the norm, however. Here, plaintiffs agreed to certain payments in a consent judgment and a settlement agreement and remain bound by those agreements regardless whether the MCCA indemnifies the entire claim or invokes its “takeover” authority. Although member insurers are not “obligated” to pay their insureds until the claimed expense is actually incurred, see Proudfoot v State Farm Mut Ins Co, 469 Mich 476, 484 (2003), any opportunity to “adjust” Migdal’s and Allen’s claims and thereby reduce plaintiffs’ liability before they become obligated is severely limited by the terms of their agreements.
The dissent contends that the consent judgment and settlement agreement became “part of the insurer’s coverage.” Post at 448. The dissent’s attempt to bootstrap the terms of the consent judgment and settlement agreement into the insureds’ coverages is inconsistent with the dissent’s own definition of “coverage,” and is unpersuasive. We agree with the dissent that “ ‘coverage’ refers to protection afforded by an insurance polity or the sum of risks assumed by an insurance policy.” Jarrad v Integon Nat’l Ins Co, 472 Mich 207, 217; 696 NW2d 621 (2005), citing LeBlanc v State Farm Mut Auto Ins Co, 410 Mich 173, 204; 301 NW2d 775 (1981). Thus, the terms of the policy control the standard for the MCCA’s review.
Each party advances a policy argument in its favor. The MCCA argues that the no-fault system is intended keep automobile insurance costs affordable. See Cameron v Auto Club Ins Ass’n, 476 Mich 55, 71-72; 718 NW2d 784 (2006) (“[A] dominant legislative purpose permeating throughout the no-fault act is to ensure that this mandatory coverage is affordable.”). The premium the MCCA charges a member insurer is passed on to its insureds. See In re Certified Question, supra at 729; MCL 500.3104(22). As a result, the MCCA argues, if the MCCA must incur significant additional liability for “unreasonable charges,” no-fault insurance costs will rise dramatically. In response, plaintiffs argue that no-fault insurance was intended to provide assured, adequate, and prompt payment. See Shavers v Attorney General, 402 Mich 554, 579-580; 267 NW2d 72 (1978) (“The goal of the no-fault insurance system was to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses.”); MCL 500.3142. Plaintiffs argue that if the MCCA may reject member insurer claims on the basis of the reasonableness of the charges, member insurers will need to seek assurances that the MCCA will reimburse certain payments before making them, thus delaying payment.
Both policy arguments are compelling. It is not for this Court, however, to favor one policy objective over the other. “[P]olicy decisions are properly left for the people’s elected representatives in the Legislature, not the judiciary. The Legislature, unlike the judiciary, is institutionally equipped to assess the numerous trade-offs associated with a particular policy choice.” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 589; 702 NW2d 539 (2005). The Legislature has made its policy choice. Given the text of MCL 500.3104(2), we believe that the Legislature intended to allow the MCCA to reject claims for charges in excess of the member’s policy coverage. Thus, the parties’ competing policy arguments are misplaced because this Court is without authority to replace the Legislature’s choice with our own.
MCL 500.3104(8)(g).
Id.
MCL 500.3104(2).
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MARKMAN, J.
We granted leave to appeal to consider whether defendant is entitled to a new trial on the basis that a convicted felon served as a juror in his original trial. The trial court held that defendant is not entitled to a new trial because he failed to establish actual prejudice. The Court of Appeals, on the other hand, held that defendant is entitled to a new trial because the presence of the convicted felon on his jury did prejudice him. We do not believe that the trial court abused its discretion in denying defendant’s motion for a new trial under these circumstances because the trial court did not clearly err in concluding that defendant failed to establish that he was actually prejudiced. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for it to address defendant’s remaining issues.
I. FACTS AND PROCEDURAL HISTORY
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct for forcing his then-girlfriend’s seven-year-old daughter to perform fellatio on him. Before sentencing, defendant learned that one of the jurors had concealed the fact that he had been convicted of assault with intent to commit criminal sexual conduct in 1991 and 1999 for having assaulted his sister and another person to whom he referred as an “adopted child” who was “more like a niece.” An evidentiary hearing was held. The juror in question stated that he did not reveal his prior convictions on his juror questionnaire because they were old and he did not believe that they were even on his record anymore. He further stated that because he had pleaded guilty in both of his criminal cases, he had never before been through a jury selection process. When asked whether he had been intentionally untruthful so that he could sit as a juror, he answered, “no,” and he indicated that he “didn’t really want to sit on the panel in the first place . . . .” The juror further testified that he had tried to be fair during the trial and that he never tried to improperly persuade the jury. Following this testimony, the trial court denied defendant’s motion for a new trial, ruling that there was no evidence that defendant had suffered actual prejudice. The trial court explained that if the parties had known about the juror’s past convictions, the prosecutor, not the defendant, would have most likely been the one seeking to excuse this juror. On appeal, the Court of Appeals reversed defendant’s conviction and remanded for a new trial on the basis of juror misconduct. Unpublished opinion per curiam, issued January 17, 2008 (Docket No. 273488). We granted the prosecutor’s application for leave to appeal and limited the issues to:
(1) whether the Court of Appeals erred in reversing the defendant’s conviction and remanding this case to the circuit court for a new trial pursuant to People v DeHaven, 321 Mich 327 (1948); (2) whether DeHaven was wrongly decided or has been superseded by MCL 600.1354(1); (3) whether a criminal defendant must establish actual prejudice pursuant to MCL 600.1354(1) where the challenged juror was excusable for cause; (4) how the “actual prejudice” standard for purposes of MCL 600.1354(1) should be defined; and (5) whether the juror’s failure to disclose his status as a felon, which disqualified him from serving on the jury, constituted structural error pursuant to Neder v United States, 527 US 1 (1999). [481 Mich 851, 851-852 (2008).]
II. STANDARD OF REVIEW
A trial court’s factual findings are reviewed for clear error. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). “Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made.” People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002). A trial court’s decision to deny a motion for a new trial is reviewed for an abuse of discretion. Cress, 468 Mich at 691. An abuse of discretion occurs only “when the trial court chooses an outcome falling outside [the] principled range of outcomes.” People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
III. ANALYSIS
There are several statutory qualifications that a person must satisfy in order to be eligible to serve as a juror. MCL 600.1307a(l) provides:
To qualify as a juror a person shall:
(a) Be a citizen of the United States, 18 years of age or older, and a resident in the county for which the person is selected, and in the case of a district court in districts of the second and third class, be a resident of the district.
(b) Be able to communicate in the English language.
(c) Be physically and mentally able to carry out the functions of a juror. Temporary inability shall not be considered a disqualification.
(d) Not have served as a petit or grand juror in a court of record during the preceding 12 months.
(e) Not have been convicted of a felony. [Emphasis added.]
If a potential juror does not satisfy one of these statutory qualifications, a party may challenge the potential juror for cause. MCR 2.511(D)(1). There are also several other grounds that would justify a challenge for cause. MCR 2.511(D) provides, in pertinent part:
It is grounds for a challenge for cause that the person:
(1) is not qualified to be a juror,
(2) is biased for or against a party or attorney;
(3) shows a state of mind that will prevent the person from rendering a just verdict, or has formed a positive opinion on the facts of the case or on what the outcome should be;
(4) has opinions or conscientious scruples that would improperly influence the person’s verdict;
(5) has been subpoenaed as a witness in the action;
(6) has already sat on a trial of the same issue;
(7) has served as a grand or petit juror in a criminal case based on the same transaction;
(8) is related within the ninth degree (civil law) of consanguinity or affinity to one of the parties or attorneys;
(9) is the guardian, conservator, ward, landlord, tenant, employer, employee, partner, or client of a party or attorney;
(10) is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or has been accused by that party in a criminal prosecution;
(11) has a financial interest other than that of a taxpayer in the outcome of the action;
(12) is interested in a question like the issue to be tried. [Emphasis added.]
MCR 6.412(D)(2) provides that if “the court finds that a ground for challenging a juror for cause is present, the court on its own initiative should, or on motion of either party must, excuse the juror from the panel.” Similarly, MCL 600.1337 states that “[wjhen the court finds that a person in attendance at court as a juror is not qualified to serve as a juror, or is exempt and claims an exemption, the court shall discharge him or her from further attendance and service as a juror.” Finally, MCL 600.1354(1) states, in pertinent part:
Failure to comply with the provisions of this chapter shall not... affect the validity of a jury verdict unless the party ... claiming invalidity has made timely objection and unless the party demonstrates actual prejudice to his cause and unless the noncomplianee is substantial. [Emphasis added.]
In the instant case, because the juror in question was a convicted felon, he was not statutorily qualified to serve as a juror under MCL 600.1307a(l)(e). However, as a result of the juror’s false answers on his juror questionnaire, neither of the parties nor the tried court had any knowledge of the juror’s felony convictions, and, thus, the parties did not challenge the juror pursuant to MCR 2.511(D)(1) and the trial court did not discharge the juror pursuant to MCL 600.1337 and MCR 6.412(D)(2). Accordingly, the issue here is whether defendant is entitled to a new trial as a result of this convicted felon having served on his jury.
Although a criminal defendant has a constitutional right to be tried by an impartial jury, US Const, Am VI; Const 1963, art 1, § 20, a criminal defendant does not have a constitutional right to be tried by a jury free of convicted felons. Instead, the right to a jury free of convicted felons is granted by statute. And by statute, a violation of this “right” only requires a new trial if the defendant demonstrates that such a violation “actually] prejudice[d]” him. MCL 600.1354(1).
A juror’s failure to disclose information that the juror should have disclosed is only prejudicial if it denied the defendant an impartial jury. “[Defendants] are not entitled to a new trial unless the juror’s failure to disclose denied [the defendants] their right to an impartial jury.” McDonough Power Equip, Inc v Greenwood, 464 US 548, 549; 104 S Ct 845; 78 L Ed 2d 663 (1984). “ ‘The misconduct must be such as to reasonably indicate that a fair and impartial trial was not had . . . .’ ” People v Nick, 360 Mich 219, 230; 103 NW2d 435 (1960), quoting 39 Am Jur, New Trial, § 70, p 85.
In Froede v Holland Ladder & Mfg Co, 207 Mich App 127, 135; 523 NW2d 849 (1994), the Court of Appeals held that actual prejudice was established because the juror at issue had deliberately misrepresented her criminal history on the juror questionnaire and had previously hired an assassin to kill a drug informant who had agreed to testify against the juror’s ex-husband (a notorious drug kingpin). However, the Court of Appeals “caution[ed] that our opinion is not to stand for the proposition that prejudice will always be found when a convicted felon makes a misrepresentation on a juror questionnaire or at voir dire.” Id. The Court of Appeals clearly indicated that its bases for finding actual prejudice were the juror’s deliberate misrepresentation and the nature of the juror’s criminal history, i.e., she hired an assassin to kill a potential witness. Id.
In People v Carey, 110 Mich App 187, 193; 312 NW2d 205 (1981), the Court of Appeals held that the trial court did not err in failing to declare a mistrial when it was discovered shortly after deliberations had begun that one of the jurors was a convicted felon, in part because defendant did not demonstrate that he had been actually prejudiced. In reaching this conclusion, the Court of Appeals relied on the fact that the “juror testified that his convictions would not affect his ability to render an impartial verdict.” Id.
As we explained earlier, defendants have a constitutional right to an impartial jury. However, as Justice COOLEY, writing for this Court, explained, jurors are “presumed to be. . . impartial, until the contrary is shown.” Holt v People, 13 Mich 224, 228 (1865). The burden is on the defendant to establish that the juror was not impartial or at least that the juror’s impartiality is in reasonable doubt. Id.
In Nick, the defendant argued that he was entitled to a new trial because one of the jurors had failed to disclose the fact that her father was an attorney practicing in the area and defense counsel had made some reference to her father during the trial. This Court held that the defendant was not entitled to a new trial because he had not established that the juror was not impartial. Nick, 360 Mich at 234. As this Court explained:
“[I]t is well established that not every instance of misconduct in a juror will require a new trial. The general principle underlying the cases is that the misconduct must be such as to affect the impartiality of the jury .... A new trial will not be granted for misconduct of the jury if no substantial harm was done thereby to the party seeking a new trial.... The misconduct must be such as to reasonably indicate that a fair and impartial trial was not had ....” [Id. at 230, quoting 39 Am Jur, New Trial, § 70, p 85.][ ]
In the instant case, defendant’s only complaint about the juror at issue in this case is that he is a convicted felon. However, defendant has offered no evidence that the juror was not impartial. In Holt, 13 Mich at 229, the Court concluded that the juror’s own admission that he had formed a partial opinion regarding the defendant’s guilt before the trial even began was not sufficient to rebut that juror’s impartiality. If even such an admission is not sufficient to rebut the presumption of impartiality, we fail to see how a juror’s mere status as a convicted felon can be considered sufficient to rebut that presumption.
Defendant has not offered any evidence to demonstrate that he was prejudiced by the convicted felon’s presence on his jury. That is, defendant has offered no evidence to establish that the juror was partial. The juror testified that his status as a felon did not affect his deliberations and that he did not share this information with the other jurors or try to improperly persuade the rest of the jurors in any way. There is simply no evidence that this juror improperly affected any other jurors. Furthermore, as the trial court explained, this juror would likely have been more harmful to the prosecutor than to defendant. Having been previously convicted of similar offenses, the juror, if anything, likely would have been sympathetic towards defendant. For these reasons, we do not believe that the trial court clearly erred in ruling that defendant had not demonstrated that he was actually prejudiced by the convicted felon’s presence on his jury.
In addition, the presence of a convicted felon on defendant’s jury did not constitute structural error. A structural error is a “fundamental constitutional error[] that ‘def[ies] analysis by “harmless error” standards.’ ” Neder v United States, 527 US 1, 7; 119 S Ct 1827; 144 L Ed 2d 35 (1999) (emphasis added; citations omitted). Here, there was no constitutional error. As discussed above, there is no constitutional right to have a jury free of convicted felons. Therefore, that a convicted felon sat as a juror on defendant’s jury did not constitute a structural error.
The Court of Appeals in the instant case relied heavily on People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948), People v Daoust, 228 Mich App 1; 577 NW2d 179 (1998), People v Manser, 250 Mich App 21; 645 NW2d 65 (2002), and People v Crear, 242 Mich App 158; 618 NW2d 91 (2000), to conclude that defendant is entitled to a new trial. However, none of those cases involved the question that is at issue here: whether the presence of a convicted felon on a defendant’s jury requires a new trial. Furthermore, none of those cases involved the application of MCL 600.1354(1) because none involved “failure[s] to comply with the provisions of [chapter 13 of the Revised Judicature Act, MCL 600.1300 et seq.],” and because DeHaven was decided before MCL 600.1354(1) was even enacted.
In DeHaven, a case in which the defendant was charged with and ultimately convicted of raping his 13-year-old stepdaughter, two related jurors failed to disclose that one of their family members had been convicted of raping his 13-year-old daughter. The trial court found that the jurors had not been dishonest during voir dire, that they had indicated that they could fairly and impartially sit as jurors, and that any prejudices the jurors did have would likely have benefitted the defendant anyway. For these reasons, the trial court denied the defendant’s motion for a new trial. This Court reversed.
After indicating that the “right to be tried by an impartial jury is a constitutional guaranty,” DeHaven concluded:
The normal person revolts at the thought of a father or stepfather raping a 13-year-old girl. We are of the opinion that the relationship of these two jurors to one who had committed a similar crime was such that it deprived them of the capacity to act impartially. Defendant has the right to a trial by an impartial jury. We cannot say that he had such a trial. [DeHaven, 321 Mich at 334.]
As discussed earlier, DeHaven is distinguishable from the instant case because the former did not involve a juror who was a convicted felon and it did not involve MCL 600.1354(1). In addition, it appears that DeHaven reviewed de novo the question whether the two jurors were biased, rather than for clear error. As discussed above, an appellate court must review a trial court’s factual findings for clear error, Cress, 468 Mich at 691, and the appellate court should only reverse such findings if it is “left with a definite and firm conviction that a mistake has been made.” Johnson, 466 Mich at 497-498. In DeHaven, the trial court determined that the jurors were not biased, but, even if they were, such bias would have benefitted the defendant. DeHaven, 321 Mich at 331. DeHaven, however, did not even mention the trial court’s factual findings in its analysis, and clearly reviewed the issue de novo. That is, DeHaven concluded that the jurors were biased and that they were biased against the defendant, without giving any significance to the fact that the trial court, which was obviously in the better position to determine whether the jurors were biased and against which party, had already concluded that the jurors were not biased, but, if they were, they were biased in favor of the defendant.
DeHaven also reviewed de novo, rather than for an abuse of discretion, the issue whether defendant was entitled to a new trial. As discussed earlier, a trial court’s decision to deny a motion for a new trial must be reviewed for an abuse of discretion. Cress, 468 Mich at 691. An abuse of discretion occurs only “when the trial court chooses an outcome falling outside [the] principled range of outcomes.” Babcock, 469 Mich at 269. In DeHaven, the trial court held that the defendant was not entitled to a new trial. However, DeHaven, without giving any significance at all to the trial court’s decision, held that the defendant was entitled to a new trial. That is, DeHaven clearly engaged in de novo review, rather than the abuse of discretion review that it should have.
Moreover, our “harmless error” jurisprudence has evolved significantly since DeHaven was decided in 1948. As explained in People v Bell, 473 Mich 275, 294; 702 NW2d 128 (2005) (opinion by CORRIGAN, J.), “our harmless error jurisprudence has evolved a great deal. . . .” Errors generally no longer require automatic reversal. Id., citing People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). Instead, a preserved, nonconstitutional error is not a ground for reversal unless the defendant proves that it is “more probable than not that the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). Even a preserved, constitutional error is generally not a ground for reversal if the prosecutor proves that the error was harmless beyond a reasonable doubt. People v Anderson (After Remand), 446 Mich 392, 406; 521 NW2d 538 (1994). An unpreserved error is not a ground for reversal unless the defendant can demonstrate that the error was plain, that it affected the outcome, and that it resulted in the conviction of an actually innocent person or “ ‘ “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings” ....’” Carines, 460 Mich at 763-764 (citations omitted).
With regard to the specific issue here, i.e., juror misconduct, this Court has held that “a verdict in a criminal case should not be upset because of alleged misconduct on the part of members of the jury unless ‘substantial harm’ has resulted . . . .” Nick, 360 Mich at 230. “ ‘ “[A litigant] is entitled to a fair trial hut not a perfect one” for there are no perfect trials.’ ” McDon ough, 464 US at 553 (citations omitted). “We have ... come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered ‘ “citadels of technicality.” ’ ” Id. (citations omitted). “The harmless-error rules . .. embody the principle that courts should exercise judgment in preference to the automatic reversal for ‘error’ and ignore errors that do not affect the essential fairness of the trial.” Id. DeHaven, however, made absolutely no mention of any “harmless error” standard.
Finally, the crux of DeHaven's holding was that a defendant has a constitutional right to an impartial jury and, because the jurors at issue in DeHaven lacked the capacity to act impartially, the defendant was entitled to a new trial. DeHaven, 321 Mich at 334. There is no question that a criminal defendant has a constitutional right to be tried by an impartial jury. US Const, Am VI; Const 1963, art 1, § 20. However, the instant question is whether the presence of a convicted felon on defendant’s jury denied defendant his right to an impartial jury. For all the reasons noted earlier, DeHaven is neither binding nor persuasive precedent with regard to this question.
In Daoust, the defendant was charged with two counts of first-degree child abuse on the basis of injuries that he inflicted on his girlfriend’s daughter. On the morning of the second day of defendant’s trial, during a break in the girlfriend’s testimony, one of the jurors indicated that he may have attended junior high school with the girlfriend. The trial court denied defendant’s request to remove the juror, and the Court of Appeals held that defendant was not entitled to a new trial. The Court of Appeals held that
when information potentially affecting a juror’s ability to act impartially is discovered after the jury is sworn, the defendant is entitled to relief only if he can establish (1) that he was actually prejudiced by the presence of the juror in question or (2) that the juror was properly excusable for cause. [Daoust, 228 Mich App at 9 (emphasis added); see also Crear, 242 Mich App at 167, which cited this two-part test with approval.]
To the extent that in Daoust the Court of Appeals broadly states in dicta that a new trial is always required whenever a juror would have been excusable for cause, Daoust is wrong and is overruled. As discussed earlier, the proper inquiry is whether the defendant was denied his right to an impartial jury. If he was not, there is no need for a new trial.
IV CONCLUSION
The trial court did not clearly err in finding that defendant failed to establish that he was actually prejudiced by the presence of a convicted felon on his jury, and, thus, the trial court did not abuse its discretion when it denied defendant’s motion for a new trial. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for it to address defendant’s remaining issues.
Taylor, C.J., and Weaver, Corrigan, and Young, JJ., concurred with MARKMAN, J.
The juror questionnaire asked, “Have you ever been a victim, witness, plaintiff or defendant in a criminal or civil suit?” It also asked, “Have you ever been convicted of a felony?” The juror answered “no” to both questions.
During voir dire, defense counsel asked whether jurors had any family member or friend who was a lawyer, a judge, or anyone involved in the criminal justice system, such as a jail guard or prison guard. Because the juror did not believe that he fit into any of those categories, he did not answer the question affirmatively. During voir dire, the prosecutor asked whether jurors “had personal dealings with criminal sexual conduct in [their] immediate, close family to where — to the point where they think they can’t be fair in this kind of trial.” The juror did not answer this question affirmatively because he believed that he could be fair. The trial court determined that although the juror answered the questions on the juror questionnaire untruthfully, he did not answer any of the voir dire questions untruthfully given the examples and the qualifiers that were used by the attorneys in the potentially applicable questions. The trial court further concluded that the juror was not attempting to be deceitfiil and that he did not have any ulterior motives in answering the questions in the manner that he did.
The Court of Appeals agreed with the trial court that
[w]hile the juror clearly misrepresented his status on the questionnaire with regard to criminal history,.. . the questions during voir dire, as framed and qualified, did not technically require the juror to divulge his past convictions, so it cannot be said that the juror lied or made a misrepresentation during voir dire. [Unpublished opinion per curiam, issued January 17, 2008 (Docket No. 2734888), p 2.]
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” US Const, Am VI.
“In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury ....” Const 1963, art 1, § 20.
In United States v Uribe, 890 F2d 554, 562 (CA 1, 1989), the United States Court of Appeals for the First Circuit held that a “statutory violation — allowing a convicted felon to serve — did not implicate the fundamental fairness of the trial or the defendants’ constitutional rights.” “The fact that a juror technically should have been disqualified, and was not, does not automatically require a new trial.” Id. Instead, under such circumstances, the defendant is required to prove prejudice. Id.; see also 47 Am Jur 2d, Jury, § 152, p 759 (“The Sixth Amendment does not require automatic reversal of every conviction reached by a jury that included a felon.”); Anno: Disqualification or exemption of juror for conviction of, or prosecution for, criminal offense, 75 ALR5th 295, 310, § 3[b] (stating that several courts have “held that the constitutional right to a fair and impartial jury was not violated by the . .. failure to exclude convicted felons”); United States v Barker, 1999 US App LEXIS 9459, *3 (CA 4, 1999) (“Although convicted felons are statutorily excluded from jury service, a criminal defendant does not have a corresponding constitutional right to have convicted felons absolutely barred from serving on his jury. The Sixth Amendment only requires that the jury be free from bias.”) (citation omitted); Coleman v Calderon, 150 F3d 1105, 1117 (CA 9, 1998) (“The Sixth Amendment does not bar ex-felons from jury service.”), overruled on other grounds 525 US 141 (1998); Coughlin v Tailhook Ass’n, 112 F3d 1052, 1059 (CA 9, 1997) (“[T]he participation of a felon-juror is not an automatic basis for a new trial.”); United States v Boney, 314 US App DC 287, 289; 68 F3d 497 (1995) (“[T]he Sixth Amendment does not absolutely bar felon-jurors. Rather, the appropriate remedy for an allegation of juror bias is to hold an evidentiary hearing in order to determine whether the juror’s failure to disclose his felon status resulted in ‘actual bias’ to the defendant.”) (citation omitted); United States v Humphreys, 982 F2d 254, 261 n 5 (CA 8, 1992) (“ ‘The Sixth Amendment right to an impartial jury does not require an absolute bar on felon-jurors.’ ”) (citation omitted). The fact that before MCL 600.1307a(1)(e) was amended in 2002, convicted felons who had already served their sentences were qualified to serve as jurors underscores that the “right” to a jury free of convicted felons is not a constitutional right.
At oral argument before this Court, defense counsel argued that defendant was denied his right to a 12-member jury, see Const 1963, art 1, § 20; MCR 6.410(A), because the convicted felon was not qualified to serve as a juror. First, this issue is unpreserved, as defendant did not raise it until oral argument before this Court. Second, defendant fails to recognize that although MCL 600.1307a(l)(e) provides that a convicted felon is not qualified to serve as a juror, MCL 600.1354(1) provides that a violation of this rule “shall not.. . affect the validity of a jury verdict unless the party . . . claiming the invalidity ... demonstrates actual prejudice .. ..” The Legislature was free to decide to either allow or not allow convicted felons to serve as jurors. Accordingly, it was likewise free to allow a jury verdict obtained from a jury that included a convicted felon to not be automatically invalidated. That is, the Legislature was free to provide, as it did, that a 12-member jury that includes a convicted felon is nevertheless a 12-member jury. Furthermore, if the defendant were correct that every conviction that was obtained from a jury with an unqualified juror on it had to be reversed, all jury verdicts would be second-guessed. That is, every jury verdict in the state of Michigan would be contingent upon a court subsequently determining that none of the jurors who sat on the jury was statutorily disqualified for one reason or another.
Contrary to the dissent, we do “address how the ‘actual prejudice’ standard for purposes of [MCL 600.1354(1)] should be defined.” Post at 576. To repeat, a juror’s failure to disclose information that the juror should have disclosed constitutes “actual prejudice” if it denied the defendant an impartial jury. Although we recognize that it may be difficult, although not impossible, for a defendant to establish that he was “actually prejudiced,” the Legislature could not have been clearer that a defendant is not entitled to a new trial unless the defendant “demonstrates actual prejudice to his cause . ...” MCL 600.1354(1). Unlike the dissent, we are simply unwilling to disregard this clear directive from the Legislature.
When information that affects a juror’s qualifications to sit as a juror is discovered after the trial, “most states ... require a showing of juror bias” before they will grant the defendant a new trial. Note, When jurors lie: differing standards for new trials, 22 Am J Crim L 733, 737 (1995).
The instant case is obviously distinguishable from Froede. Unlike the juror in Froede, the juror here did not deliberately misrepresent his criminal history. Rather, the trial court stated, “I don’t find that he was attempting to be deceitful or that he had any ulterior motive in answering these questions that way,” and we have no reason to believe that the trial court clearly erred in making such a finding. In addition, unlike the juror in Froede, the juror here had never been convicted of any crimes involving tampering with the administration of justice.
Likewise, in People v Johnson, 245 Mich App 243; 631 NW2d 1 (2001), the Court of Appeals affirmed the defendant’s domestic violence conviction. The defendant was not entitled to a new trial even though one of the jurors was a complainant in a domestic violence prosecution, in part because the defendant had not demonstrated that he was actually prejudiced. In the lead opinion, Judge O’Connell explained that, “[o]n the basis of the juror’s assurances [that she could be fair and impartial], and the trial court’s acceptance of her assurances, we see no reasonable probability that the outcome of the case would have been different.” Id. at 259-260 (opinion by O’Connell, J.).
The pertinent paragraph from Holt, 13 Mich at 228, states:
[I]t must be borne in mind that a person called as a juror is presumed to be qualified and impartial, until the contrary is shown. The challenging party takes upon himself the burden of proving the disqualification, and he does not reheve himself of that burden until he has made out a prima facie case, or, in criminal cases, such a case, at the least, as leaves the juror’s impartiality in reasonable doubt. It is not sufficient for him to prove facts, from which vague inferences of bias or favor can be drawn, and then demand that his adversary shall be concluded unless he rebuts those inferences by countervailing testimony.
Holt predated the enumeration of statutory disqualifications now contained in MCL 600.1307a. The issue in Holt was whether the defendant was denied his right to an impartial jury. Accordingly, Holt’s discussion of juror “disqualification” was clearly not in reference to the statutory juror disqualifications at issue in the instant case, but, rather, was in reference to a juror’s ability to remain impartial. Contrary to the dissent, Holt very clearly states that the burden is on the defendant to prove that the juror was not impartial or at least that the juror’s impartiality is in reasonable doubt. Id. Although the dissent concludes that “Holt requires less than actual bias,” post at 576 n 45, it fails to explain how a defendant is to place the juror’s impartiality in reasonable doubt without offering evidence in support of that proposition.
Similarly, the United States Supreme Court has held:
[T]o obtain a new trial. .., a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have pro vided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial. [McDonough, 464 US at 556 (second italics added).]
Although the federal standard requires a new trial if a “correct response would have provided a valid basis for a challenge for cause,” this is because of the fact that there is no federal rule listing specific grounds for challenges for cause; instead, challenges for cause are only permitted upon a showing that the juror is not capable of being impartial. Because Michigan’s rule does list grounds for challenges for cause, and because one of these grounds is that the juror is not qualified to sit as a juror (which qualifications do not pertain to a juror’s capability of being impartial), our standard to obtain a new trial does not focus on whether a “correct response would have provided a valid basis for a challenge for cause,” but, instead, focuses on whether the juror was impartial. As the United States Supreme Court has explained, “[defendants] are not entitled to a new trial unless the juror’s failure to disclose denied [defendants] their right to an impartial jury.” Id. at 549.
Defendant argues that the juror was excusable for cause under MCR 2.511(D)(1) to (4), (6), (10), and (12). However, his basis for all of these arguments is the juror’s status as a convicted felon. In defendant’s motion for a new trial, defendant only argued that defendant was excusable for cause under MCR 2.511(D)(1) and (12). Nevertheless, even assuming that the defendant had properly preserved all the grounds that he is now raising, we would still conclude that defendant is not entitled to a new trial. That is, for the same reasons that we conclude that defendant failed to establish that the juror was partial, defendant failed to establish that the juror was “biased”; “show[ed] a state of mind that [would] prevent [him] from rendering a just verdict”; had “formed a positive opinion” about the case; had “opinions or conscientious scruples that would improperly influence [his] verdict”; or was “interested.” MCR 2.511(D)(2) to (4) and (12). In addition, the juror had not “already sat on a trial of the same issue” and had not “complained of or ... been accused by [defendant] in a criminal prosecution.” MCR 2.511(D)(6), (10).
The dissent fails to recognize that its conclusion that a defendant is entitled to a new trial any time a juror had a “preconceived opinion or feeling,” post at 577, is wholly at odds with this Court’s decision in Holt, which held that the “ ‘mere statement of a juror, that he has formed an opinion, is not sufficient to disqualify him.’ ” Holt, 13 Mich at 230 (citation omitted). Furthermore, the dissent’s statement that, because the juror in this case committed similar crimes, he “must have had preconceived notions about defendant” is nothing more than pure speculation. Post at 578. Finally, although we commend the dissent for its resort to a dictionary, it completely ignores the context of the word that it is attempting to define. That is, the dissent concludes that a juror is prejudiced if he or she had a “preconceived opinion or feeling.” Post at 577. However, MCL 600.1354(1) does not use the word “prejudice” in terms of the juror’s “prejudice.” Instead, it uses this word in terms of the defendant’s prejudice. MCL 600.1354(1) states that a defendant is not entitled to a new trial unless the defendant demonstrates “actual prejudice to his cause . .. .” In this context, it is clear that the most applicable definition of “prejudice” is “damage or injury; detriment,” Random House Webster’s College Dictionary (2001), which the dissent quotes post at 577. A defendant is damaged or injured as a result of a juror withholding relevant information only if that juror was not impartial.
Moreover, to disagree, as we do, with the dissenting justice on the appropriate definition of a term having multiple definitions — in this instance “prejudice” — is hardly, as the dissent asserts, to manifest an “unquestioning confidence” in our own “ability to decide which dictionary definition of a word the Legislature intended.” Post at 578 n 48. Rather, it is simply to manifest a belief that the dissenting justice is wrong.
The dissent likewise does not direct us toward any evidence of prejudice. Instead, it simply presumes prejudice from the fact that the juror was statutorily disqualified. However, if such a presumption were permitted, MCL 600.1354(1) would be rendered meaningless. MCL 600.1354(1) specifically states that failure to comply with the statutory qualifications does not require a new trial unless the defendant demonstrates “actual prejudice.” Yet, under the dissent’s approach, failure to comply with the statutory qualifications would always require a new trial. Moreover, contrary to the dissent’s contention, “an appearance of potential bias” is not “actual prejudice”; rather, it is, quite obviously, only an appearance of prejudice. Post at 574 (emphasis added). MCL 600.1354(1), however, clearly requires the defendant to demonstrate “actual prejudice.” (Emphasis added.) The dissent criticizes us for equating “actual prejudice” and “actual bias.” However, it fails to explain how a juror’s failure to disclose information that he or she should have disclosed could actually prejudice a defendant if the juror was not actually biased.
According to the trial court, the juror stated that “I had that experience, but I can be essentially fair and objective; I can be fair to the parties in this case.”
The dissent contends that defendant is entitled to a new trial “irrespective of which way [the juror’s] bias is expected to cut.. ..” Post at 580. However, this contention is clearly erroneous given that MCL 600.1354(1) expressly states that the defendant must demonstrate “actual prejudice to his cause . . . .” (Emphasis added.)
As the trial court explained:
I’m sure that... had [the juror] answered those questions accurately in the questionnaire[J the prosecutor would not have permitted him to stay on the jury. ... I have fairly equal confidence that a defense attorney, knowing that [a] person ... convicted of a crime is called to sit as a juror, especially a trial of someone who is accused of a similar type of crime, would not exercise a ... challenge. [The] [d]efense attorney in this case ... does not indicate to this Court that he would have exercised a ... challenge had he known.
Many commentators have indicated that one of the rationales behind excluding convicted felons from juries is the belief that convicted felons are biased against the government. See, e.g., Binnall, EG1900 ... The number they gave me when they revoked my citizenship: Perverse consequences of ex-felon civic exile, 44 Willamette L R 667, 672 (2008) (“One such character trait of concern to those advocating for felon exclusion from jury service is ‘that felons remain adversarial towards the government and will sympathize unduly with any criminal defendant.’ ”) (citation omitted); Note, A jury of one’s peers: Virginia’s restoration of rights process and its disproportionate effect on the African American community, 46 Wm & Mary L R 2109, 2136 (2005) (“The state’s policy argument is based on the premise that a convicted felon may be sympathetic toward a criminal defendant----”); Kalt, The exclusion of felons from jury service, 53 Am U L R 65, 74, 104 (2003) (“ ‘[A] person who has suffered the most severe form of condemnation that can be inflicted by the state... might well harbor a continuing resentment against “the system” that punished him and an equally unthinking bias in favor of the defendant on trial, who is seen as a fellow underdog caught in its toils.’... [A] felon’s ‘former conviction and imprisonment [may] ordinarily incline him to compassion for others accused of crime.’ In other words, a felon willhe less willing, if not unwilling altogether, to subject another person to the horrors of punishment that he has endured, and may engage in nullification. He may also exhibit mistrust of police and prosecutors, and give unduly short shrift to their testimony and arguments.”) (citations omitted); Note, Invaluable tool vs. unfair use of private information: Examining prosecutors ’ use of jurors ’ criminal history records in voir dire, 56 Wash & Lee L R 1079,1088-1089 (1999) (“A juror convicted of a crime is likely to harbor animosity towards the government.... The potential for this animosity to ripen into a bias against the government’s case increases when the crime underlying the juror’s conviction is similar to the crime for which the defendant stands charged.”).
To answer the dissent’s question, post at 580, of course convicted felons can be challenged by defendants for bias. However, a juror’s mere status as a convicted felon does not by itself establish bias, and, thus, the challenging defendant will have to come forth with some actual argument concerning such bias.
The dissent altogether ignores that none of those cases involved the application of MCL 600.1354(1).
In DeHaven, the jurors had a family member who was a convicted rapist and a family member who was a rape victim, while, in the instant case, the juror was himself convicted of assault with the intent to commit criminal sexual conduct. As DeHaven indicated, the “normal person revolts at the thought of a father or stepfather raping a 13-year-old girl.” DeHaven, 321 Mich at 334. Accordingly, in DeHaven, it is significantly more likely that the jurors, if anything, would have been prejudiced against the defendant because a 13-year-old girl in their family had recently been a victim of such a revolting crime. On the other hand, in the instant case, as discussed earlier, it is more likely that the juror, if anything, would have been prejudiced in favor of the defendant because the juror had himself been convicted of similar crimes, although obviously this is all speculative.
We are simply perplexed by the dissent’s assertion that the standard of review is “irrelevant.” Post at 573. An appellate court cannot even begin to review a trial court’s decision without knowing what the applicable standard of review is, and the fact that an appellate court has employed a plainly inappropriate standard should, at the least, cause future courts to hesitate before they rely on that prior decision. Further more, contrary to the dissent, an appellate court cannot effectively immunize itself from criticism for failing to apply the correct standard of review by simply not stating what standard of review is being applied.
As discussed earlier, a structural error that defies “harmless error” analysis still requires automatic reversal. Anderson, 446 Mich at 405.
The dissent criticizes us for not overruling DeHaven. However, we do not do so because we simply do not see it as being controlling with regard to the issue here.
To the extent that Crear and Manser relied on Daoust for this proposition, they are also wrong and overruled. The dissent contends that there is no reason to overrule these decisions because they can be “read harmoniously with § 1354(1) in that, if a juror is excusable for cause and is left impaneled, actual prejudice results.” Post at 574. However, as discussed in footnote 16 of this opinion, presuming prejudice on the basis of a statutory disqualification would render MCL 600.1354(1) meaningless. | [
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YOUNG, J.
These consolidated appeals concern a tax exemption that aims to improve Michigan’s environment by encouraging entities to reduce air pollution they create in Michigan. Based on the plain language of the statute, we hold that in order to for equipment to be exempt, it must be installed or acquired for the primary purpose of regulating or curbing the spread of pollution in Michigan. Further, the equipment must actually and physically limit pollution. None of the equipment that is the subject of this appeal meets these tests. Therefore, the Court of Appeals erred by partially overturning the decision of the Department of Environmental Quality (DEQ) and the State Tax Commission (STC) to that effect and holding that petitioners’ test cells qualify for the exemption. We reverse the Court of Appeals in part and restore the DEQ and STC decisions concluding that none of the equipment qualifies for the tax exemption.
FACTS AND PROCEDURAL HISTORY
The material facts in these consolidated appeals are undisputed. Pursuant to federal law, before issuing a certificate allowing for sales of new vehicles, the Environmental Protection Agency (EPA) must “test or require to be tested” new motor vehicles or new motor vehicle engines to ensure compliance with emission standards that the EPA promulgates. To that end, the agency has created a testing regime, requiring vehicle manufacturers to submit an application with an enormous amount of supporting data. Ford Motor Company, DaimlerChrysler Corporation, and Detroit Diesel (petitioners) installed test cells. The test cells are large buildings that can replicate many temperature conditions. They also house equipment that allows for up to 40 different types of tests and data collection. Petitioners’ test cells are used in the manufacturing process to ensure compliance with the regulations. In addition to its test cell, Detroit Diesel installed a new engine production line to meet federal emissions regulations.
All the petitioners sought tax exemptions from the STC under part 59 of the Natural Resources and Environmental Protection Act (NREPA) for their test cells, and Detroit Diesel also petitioned for an exemption for its engine line. Part 59 provides real and personal property tax exemptions, as well as sales and use tax exemptions for certain air pollution control facilities. The law requires that the STC refer applications to the DEQ. The DEQ concluded that none of petitioners’ equipment qualified for an exemption under part 59 because its primary purpose was not to reduce pollution, but to test products for compliance with federal emissions standards and to manufacture engines that comply with those standards. The DEQ also found that all the equipment actually generated some pollution during the testing or manufacturing processes, instead of physically disposing of air pollution or controlling it as the law requires. The STC agreed and denied all the exemptions. Petitioners appealed to various circuit courts. Ford’s four exemption denials were reversed, while denials for Daimler-Chrysler and Detroit Diesel were affirmed.
The Court of Appeals granted the appellate applications of all the aggrieved parties and consolidated the cases on appeal. Its published opinion held that tax exemptions must be issued for all petitioners’ test cells. The Court of Appeals concluded that the primary purpose of the test cells is to reduce pollution and that they need not physically or directly reduce pollution in order to qualify as tax-exempt. However, the Court of Appeals affirmed the denial of an exemption for Detroit Diesel’s engine manufacturing line on the ground that its primary purpose was engine manufacturing, not pollution reduction. The Court also held that no due process violation occurred during the STC’s consideration of Detroit Diesel’s application for a tax exemption. This Court granted leave to appeal.
STANDARD OF REVIEW
The Court reviews de novo motions for summary disposition. Issues of statutory construction are also reviewed de novo.
analysis
The primary issue on appeal is whether the Court of Appeals erred in its application of the tax exemption of part 59 of NREPA. As noted, the Court of Appeals reached different conclusions for the petitioners’ test cells and Detroit Diesel’s engine line. With regard to the test cells, the Court held:
[I]t is plainly apparent to us that the test cells were “installed or acquired for the primary purpose of controlling or disposing of air pollution” and that the test cells were designed and are operated “primarily for the control, capture, and removal of pollutants from the air, and [are] suitable, reasonably adequate, and meet[] the intent and purposes of part 55 ... .”[ ]
However, with regard to Detroit Diesel’s engine line, the Court reached the opposite conclusion, holding that “[c]learly, the engine line ... is not ‘operated primarily for the control, capture, and removal of pollutants from the air____’ ”
While the Court of Appeals quoted language from the proper statutory provisions, the Court did not offer a construction of that language. Instead, the Court held that it was plain and clear which equipment was eligible and which was not. As will be discussed later, the statutory provisions provide no principled basis for distinguishing between the different equipment involved in this appeal. Under the plain language of these provisions, neither the test cells nor the engine line qualifies for the exemption.
MCL 324.5901 defines “facility,” in part, as
machinery, equipment, structures, or any part or accessories of machinery, equipment, or structures, installed or acquired for the primary purpose of controlling or disposing of air pollution that if released would render the air harmful or inimical to the public health or to property within this state.
An exemption for a particular “facility” requires a determination by the DEQ that “the facility is designed and operated primarily for the control, capture, and removal of pollutants from the air, and is suitable, reasonably adequate, and meets the intent and purposes of part 55[ ] and rules promulgated under that part.”
Thus, the equipment must meet the requirements of both §§ 5901 and 5903 to qualify for the tax exemption. Section 590l’s definition of “facility” expressly requires that the equipment be “installed or acquired for the primary purpose of controlling or disposing of air pollution . . . .” “Control” means to “exercise restraint or direction over; dominate, regulate, or command; to hold in check; curb.” “Dispose of” means “a. to deal with conclusively; settle, b. to get rid of; discard or destroy.”
The primary purpose of this equipment is to build engines (Detroit Diesel) or test engines (petitioners’ test cells). The ancillary effect of the equipment is the control of pollution emitted by the engines. While the test cells help petitioners ensure that they are producing less polluting engines, the primary purpose of this equipment is not to regulate, curb the spread of, or destroy air pollution — and certainly not “pollution that if released would render the air harmful... to the public health or to property within this state” Instead, the primary purpose of the equipment is to test engines to ensure that petitioners have properly designed their engines to meet federal regulations so that they can sell them to consumers. Furthermore, the equipment itself does not get rid of or curb air pollution. Thus, petitioners’ test cells are not “facilities” as defined by MCL 324.5901.
Even assuming that petitioners’ federally required pollution equipment and Detroit Diesel’s engine line qualify as “facilities,” petitioners are still not entitled to an exemption because none of the equipment qualifies under § 5903. Under that section, the DEQ must find “that the facility is designed and operated primarily for the control, capture, and removal of pollutants from the air.” There are a number of terms in this provision that need to be defined to properly construe it. The focus of the section is on the “design” and the “operation” of the facility. “Design” means “to intend for a definite purpose,” while “operate” means “to work, perform, or function, as a machine does ... to bring about, effect, or produce, as by action or the exertion of force or influence.” Thus, the facility must be intended to and bring about “the control, capture, and removal of pollutants from the air.” “Control” has already been defined. “Capture” means “to gain control of or exert influence over,” and “remove” means “to move or shift from a place or position; to eliminate; do away with or put an end to.” Because the Legislature used the conjunction “and,” a qualifying facility must do all three things: curb, control, and eliminate pollution. Furthermore, the words suggest that the facility must actually and physically limit pollution. They do not stand for the proposition that the facility itself may contribute to the creation of a product that pollutes less than a similar product, which is what the equipment in this case does. Because the statutory language requires the facility to do the removing, controlling, and capturing of pollution, this equipment does not qualify.
The Court of Appeals held that the test cells qualified under § 5903 “because without the test cells, [petitioners] would not be able to ensure that their products are adequately controlling, capturing, and removing pollutants from the air as compared to earlier versions of their vehicles and engines.” This observation misses the mark. The fact that the federal government may require such pollution control testing equipment has nothing to do with its eligibility for a tax exemption under Michigan law. The dissent makes a similar ana lytic mistake, asserting that the test cells qualify because they “control” pollution “by regulating the emissions output” and “by curbing the levels of pollutants released into the air in the first place”; they “capture” pollution by “ensuring] that pollutants that would otherwise have been released into the atmosphere are never produced in the first place”; and they “remove” pollution “by preventing the pollutants from being created in the first place.” The problem with both of these analyses is that the test cells, much like Detroit Diesel’s engine line, are not the source of the removal, control, or capture of pollution as required by the exemption. The testing process both produces and releases pollution contrary to the requirements of the statute. The design of the engine, and the engine alone once put into manufacture and sold in a vehicle, accomplishes the removal, control, and capture of pollution because such an engine produces less pollution than other models. Without the changes to the design of the engine, the test cells would accomplish nothing. Because the statutory language requires the facility to do the removing, controlling, and capturing, and the test cells and the pollution testing equipment in the engine plant do not remove, control, or capture pollutants, this equipment does not qualify for the tax exemption. Furthermore, none of the pollution control created by redesigned engines tested by petitioners is intended to improve the quality of Michigan’s air. This fact does not trouble the Court of Appeals or the dissent, which must presume that our Legislature intended a gift from Michigan taxpayers to the nation by advancing national, rather than local, air quality goals.
Moreover, the Court of Appeals opinion does not directly address the requirement that a facility must “meet[] the intent and purposes of part 55” of NREPA. A review of the other provisions in part 55 leaves little question that part 55 regulates the construction and operation of sources of air pollution, and part 55 itself defines “source” as “a stationary source.” The dissent attempts to overcome this fact by focusing on the definition of “air pollution control equipment,” MCL 324.5501(c), arguing that because that definition is arguably broad enough to encompass petitioners’ test cells, the test cells must fall within the “intent and purposes of part 55.” The dissent’s analysis of the definition of “air pollution control equipment” must occur in a vacuum to reach its conclusion. The air pollution control equipment is only relevant to the control of pollution at “sources” and in “processes.” A “process” is defined as “an action, operation, or a series of actions or operations at a source that emits or has the potential to emit an air contaminant.” MCL 324.5501(p) (emphasis added). Therefore, the fact that, as the dissent argues, a test cell theoretically qualifies as “air pollution control equipment” is wholly irrelevant for purposes of part 55 because the test cell has no effect on air pollution at any source or in any process.
Part 55 provides for permitting, monitoring to ensure compliance, reporting, and imposing sanctions for violations. Notably, emissions from vessels and motor vehicles are covered in parts 61, 63, and 65. The inescapable conclusion is that part 55 serves to regulate air pollution from stationary sources, while air pollution from mobile sources is covered by other parts of NREPA. Nothing about the test cells affects air pollution from a stationary source; in fact, as stated, a test cell itself adds contaminants to the air in its location. If reduction of vehicle emissions qualifies as meeting the purpose of part 55, then the vehicles themselves would also qualify. Likewise, any auto repair shop could claim as exempt any equipment it installed to test motor vehicle exhaust for excess pollution.
The Court of Appeals and the dissent simply fail to give meaning to part 55. In so doing, they have broadly construed this tax statute, contrary to the rule of construction that exemptions be narrowly construed against the taxpayer; distorted the purpose of this tax statute; and awarded taxpayer money to business entities who fail to abate pollution in this state. In fact, the dissent actively conflates part 55 with the other parts of NREPA by concluding, “[a]s long as petitioners sell engines and vehicles in Michigan, thereby reducing harmful pollution in Michigan, the fact that they also sell engines and vehicles in other states, thereby reducing pollution in those states as well, does not prevent them from qualifying for the instant tax exemption.”
The two published opinions interpreting this part of NREPA support the conclusion that the exemption does not apply to petitioners’ equipment. In Meijer, Inc v State Tax Comm, the Court of Appeals held that a trash compactor and baler, which Meijer installed to replace an incinerator that polluted the air when burning trash from Meijer’s grocery stores, was eligible for the tax exemption under MCL 336.1 (the predecessor to MCL 324.5901). In the second case, Covert Twp Assessor v State Tax Comm this Court upheld the STC’s grant of a tax exemption to Consumers Power Company for a nuclear containment building at its nuclear power plant. Both of these cases concerned sources of pollution that would have been subject to the regulatory statutes of part 55.
This Court’s decision in Covert interpreted “primary purpose” to mean “the primary purpose served by the facility for which [the] exemption is sought.” While the equipment in Covert was installed pursuant to federal law, this Court stated that the “purpose served” need not “align with the motivation of” those installing the facilities. Nonetheless, the statute requires that the primary purpose be the control or disposal of air pollution. The equipment in Covert was installed to prevent the release of hazardous materials in the event of an accident at the petitioner’s nuclear facility in this state. Therefore, the primary purpose was the control of air pollution in the event of an accident. That primary purpose qualified the equipment for the tax exemption.
Similarly, the “facility” in Meijer, a compactor and baler, actually served the primary purpose of controlling pollution in Michigan. The Meijer petitioner installed the compactor and baler to replace its incinerator because the incinerator produced pollution in excess of the amount allowed under the law. The compactor and baler accomplished the same task as the incinerator while producing less pollution.
Contrary to the Court of Appeals conclusion, the test cells are not analogous to the compactor and baler because the test cells did not replace a more polluting testing process. As noted by the Meijer panel, “had no pollution problem existed, and appellee simply chose the method of waste disposal by compacting and baling in order to dispose of waste, it would be ineligible for tax exemption because the necessary element — primary pollution control purposes — would be lacking.” The facilities in the instant case were installed for the primary purpose of testing engines, which will theoretically produce less pollution than other engines once put into production. However, petitioners simply chose a method of testing. They did not install the test cells to replace a process that accomplishes the same task with more pollution. Thus, the Court of Appeals and the dissent erroneously relied on Meijer to conclude that ancillary equipment installed primarily for the purpose of testing other equipment also qualifies for the exemption.
The clear import of these cases and the statute is that the “facility” must reduce the air pollution caused by the operation of the petitioner’s Michigan site to qualify for the tax exemption. However, the dissent argues that the reduction of air pollution caused by the petitioner’s engine products — well after those products have left the petitioner’s control — can qualify the testing equipment used to manufacture those products for the exemption. This interpretation expands the exemption statute far beyond its plain meaning and contrary to any rationale that our Legislature entertained for affecting this state’s environment.
CONCLUSION
In denying DaimlerChrysler’s application for its Auburn Hills test cell, the DEQ listed the following “Non-Air Pollution Function(s) of Equipment”: “The testing of vehicles is one of the manufacturing steps that the applicant takes in researching, designing, manufacturing, testing, marketing and selling vehicles.” In the “comments” section, the DEQ states:
Testing vehicles at the Chrysler Technical Center actually generates and emits air contaminants. None of the requested equipment controls, capture [sic] or removes pollutants generated by the vehicle testing equipment. The applicant has not satisfied its burden of establishing that its described machinery, equipment, structures, or related accessories were installed or acquired and designed and operated to physically control, dispose, capture, and/or remove air pollutants from the air, that if released would render the air harmful, pursuant to the intent of Sections 5901 and 5903 of Part 59, as separate and distinct from apparent other purposes of measuring, recording and assessing data to determine if a product is fit for continued production or commercial sales, or for other research, manufacturing, marketing or sales purposes. The Department finds that the applicant has not established a primary purpose qualifying for a tax exemption under Part 59.[ ]
The DEQ properly applied §§ 5901 and 5903 and concluded that the test cells do not qualify for a tax exemption. Therefore, we reverse the Court of Appeals and reinstate the STC’s decision denying petitioners’ request for tax exemptions for their test cells. However, we affirm the Court of Appeals holding that the Detroit Diesel Equinox Line was not entitled to a tax exemption and that Detroit Diesel received due process.
Taylor, C.J., and Cavanagh, J., concurred with Young, J.
42 USC 7525(a)(1) and 7521.
See 40 CFR 86.1 et seq.
Narrative Statement attached to DaimlerChrysler Auburn Hills Application for Tax Exemption Certificate, July 14, 2003, pp 5-11. The Auburn Hills DaimlerChrysler test cell is similar to the test cells of the other petitioners. The individual specifications of each test cell do not control the disposition of this case. Therefore, this Auburn Hills DaimlerChrysler test cell summary can serve as a general example for purposes of analysis.
MCL 324.5901 et seq.
MCL 324.101 et seq.
Ford had previously applied for and received a tax exemption under part 59 for its Allen Park test cell facility in 2001. While the applications involved in the instant action were pending in 2004, DEQ notified Ford that it was requesting revocation of its exemption for the Allen Park facility because the facility did not meet the requirements of part 59. The STC rejected the revocation, though, concluding that an exemption certificate under part 59 cannot he revoked. That exemption dispute is not before the Court.
We agree with the Court of Appeals that the full hearing conducted by the STC satisfied Detroit Diesel’s due process rights.
480 Mich 880 (2007).
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006).
Ford Motor Co v State Tax Comm, 274 Mich App 108, 113; 732 NW2d 591 (2007) (alterations in Ford Motor).
Id. at 118.
MCL 324.5501 et seq.
MCL 324.5903 (emphasis added).
Webster’s Universal College Dictionary (1997).
Random House Webster’s College Dictionary (1997).
MCL 324.5901 (emphasis added). The dissent is correct that the statute does not require that the equipment “solely” control pollution in Michigan. However, this equipment does not control any pollution in Michigan. It is the engines and vehicles tested that emit less pollution. While those vehicles may be sold in Michigan and may emit less pollution than other vehicles sold in Michigan, the test cells and Detroit Diesel’s engine plant do not control any pollution in Michigan or any other state.
The dissent misconstrues this statement to argue that this interpretation would render any equipment required by a federal regulation ineligible for the exemption. Regardless of whether the federal government requires the installation of the pollution testing equipment, it is not a “facility” under this statute unless its primary purpose is pollution control or disposal. For example, in Covert Twp v State Tax Comm, 407 Mich 561; 287 NW2d 895 (1980), federal law required that the petitioner install a containment device at its nuclear facility. That equipment still qualified under the statute at issue because its primary purpose was to control pollution at the site in the case of an accident at the nuclear facility. The primary purpose of the test cells and Detroit Diesel’s engine plant is not control or disposal of pollution. Therefore, regardless of whether federal law or “philanthropy” motivated petitioners to install the test cells or the engine plant, they do not qualify for the exemption.
Random. House Webster’s College Dictionary (1997).
Id.
Ford Motor, supra at 114 (emphasis added).
Post at 255.
The dissent asserts that the purpose of that part is the prevention and abatement of air pollution. In addition to being overly simplistic, this interpretation, when applied to MCL 324.5903, violates the rule of statutory construction that the Court should not interpret a statute in a way that renders part of it nugatory or mere surplusage. Grimes v Dep’t of Transportation, 475 Mich 72, 89; 715 NW2d 275 (2006). MCL 324.5903 provides: “If the department finds that the facility is designed and operated primarily for the control, capture, and removal of pollutants from the air, and is suitable, reasonably adequate, and meets the intent and purposes of part 55 and rules promulgated under that part, the department shall notify the state tax commission, which shall issue a certificate.” Thus, the statute requires that the “facility” control, capture, and remove pollutants and meet the intent and purposes of part 55. If the dissent is correct that the “intent and purposes” of part 55 are simply the reduction of pollution, then that requirement adds nothing to the first requirement. However, our interpretation that the “intent and purposes” of part 55 are the reduction of pollution at stationary sources adds something to the first requirement, namely a specific source of pollution that is to be targeted.
MCL 324.5501(t). The dissent decries our effort to ascertain the intent and purposes of part 55 by considering the whole of part 55. The dissent would prefer to look at one sentence of § 5540 of part 55 that supports the dissent’s result to ascertain the intent and purposes of part 55.
The entirety of § 5540 is:
It is the purpose of this part to provide additional and cumulative remedies to prevent and abate air pollution. This part does not abridge or alter rights of action or remedies now or hereafter existing. This part or anything done by virtue of this part shall not be construed as estopping persons from the exercise of their respective rights to suppress nuisances or to prevent or abate air pollution. [MCL 324.5540.]
The clear import of this section is that part 55 provides additional remedies to the existing remedies for the prevention or control of air pollution, namely private nuisance suits or citizen suits under MCL 324.1701. This section does not stand for the idea that the intent and purposes of part 55 are to control air pollution in all its forms and from any source, as the dissent asserts.
The dissent misconstrues the import of this discussion of § 5540. Unlike the dissent, we do not believe that the “intent and purposes” of part 55 are contained solely in § 5540. Instead, as noted, we believe that the entirety of part 55 should be considered to determine its “intent and purposes.” Therefore, we think it is unnecessary “to explain how pollution-control facilities other than the test cells can provide ‘additional remedies’ that the test cells cannot.” Post at 258.
Similarly, the dissent has chosen the one subsection of MCL 324.5512(1) that references “models] of transportation” to bolster its conclusion that the test cells meet the intent and purposes of part 55. Unfortunately, most of the subsections of MCL 324.5512(1) deal with “stationary sources” in accordance with the “intent and purposes” of part 55. We are uncertain why the Legislature decided to confer rulemaking authority with regard to modes of transportation in part 55; however, we do not believe that this one subsection alters the fact that the “intent and purposes of part 55 and rules promulgated under that part” are to regulate air pollution from stationary sources. See Mich Admin Code, R 336.1101 et seq.
See Wexford Medical Group v City of Cadillac, 474 Mich 192, 207; 713 NW2d 734 (2006), and post at 248.
Post at 253 n 15.
66 Mich App 280; 238 NW2d 582 (1975).
407 Mich 561; 287 NW2d 895 (1980).
Id. at 580.
Id. at 580-581.
The dissent argues that under our interpretation of MCL 324.5901, the compactor and baler would not qualify as a facility because the equipment simply compresses or bales material. This argument misconstrues both our interpretation and the facts of Meijer. The Meijer petitioner had been disposing of its refuse with an incinerator that produced an abundance of pollution. As noted, the petitioner installed the compactor and baler for the primary purpose of controlling the air pollution produced by its refuse disposal system. Furthermore, when the compactor and baler were operated they actually “controlled, captured, and removed” pollutants at that site. The test cells simply do not perform these functions. Any reduction of pollution that is connected to the test cells is entirely contingent on the redesign and manufacture of the engines and vehicles that may be introduced for future sales across the country.
Meijer, supra at 285.
DEQ Tax Exemption Review, December 15, 2003. The DEQ reached the same conclusion with regard to the other petitioners’ test cells.
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PER CURIAM.
In this case, two juries convicted three defendants of multiple crimes related to the kidnapping and murder of Fate Washington. Defendant Robert L. King argues that the inculpatory statements of codefendant Marlon Scarber, admitted through the testimony of an acquaintance, violated the rules of evidence and King’s right of confrontation under People v Poole, 444 Mich 151; 506 NW2d 505 (1993). In lieu of granting leave to appeal, we hold that, insofar as Poole held that the admissibility of a codefendant’s nontestimonial hearsay statement is governed by both MRE 804(b)(3) and the Confrontation Clause of the United States Constitution, it is no longer good law. We nevertheless affirm the decision of the Court of Appeals because we conclude that the Court sufficiently addressed the issue of the statements’ admissibility under MRE 804(b)(3). We deny defendants’ applications for leave to appeal in all other respects.
I. FACTS AND PROCEDURAL HISTORY
The Court of Appeals summarized the facts of this case as follows:
The victim, Fate Washington, was sitting in the driver’s-side seat of his Ford Expedition on the street outside his house. He had just finished speaking with a neighbor when defendant Scarber and an unidentified man, both clad in black, approached the vehicle and forced Washington, at gunpoint, further into the vehicle. Both the neighbor and Washington’s adult son, who was near a window inside the house, witnessed the scene. Washington scuffled with the men long enough that the neighbor was able to run home, retrieve a handgun, and open fire on the vehicle from his front porch. The eyewitnesses verified that Scarber climbed into the driver’s seat while a second vehicle!,] driven by defendant King, rolled up and opened fire on the neighbor with an automatic rifle. Other witnesses confirmed that the tandem of vehicles sped off through the streets after the shots were fired. Soon afterward, defendant King forced Washington to make a series of calls demanding ransom in return for his life.
A former friend of Scarber’s and associate of [Taylor and King], Troy Ervin, provided a detailed account of events after Washington was taken captive. The group took Washington to a house owned by Ervin’s sister, and defendant King persuaded Ervin to trade cars with him for a while. When Ervin visited the house, he was initially denied access into the home. Scarber later called him and told him that he and the other defendants had kidnapped Washington and held him at the house. Scarber explained that Taylor had helped and that King had shot at the man’s defenders. Scarber also admitted that he almost blew himself up burning the man’s vehicle. This information was confirmed at trial by a witness who heard a large explosion that night and saw a vehicle, later identified as Washington’s Expedition, on fire outside her home. Ervin visited the house again and found Washington lying on the floor of a back room wearing nothing but a sheet. Taylor guarded the man with an automatic rifle like the one described by witnesses to Washington’s capture, and King was armed with a handgun like the one Scarber had used. While Ervin was there, he heard Taylor deny Washington’s request to use the phone again to make more ransom calls.
Ervin left, but returned again later after Scarber called and told him that King had shot Washington in the legs and he had bled to death. Ervin was agitated at finding that Washington was killed in his sister’s house, because it associated him with the murder. He saw the dead body in the back room, and then he went to the hardware store for King and purchased tools for burying the body. After he dropped off the tools, he was again called and informed that the group had buried the body in the back yard of the property. Ervin was again agitated at the use of his sister’s property, but Taylor assured him that the burial site was inconspicuously concealed by the doghouse and the body was secure under a layer of concrete. Searchers later found the body buried as Ervin described it. The body was found with two gunshot wounds, one through each leg.
Upon hearing that Ervin, who was not charged with a crime, had made a statement to police about Washington’s murder, defendant Scarber also decided to make a statement. Except for Scarber’s self-serving insistence that he participated in the crimes under duress and tried to care for Washington by bandaging his first gunshot wound and bringing him water, Scarber’s statement to police was remarkably consistent with Ervin’s. Scarber’s statement confirmed the details of a successful ransom recovery that involved a peculiar delivery method, a particular mailbox, and a relatively small amount of money and drugs. Scarber’s statement described defendant King as Washington’s killer, and explained that, before he shot Washington a second time, King expressed a frustrated lack of concern with Washington’s life and an unabashed willingness to kill him. Because the prosecutor wanted to place defendant Scarber’s statement into evidence, Scarber received a separate jury for the purpose, isolating defendant King’s and defendant Taylor’s jury from Scarber’s blame-shifting account of Washington’s captivity. [People v Taylor, unpublished opinion per curiam of the Court of Appeals, issued November 29, 2007 (Docket Nos. 273443, 273543, and 273955), at 2-3.]
A jury convicted King and Taylor of second-degree murder, MCL 750.317; first-degree felony murder, MCL 750.316(l)(b); kidnapping, MCL 750.349; and possession of a firearm during the commission of a felony, MCL 750.227b. It also convicted King of armed robbery, MCL 750.529, but acquitted Taylor of armed robbery. The trial court sentenced King to life imprisonment for the first-degree felony murder conviction, 25 to 80 years for the second-degree murder, armed robbery, and kidnapping convictions, and two years for the felony-firearm conviction. It sentenced Taylor to life imprisonment for the first-degree murder conviction, 25 to 80 years for the kidnapping conviction, and two years for the felony-firearm conviction.
A separate jury convicted defendant Scarber of first-degree premeditated murder, MCL 750.316(l)(a); felony murder; armed robbery; kidnapping; felony-firearm; and felon in possession of a firearm, MCL 750.224Í. The trial court sentenced him to life imprisonment for the premeditated murder conviction, 38 to 80 years for the armed robbery and kidnapping convictions, and two years for the felony-firearm conviction.
After consolidating defendants’ appeals, the Court of Appeals affirmed Scarber’s convictions and sentences, but set aside King’s second-degree murder and kidnapping convictions and Taylor’s kidnapping conviction on double jeopardy grounds. All three defendants sought leave to appeal in this Court.
Defendant King challenges the trial court’s admission, through Ervin’s testimony, of defendant Scarber’s statements to Ervin that (1) Scarber, King, and Taylor had kidnapped Washington and were holding him at the house owned by Ervin’s sister and that (2) King had shot Washington once in each leg, causing him to bleed to death. King argues before this Court, as he did before the Court of Appeals, that Scarber’s statements to Ervin were inadmissible hearsay and that the trial court erred in failing to consider their reliability before holding that the statements would not violate the Confrontation Clause. The Court of Appeals held that the rules of evidence did not preclude admission of the statements because they fell within the hearsay exception for statements against the declarant’s penal interest, MRE 804(b)(3). Taylor, supra at 5. It also held that the trial court’s failure to analyze the reliability of the statements was harmless because the statements bore sufficient indicia of reliability under the factors articulated in Poole, supra at 165, and they therefore did not violate King’s right of confrontation. Taylor, supra at 5-6.
We hold that the portion of Poole pertaining to the requirements of the Confrontation Clause is no longer good law because it was premised on Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980), which has been overruled by Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), and Davis v Washington, 547 US 813; 126 S Ct 2266; 165 L Ed 2d 224 (2006). Because the hearsay statements in this case were nontestimonial, they do not implicate the Confrontation Clause, Davis, supra at 821, and their admissibility is governed solely by MRE 804(b)(3). We never theless affirm the decision of the Court of Appeals on the basis of the Court’s determination that the statements were admissible under MRE 804(b)(3).
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” US Const, Am VI. This Court’s Confrontation Clause analysis in Poole was predicated on the Confrontation Clause analysis articulated by the United States Supreme Court in Roberts. In Roberts, the Court considered the relationship between the Confrontation Clause and the hearsay rule. It held that the Confrontation Clause limits the scope of admissible hearsay in two ways: first, it generally requires the prosecution to either produce the declarant or demonstrate that he is unavailable; second, it requires that the statement bear certain “indicia of reliability.” Id. at 65-66. The Court further held that “[reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id. at 66. Otherwise, the evidence is inadmissible “absent a showing of particularized guarantees of trustworthiness.” Id.
In Poole, this Court considered the admissibility of a declarant’s voluntary, out-of-court statement made to someone other than a police officer, implicating the declarant and the defendant in criminal activity. Id. at 153-154. It held that in order for such a statement to be admissible as substantive evidence against the defendants at trial, it must be admissible under both MRE 804(b)(3) and the Confrontation Clause. Id. at 157. After concluding that the statement was admissible under MRE 804(b)(3), the Court considered whether admission of the statement at issue violated the defendants’ right of confrontation. Id. at 162. Following a discussion of Roberts and Idaho v Wright, 497 US 805, 819, 822-823; 110 S Ct 3139; 111 L Ed 2d 638 (1990) (applying Roberts), this Court set forth guidelines for analyzing the reliability of a declarant’s out-of-court statement:
In evaluating whether a statement against penal interest that inculpates a person in addition to the declarant bears sufficient indicia of reliability to allow it to be admitted as substantive evidence against the other person, courts must evaluate the circumstances surrounding the making of the statement as well as its content.
The presence of the following factors would favor admission of such a statement: whether the statement was (1) voluntarily given, (2) made contemporaneously with the events referenced, (3) made to family, friends, colleagues, or confederates — that is, to someone to whom the declarant would likely speak the truth, and (4) uttered spontaneously at the initiation of the declarant and without prompting or inquiry by the listener.
On the other hand, the presence of the following factors would favor a finding of inadmissibility: whether the statement (1) was made to law enforcement officers or at the prompting or inquiry of the listener, (2) minimizes the role or responsibility of the declarant or shifts blame to the accomplice, (3) was made to avenge the declarant or to curry favor, and (4) whether the declarant had a motive to lie or distort the truth. [Poole, supra at 165.]
Applying these factors, the Poole Court concluded that the witness did not prompt the declarant to make the statement or inquire about events referenced in the statement. The statement did not minimize the declarant’s role in the attempted robbery or his responsibility for the murder, and was not made in order to shift blame to the defendants, avenge the declarant, or curry favor. Nor was there any indication that the declarant had a motive to lie. On that basis, the Court concluded that the statement and the circumstances under which it was made bore sufficient indicia of reliability to satisfy the requirements of the Confrontation Clause. Id. at 165-166.
The United States Supreme Court subsequently decided Crawford and Davis, which in combination overruled Roberts in its entirety. In Crawford, the Court overruled the Roberts “indicia of reliability” analysis where testimonial statements are concerned. It held that, “[w]here testimonial evidence is at issue,” “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, supra at 68. The Court declined to “spell out a comprehensive definition of ‘testimonial,’ ” but stated that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.
In Davis, the United States Supreme Court revisited the question of the application and requirements of the Confrontation Clause. It held that the clause only restricts the admissibility of testimonial statements because “[o]nly statements of this sort cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Id. at 821. While nontestimonial statements are subject to traditional rules limiting the admissibility of hearsay, they do not implicate the Confrontation Clause. Id. The Court considered the circumstances under which statements made during a police investigation were testimonial. It concluded that such “[statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. at 822. “They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id.
The overruling of Roberts by the United States Supreme Court in Crawford and Davis undermines the analytical underpinnings of this Court’s decision in Poole, which was entirely predicated on Roberts. Thus, the holding in Poole that a codefendant’s nontestimonial statement is governed by both MRE 804(b)(3) and the Confrontation Clause is no longer good law. Scarber’s statements to Ervin were nontestimonial because they were made informally to an acquaintance, not during a police interrogation or other formal proceeding, see Crawford, supra at 68, or under circumstances indicating that their “primary purpose” was to “establish or prove past events potentially relevant to later criminal prosecution,” Davis, supra at 822. Accordingly, the admissibility of the statements in this case is governed solely by MRE 804(b)(3). This Court’s MRE 804(b)(3) analysis in Poole remains valid, however, and provides the applicable standard for determining the admissibility of a codefendant’s statement under the hearsay exception for statements against a declarant’s penal interest. MRE 804(b)(3) provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
In Poole, this Court held:
[Wlhere, as here, the declarant’s inculpation of an accomplice is made in the context of a narrative of events, at the declarant’s initiative without any prompting or inquiry, that as a whole is clearly against the declarant’s penal interest and as such is reliable, the whole statement —including portions that inculpate another — is admissible as substantive evidence at trial pursuant to MRE 804(b)(3). [Poole, supra at 161.][ ]
In this case, Scarber made his first statement, implicating himself, King, and Taylor in the kidnapping, during a telephone conversation with Ervin on the day of the kidnapping. During another call to Ervin the following day, apparently shortly after Washington died, Scarber made the second statement impheating Kang alone in the shooting of Washington. Scarber did not make any self-inculpatory statements dining this call. The Court of Appeals concluded that both statements feh within the hearsay exception for statements against penal interest, stating that “because the statements at issue were provided in a narrative, both those portions that inculpated Scarber alone and those that inculpated his codefendants were admissible.” Taylor, supra at 5. Moreover, in discussing the admissibility of the second statement under the Confrontation Clause, the Court acknowledged that “it is arguable that defendant Scarber’s desire to disassociate himself from the murder provided him with a motive to he about the identity of the individual (perhaps Scarber himself) who actually shot Washington.” Id. at 6. The Court concluded, however, that the second statement was part of “a pattern of impugning communications” volunteered spontaneously and without reservation to a friend, not delivered to police, and “without any apparent secondary motivation other than the desire to maintain the benefits of the relationship’s confidence and trust — and according to the record, to brag.” Id. Accordingly, the Court concluded that “Scarber’s statements to Ervin constituted a ‘narrative of events,’ so the statements were admissible at trial in their entirety.” Id. Given these determinations, we are satisfied that the Court of Appeals sufficiently considered the issue of the statements’ admissibility under MRE 804(b)(3) and Poole, supra at 161, and affirm on that basis.
In all other respects, defendants’ applications for leave to appeal are denied, because we are not persuaded that the questions presented should be reviewed by this Court.
Taylor, C.J., and Weaver, Corrigan, Young, and MARKMAN, JJ., concurred.
Both were charged with first-degree premeditated murder, but the jury convicted them of the lesser offense of second-degree murder.
The trial court vacated Taylor’s second-degree murder conviction on double jeopardy grounds.
The trial court vacated Scarber’s felony-murder conviction on double jeopardy grounds and dismissed his felon in possession conviction without explanation.
The Court reasoned that King could not be convicted of both first-degree and second-degree murder of the same person. With respect to King’s kidnapping conviction, the Court ruled that either the kidnapping conviction or the armed robbery conviction was the predicate felony for the felony-murder conviction, so setting aside the kidnapping conviction meant that King would only receive one punishment for the kidnapping conviction (his sentence for felony murder), and then could be separately punished for armed robbery. The Court set aside Taylor’s kidnapping conviction using the same reasoning (the only difference is that Taylor was acquitted of armed robbery). Taylor, supra at 3-5. We note that because the Court of Appeals issued its opinion in this case before we issued our opinion in People v Ream, 481 Mich 223, 225; 750 NW2d 536 (2008) (holding that “convicting and sentencing a defendant for both felony murder and the predicate felony does not necessarily violate the ‘multiple punishments’ strand of the Double Jeopardy Clause”), the Court did not have the benefit of our holding in Ream when it decided this case.
As a codefendant, Scarber was not available to testify at trial.
Poole, supra at 161-162, explicitly relied on the commentary to FRE 804(b)(3), on which MRE 804(b)(3) is modeled. In Williamson v United States, 512 US 594, 600-601; 114 S Ct 2431; 129 L Ed 2d 476 (1994), the United States Supreme Court held that the federal rule “does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.” We note this development in federal law, but believe that the portion of Poole pertaining to MRE 804(b)(3) was correctly decided. See People v VanderVliet, 444 Mich 52, 60 n 7; 508 NW2d 114 (1993), amended on other grounds 445 Mich 1205 (1994) (noting that this Court finds commentary and caselaw on the federal rules of evidence helpful and, in some cases, persuasive). See also People v Beasley, 239 Mich App 548, 556; 609 NW2d 581 (2000). In Poole, we also suggested that “carry over” portions of a declarant’s statement — those that inculpate the defendant but are not directly against the declarant’s interest — might be admissible under a “catch-all” hearsay exception, which Michigan did not have at the time. Poole, supra at 159 n 11. Although the Michigan Rules of Evidence now contain such an exception, MRE 803(4), we do not address whether the statements at issue here are admissible under that exception because we conclude that they are admissible under MRE 804(b)(3). | [
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YOUNG, J.
In this case, we are asked to determine when a governmental employee is immune from liability for an intentional tort. ‘ We hold that MCL 691.1407(3) of the governmental tort liability act (GTLA), which explicitly maintains “the law of intentional torts as it existed before July 7, 1986,” grants immunity to governmental employees from intentional-tort liability to the extent allowed by the common law before July 7,1986. We therefore reaffirm and apply the test concerning intentional-tort immunity outlined in Ross v Consumers Power Co (On Rehearing). Under the Ross test, governmental employees enjoy qualified immunity for intentional torts. A governmental employee must raise governmental immunity as an affirmative defense and establish that (1) the employee’s challenged acts were undertaken during the course of employment and that the employee was acting, or reasonably believed he was acting, within the scope of his authority, (2) the acts Were undertaken in good faith, and (3) the acts were discretionary, rather than ministerial, in nature. Neither the trial court nor the Court of Appeals considered whether the governmental employee was entitled to governmental immunity under the test provided in Ross. Accordingly, we vacate the trial court’s order with respect to defendant, vacate the judgment of the Court of Appeals and remand to the trial court to apply the proper test.
I. FACTS AND PROCEDURAL HISTORY
Wayne County Sheriffs Deputy Christine Kelly (defendant) investigated prostitution and controlled substances offenses in the department’s “morality unit.” At the time of the incident giving rise to the present case, she had 10 years’ experience and had made more than 500 prostitution-related arrests. On February 11, 2004, she was conducting surveillance near the intersection of Woodward Avenue and Burlingame Street in the city of Detroit. Defendant claimed that plaintiff, Amanda Jean Odom, walked back and forth along Woodward while making eye contact with the drivers of cars passing by, a method used by prostitutes to attract the attention of potential customers. She observed plaintiff approach the driver’s side window of a car parked in a liquor store parking lot and then enter the back seat. The car drove to a nearby grocery store; plaintiff went inside for approximately five minutes and returned to the car, which then drove away.
After contacting her supervisor and calling for backup, defendant followed the car down Woodward Avenue and into a residential area. Detroit police officers stopped the car at a point that, as it turned out, was only two blocks from plaintiffs home. The officers drew their guns and ordered plaintiff and the two female passengers out of the vehicle. The women were all handcuffed and questioned.
Upon being stopped, plaintiff asserted her innocence. She explained that her friend had driven her home from her place of employment and showed that she was still wearing her work identification badge. She further explained that her friend had dropped her off at a bank and driven around the block. However, plaintiff explained that she could not enter the bank because the police were apparently stopping a robbery in progress. She looked north and south before sighting her friend’s car in a nearby parking lot. Plaintiff walked to the car, entered the back seat, and was driven to a grocery store, where she used the ATM and purchased some groceries.
After relating her version of events to the officers, plaintiff overheard one officer tell defendant, “Well it’s your call.” Defendant issued plaintiff a criminal citation for “Disorderly Conduct (Flagging) Impeding the Flow of Vehicular and Pedestrian Traffic” — an offense frequently associated with prostitution. Plaintiff claims that, when she objected to the citation, defendant became angry and told her to “fight it.”
Plaintiff was ordered to appear for arraignment one week later. When she appeared, however, the district court had no record of the citation. Plaintiff contacted both the Detroit Police Department and the Wayne County Sheriffs Department to determine the status of the charges against her. Upon learning that the record of plaintiffs citation had been lost, defendant issued a new citation and had the charges reinstated. When plaintiff appeared for arraignment a second time in June 2004, the court required her to attend an AIDS awareness class for sex offenders. The case was postponed several times between June and December 2004. The prosecution finally dismissed the charges on December 6, 2004, because of insufficient evidence. The dismissal order indicated that the parties stipulated to the existence of probable cause. Neither plaintiff nor her counsel signed the dismissal form, and plaintiff denies that she made such a stipulation.
Plaintiff filed suit against defendant, Wayne County, and the city of Detroit, alleging false imprisonment and malicious prosecution. The parties stipulated to the dismissal of the city of Detroit early in the proceedings. In their answer to plaintiffs complaint, defendant and Wayne County raised “individual immunity” and “governmental immunity,” respectively, as affirmative defenses. Following discovery, defendant and Wayne County also filed a joint motion for summary disposition based on governmental immunity, MCR 2.116(C)(7), and failure to create a genuine issue of material fact, MCR 2.116(C) (10). The trial court granted the county summary disposition on the basis of the governmental immunity conferred by MCL 691.1407Q).
The trial court denied defendant summary disposition. Although plaintiff alleged that defendant had committed the intentional torts of false imprisonment and malicious prosecution, the trial court concluded that plaintiff was proceeding under a gross negligence theory because she had not alleged “an intentional act” such as excessive force. The trial court presumably considered whether defendant was entitled to the immunity conferred by MCL 691.1407(2); however, it did not explicitly cite the statute. The court found that there remained factual questions regarding whether defendant had probable cause to arrest and prosecute plaintiff. The trial court indicated that these factual questions prevented it from determining whether defendant was entitled to immunity as a matter of law. The court thereby treated governmental immunity as an affirmative defense that could be proved at trial.
The Court of Appeals affirmed on other grounds. The Court of Appeals panel made no mention of subsection 3, analyzing only the requiréments of subsection 2. The panel held that plaintiff had indeed alleged intentional torts. Therefore, to be protected by governmental immunity, the challenged acts undertaken by defendant had to be “justified” or “objectively reasonable under the circumstances,” rather than not grossly negligent. The panel held that, given the conflicting evidence, whether defendant’s conduct was justified could not be decided as a matter of law.
Initially, this Court denied defendant’s application for leave to appeal. However, upon reconsideration, we determined that this area of the law had fallen into disarray and required clarification. We granted defendant’s application for leave to appeal and directed the parties to address the following issues:
(1) what is the proper interpretation of MCL 691.1407(3) (“[MCL 691.1407(2)] does not alter the law of intentional torts as it existed before July 7,1986.”); (2) can intentional torts claims be brought under MCL 691.1407(2); and (3) for an intentional tort claim, what must a plaintiff plead to avoid governmental immunity?[ ]
II. STANDARD OF REVIEW
We review de novo a trial court’s determination regarding a motion for summary disposition. Under MCR 2.116(C)(7), the moving party is entitled to summary disposition if the plaintiffs claims are “ ‘barred because of immunity granted by law ....’ ” The moving party may support its motion for summary disposition under MCR 2.116(C)(7) with “affidavits, depositions, admissions, or other documentary evidence,” the substance of which would be admissible at trial. “The contents of the complaint are accepted as true unless contradicted” by the evidence provided.
In relation to a motion under MCR 2.116(C)(10), we similarly review “the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.”
This decision also requires us to interpret the provisions of § 7 of the GTLA, MCL 691.1407. We review de novo questions of statutory interpretation. The primary goal of statutory interpretation is to discern the intent of the Legislature. “To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language. When the language of a statute is unambiguous, the Legislature’s intent is clear and judicial construction is neither necessary nor permitted.”
III. ANALYSIS
A. HISTORY OF THE GOVERNMENTAL TORT LIABILITY ACT
Historically, governmental immunity was a common-law doctrine. In 1961, however, this Court abolished common-law governmental immunity in Williams v Detroit. Although the Court almost immediately thereafter limited Williams and held that governmental immunity was abolished only in relation to municipalities, the Legislature reacted by enacting the first version of the GTLA in 1965. The statute restored governmental immunity for municipalities and provided “uniform treatment for state and local agen ties.” The statute did not address immunity for governmental officers or employees. Thus, governmental immunity for individuals continued to he completely “a creature of judicial decision-making.”
In 1984, Ross v Consumers Power Co (On Rehearing) comprehensively described the common-law test for individual governmental immunity from all tort liability. In Ross, judges, legislators, and the highest executive officials at all levels of government were given immunity from all tort liability when acting within the scope of their judicial, legislative, or executive authority. Lower-level governmental officials and employees were afforded qualified immunity from all tort liability if they met all the following conditions: (1) the acts were taken during the course of employment and the employees were acting, or reasonably believed that they were acting, within the scope of their authority, (2) the acts were taken in good faith, and (3) the acts were discretionary-decisional, as opposed to ministerial-operational.
The Legislature amended the GTLA in 1986 in response to Ross. Section 7 of the GTLA now confers qualified immunity to individual governmental actors as follows:
(2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or service or caused by the volunteer while acting on behalf of a governmental agency if all of the following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage.
(3) Subsection (2) does not alter the law of intentional torts as it existed before July 7, 1986.
(5) A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.
(7) As used in this section:
(a) “Gross negligence” means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.[ ]
B. INTERPRETATION OF SUBSECTIONS 2 AND 3
The Legislature codified Ross’s grant of absolute immunity to high-ranking officials in MCL 691.1407(5). In MCL 691.1407(2), the Legislature granted immunity to individual governmental actors “from tort liability” for injuries or damage caused by the employee. The Legislature eliminated the Ross distinction between discretionary and ministerial acts and granted qualified immunity for both types of actions. Subsection 2 gives immunity for acts taken “while in the course of employment or service” if (a) the employee “is acting or reasonably believes he or she is acting within the scope of his or her authority,” (b) the agency that the employee serves “is engaged in the exercise or discharge of a governmental function,” and (c) the employee’s “conduct does not amount to gross negligence that is the proximate cause of the injury or damage.” Accordingly, the Legislature replaced the Ross “good faith” element with a gross-negligence standard.
Subsection 2 purports to apply simply to “tort liability,” and, ironically, even though that subsection concerns only gross negligence, defendant argued for the first time at oral argument before this Court that the broad tort reference includes intentional torts. However, when read in context with subsection 3, it is clear that subsection 2 encompasses only negligent tort liability. In subsection 3, the Legislature unambiguously expressed its intent to maintain “the law of intentional torts as it existed before July 7, 1986. ”
Every provision of § 7 specifically and expressly prescribes the immunity from tort liability extended to governmental agencies and actors. In contrast, but not inconsistent with these provisions, subsection 3 indicates the Legislature’s intent to confer immunity on governmental employees for intentional torts to the same extent allowed under the common law as it existed before July 7, 1986. Thus, the Legislature thereby removed immunity for intentional tort liability from the statutory grant of immunity in subsection 2.
As will be discussed in more detail later, subsection 2 does alter the law of governmental immunity as it existed before the amendment of § 7 for negligent torts committed by lower-level government employees. Subsection 3 represents a deviation from the legislatively created governmental immunity scheme, but the deviation is limited to intentional torts. “[I]t is a settled rule of statutory construction that where a statute contains a specific statutory provision and a related, but more general, provision, the specific one controls.” Because subsection 3 more specifically addresses “intentional torts” and subsection 2 more broadly addresses “tort liability,” subsection 3 must control in this case.
We reject defendant’s interpretation of subsection 3 as merely reiterating that a governmental employee who does not satisfy the requirements of subsection 2 remains liable for an intentional tort. This interpretation is contrary to the rules of statutory construction in that it would render subsection 3 surplusage. A “reiteration,” by definition, creates surplus language. Moreover, defendant’s proposed interpretation of the statute necessarily assumes that the reference in subsection 2 to “tort liability” encompasses both intentional and negligent torts. If the Legislature had intended to reiterate that a governmental employee remains liable in tort when he fails to meet the standards of subsection 2, the language of subsection 3 would not have been specifically limited to “intentional torts.”
Furthermore, defendant’s interpretation cannot be sustained. As noted, subsection 2 alters the common-law test for governmental immunity. If subsection 2 had altered the common law in relation to all torts, the express terms of subsection 3 preserving “the law of intentional torts as it existed before July 7, 1986,” would be rendered a complete nullity. Thus, although subsection 2 abolished the Ross distinction between discretionary and ministerial acts and replaced the Ross “good faith” element with a gross-negligence standard, those alterations are limited to negligent torts because “[sjubsection (2) does not alter the law of intentional torts....”
C. TEST FOR IMMUNITY OUTLINED IN ROSS
The seminal pre-July 7, 1986, case defining the parameters of governmental immunity for individuals from tort liability is Ross v Consumers Power Co (On Rehearing). Over the years, substantial confusion has arisen regarding the proper interpretation of the Ross test for individual governmental immunity as it is applied to intentional torts. A number of cases have either misinterpreted or failed to mention Ross in holding that there is no intentional-tort exception to governmental immunity. We correct today this tangle of cases arising after the enactment of the current GTLA by following the legislative direction to apply the common law “as it existed before July 7, 1986. ” Ross comprehensively stated the common-law test in Michigan for individual governmental-employee immunity before the statutory date. Contrary to defendant’s position, Ross clearly provides governmental employees qualified immunity from intentional-tort liability at common law. We'take this opportunity to reaffirm and restate the Ross test.
Under Ross, to be immune from liability for intentional torts, the governmental employee must first establish that the acts were taken “during the course of. . . employment and” that the employee was “acting, or reasonably believe[d] [he was] acting, within the scope of [his] authority[.]” This requirement ensures that a governmental employee will not be afforded immunity when committing ultra vires acts, as these are outside the scope of the employee’s authority. However, it also protects a governmental employee who reasonably believes that he was authorized to take certain actions, but later learns that he was mistaken.
The governmental employee must also establish that he was acting in “good faith.” Ross did not elaborate on this element, relying instead on Prosser on Torts and the cases cited therein. Prosser noted that the “considerable majority of the state courts take the position that there is no immunity where the inferior officer does not act honestly and in good faith, but maliciously, or for an improper purpose.” “[0]fficial immunity should not become a cloak for malicious, corrupt, and otherwise outrageous conduct on the part of those guilty of intentional abuse of power ... .” The cases cited by Prosser indicate that there is no immunity when the governmental employee acts maliciously or with a wanton or reckless disregard of the rights of another
This standard is also consistent with prior Michigan caselaw. In Armstrong v Ross Twp, the Court of Appeals described good faith simply as acting without malice. In Blackman v Cooper, the Court of Appeals held that a police officer is entitled to immunity when he is “acting in good faith with probable cause ... even though the arrest is subsequently found to be baseless.” In Dickey v Fluhart, the Court of Appeals held that an “action may lie only if the officer has utilized wanton or malicious conduct or demonstrated a reckless indifference to the common dictates of humanity.”
This Court has described a lack of good faith as “malicious intent, capricious action or corrupt conduct” or “willful and corrupt misconduct. . . .” In Firestone v Rice in which the plaintiff brought an action for false imprisonment and assault and battery against a police officer for handcuffing him, the Court held:
There must be some discretion reposed in a sheriff or other officer, making an arrest for felony, as to the means taken to apprehend the supposed offender, and to keep him safe and secure after such apprehension. And this discretion cannot be passed upon by a court or jury unless it has been abused through malice or wantonness or a reckless indifference to the common dictates of humanity.
In addition, this Court has held that “willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.” Similarly, our standard civil jury instructions define “willful misconduct” as “conduct or a failure to act that was intended to harm the plaintiff” and “wanton misconduct” as “conduct or a failure to act that shows such indifference to whether harm will result as to be equal to a willingness that harm will result.” These instructions are consistent with the negation of the common-law definition of “good faith” and can be a useful guide for a trial court considering a defendant’s motion for summary disposition based on individual governmental immunity. Thus, the proponent of individual immunity must establish that he acted without malice.
The final Ross element to be considered when determining whether an individual is entitled to governmental immunity is whether the challenged “act” was ministerial or discretionary in nature. As explained in Ross, “ ‘A ministerial officer has a line of conduct marked out for him, and has nothing to do but to follow it; and he must be held liable for any failure to do so which results in the injury of another.’ ” Ministerial acts “constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice.” The execution of an act once a decision has been made is also ministerial in nature. “Discretion,” on the other hand, “ ‘implies the right to be wrong.’ ” Discretionary acts “require personal deliberation, decision and judgment.” Although the decision need not be extraordinary, governmental immunity is not afforded for “every trivial decision” an actor may make. Granting immunity to an employee engaged in discretionary acts allows the employee to resolve problems without constant fear of legal repercussions.
Police officers perform many discretionary acts each day. An officer must use his judgment to determine whether there is reasonable suspicion to investigate or probable cause to arrest and to determine the amount of force necessary to effectuate an arrest. A police officer similarly conducts many ministerial acts each day, such as completing activity logs and police reports or following the procedures for booking an arrested person.
D. BURDEN OF PROOF
The parties dispute who bears the burden of proof with regard to governmental immunity: whether the plaintiff must plead in avoidance of immunity in the complaint or whether the defendant must raise immunity as an affirmative defense.
The doctrine of “sovereign immunity” dates back to the English common law. While England was ruled by an absolute monarch, English law settled that the king was the law and, therefore, could not violate the law. Moreover, it was deemed “a contradiction of [the king’s] sovereignty to allow him to be sued as of right in his own courts.” Governmental immunity for individuals began as an extension of the sovereign immunity given the king. It was employed to protect from liability “the servants who were carrying out [the king’s] commands.” However, when England began to function under a parliamentary government, English common-law immunity doctrines fundamentally changed. Although the king continued to be protected by sovereign immunity, the king’s agents were held liable for their wrongs, and the wrongs of the king that were imputed to them.
American courts adopted the concept of sovereign, or “governmental,” immunity to protect from liability the sovereign state governments (and state agencies as integral parts of the state). A central tenet of this sovereign or governmental immunity is that the state may be held liable in a court of law only when the state has expressly permitted a suit against it. Under the GTLA, the state maintains its immunity when “engaged in the exercise or discharge of a governmental function” unless the plaintiff establishes the existence of a statutorily created exception to that immunity.
Sovereign immunity as it applied to the king in English common law and statutorily created governmental immunity that is currently applicable to the state as a sovereign government are “characteristic[s] of government.” As such, this immunity protects the state not only from liability, but also from the great public expense of having to contest a trial. A plaintiff filing suit against a governmental agency must initially plead his claims in avoidance of governmental immunity. Placing this burden on the plaintiff relieves the government of the expense of discovery and trial in many cases.
Over time, governmental immunity for individuals evolved into an affirmative defense under the common law and thus was differentiated from the immunity given to the sovereign. In the GTLA, the Legislature has not abrogated the common law by shifting the burden of proof with regard to governmental immunity for individuals. Accordingly, the burden continues to fall on the governmental employee to raise and prove his entitlement to immunity as an affirmative defense.
E. SUMMARY OF THE TEST FOR INDIVIDUAL GOVERNMENTAL IMMUNITY
To summarize and simplify the application of our decision, we provide these steps to follow when a defendant raises the affirmative defense of individual governmental immunity. The court must do the following:
(1) Determine whether the individual is a judge, a legislator, or the highest-ranking appointed executive official at any level of government who is entitled to absolute immunity under MCL 691.1407(5).
(2) If the individual is a lower-ranking governmental employee or official, determine whether the plaintiff pleaded an intentional or a negligent tort.
(3) If the plaintiff pleaded a negligent tort, proceed under MCL 691.1407(2) and determine if the individual caused an injury or damage while acting in the course of employment or service or on behalf of his governmental employer and whether:
(a) the individual was acting or reasonably believed that he was acting within the scope of his authority,
(b) the governmental agency was engaged in the exercise or discharge of a governmental function, and
(c) the individual’s conduct amounted to gross negligence that was the proximate cause of the injury or damage.
(4) If the plaintiff pleaded an intentional tort, determine whether the defendant established that he is entitled to individual governmental immunity under the Ross test by showing the following:
(a) The acts were undertaken during the course of employment and the employee was acting, or reasonably believed that he was acting, within the scope of his authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice, and
(c) the acts were discretionary, as opposed to ministerial.
IV APPLICATION OF THE ROSS TEST TO THIS CURRENT CASE
Following the guidelines set forth in this opinion, we first note that defendant indisputably is a lower-level government employee not entitled to the absolute immunity provided by MCL 691.1407(5).
It is equally clear that plaintiff pleaded intentional, rather than negligent, torts. Plaintiff asserted claims of false imprisonment and malicious prosecution, both of which contain intent as an element. Contrary to the trial court’s opinion, a plaintiff need not plead a forceful or physical act, such as use of excessive force, but must plead only an intentional act.
As plaintiff pleaded the occurrence of intentional torts, the trial court was required to determine whether defendant was entitled to governmental immunity as provided by the common law before July 7, 1986. Defendant timely raised governmental immunity as an affirmative defense in her first responsive pleading, as well as raising it in her motion for summary disposition. To be entitled to governmental immunity, defendant must establish that she was acting in the course of her employment and at least reasonably believed that she was acting within the scope of her authority, that her actions were discretionary in nature, and that she acted in good faith.
Because it used the wrong legal standard, the trial court did not address these questions, finding only that there remained a question of fact whether defendant lacked probable cause to detain or arrest plaintiff. The mere existence of probable cause, however, is not the proper inquiry. A police officer would be entitled to immunity under Ross if he acted in good faith and honestly believed that he had probable cause to arrest, even if he later learned that he was mistaken. Yet the existence of probable cause is relevant to the analysis; a claim of false arrest or false imprisonment cannot be sustained if the arrest was legal.
The Court of Appeals held that there remained a question of fact whether defendant’s conduct was justified and “objectively reasonable.” This objective analysis is also not the proper Ross inquiry. The good- faith element of the Ross test is subjective in nature. It protects a defendant’s honest belief and good-faith conduct with the cloak of immunity while exposing to liability a defendant who acts with malicious intent.
On remand, the trial court must reconsider defendant’s motion for summary disposition in light of the Ross test and determine if defendant adequately supported her claim of governmental immunity.
V CONCLUSION
The trial court erroneously determined that plaintiffs claims sounded in gross negligence and, therefore, analyzed defendant’s motion for summary disposition based on governmental immunity under MCL 691.1407(2). Plaintiff pleaded claims of intentional torts, and defendant was required to establish that she was entitled to governmental immunity pursuant to Ross, as required by MCL 691.1407(3). The trial court’s analysis was erroneous because it focused solely on the potential lack of probable cause to arrest and detain plaintiff, contrary to the requirements of Ross. The Court of Appeals recognized that plaintiffs claims sounded in intentional tort, but analyzed defendant’s right to immunity under subsection 2, which applies only to negligent torts. On remand, the trial court must determine whether defendant had a good-faith belief that she possessed probable cause to detain plaintiff before ruling on defendant’s motion for summary disposition based on governmental immunity.
Because of the errors committed below, we vacate the trial court’s order with respect to defendant, vacate the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Taylor, C.J., and Weaver, Corrigan, and Markman, JJ., concurred with YOUNG, J.
CAVANAGH and KELLY, JJ. We concur in the result only.
420 Mich 567; 363 NW2d 641 (1984).
Defendant asserted that it is not uncommon for a prostitute to go into a store for a short time to purchase alcohol or condoms and return to the customer’s car.
There was also a three-year-old child in the car.
Defendant claimed that her suspicions of plaintiff were not alleviated by the fact that the vehicle’s occupants were all female. Defendant -testified in her deposition that prostitutes often work in teams from a car and drive each other to and from “work.” Defendant also explained that females may solicit a prostitute to purchase controlled substances on their behalf.
The motion for summary disposition also refers to MCR 2.116(C)(8); however, defendant made no arguments based on that rule. Moreover, in a subsequent motion for clarification of the trial court’s order, defendant asserted that she sought summary disposition under (C)(7) and (10) and did not mention (C)(8).
Subsection 1 provides immunity to governmental agencies when conducting governmental functions. It is well established that “the management, operation, and control of a police department is a governmental function.” Mack v Detroit, 467 Mich 186, 204; 649 NW2d 47 (2002).
Odom v Wayne Co, unpublished opinion per curiam of the Court of Appeals, issued February 1, 2007 (Docket No. 270501), p 2.
Id. at 2-3; citing VanVorous v Burmeister, 262 Mich App 467, 480; 687 NW2d 132 (2004), Sudul v Hamtramck, 221 Mich App 455, 458; 562 NW2d 478 (1997), and Brewer v Perrin, 132 Mich App 520, 528; 349 NW2d 198 (1984).
Odom, unpublished opinion per curiam at 3.
Odom v Wayne Co, 480 Mich 1015 (2008).
Odom v Wayne Co, 480 Mich 1184 (2008).
Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998) (citation omitted).
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999); see also MCR 2.116(G).
Maiden, 461 Mich at 119.
Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007).
Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004).
Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001).
Lash v Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007).
364 Mich 231; 111 NW2d 1 (1961).
McDowell v State Hwy Comm’r, 365 Mich 268; 112 NW2d 491 (1961).
Ross, 420 Mich at 606.
Id. at 629.
Id. at 633.
Id. at 633-634.
MCL 691.1407.
MCL 691.1407(3) (emphasis added).
In re Haley, 476 Mich 180, 198; 720 NW2d 246 (2006), citing Gebhardt v O’Rourke, 444 Mich 535, 542-453; 510 NW2d 900 (1994).
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 470; 719 NW2d 19 (2006) (“[W]e interpret every word, phrase, and clause in a statute to avoid rendering any portion of the statute nugatory or surplusage.”).
Random House Webster’s College Dictionary (1997) defines “reiterate” as “to say or do again or repeatedly; repeat, often excessively,” and “surplusage” as “an excess of words, [especially] in pleading a case.”
MCL 691.1407(3).
See, e.g., Marrocco v Randlett, 431 Mich 700, 707-708; 433 NW2d 68 (1988); Smith v Dep’t of Pub Health, 428 Mich 540, 544; 410 NW2d 749 (1987). These cases are distinguishable from the current case because they involved high-level executive officials who were extended absolute immunity for conduct undertaken within their executive authority and governmental agencies, respectively, rather than individual governmental employees.
MCL 691.1407(3).
Cases holding that governmental employees are protected by more or less than the qualified immunity for intentional-tort liability provided in Ross are overruled to the extent that such cases are inconsistent with Ross.
Ross, 420 Mich at 633.
Id. at 631.
Id. at 633 n 41.
Id. at 632.
Prosser, Torts (4th ed), § 132, p 989.
Id.
See id. at 987-990.
82 Mich App 77, 85-86; 266 NW2d 674 (1978).
89 Mich App 639, 643; 280 NW2d 260 (1979).
146 Mich App 268, 276; 380 NW2d 76 (1985).
Veldman v Grand Rapids, 275 Mich 100, 113; 265 NW 790 (1936).
Amperse v Winslow, 75 Mich 234, 245; 42 NW 823 (1889).
71 Mich 377, 384; 38 NW 885 (1888) (emphasis added).
Burnett v City of Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982).
M Civ JI 14.12.
M Civ JI 14.11.
Ross, 420 Mich at 626, quoting Wall v Trumbull, 16 Mich 228, 235 (1867).
Ross, 420 Mich at 634.
Id. at 634-635.
Id. at 628, quoting Williams, 364 Mich at 261 (opinion by Edwards, J.).
Ross, 420 Mich at 634, citing Prosser, § 132, p 988.
Ross, 420 Mich at 634.
We again note that the elimination in MCL 691.1407(2) of the distinction between ministerial and discretionary acts does not apply to individual immunity from intentional tort liability, which is provided in subsection 3 of the statute.
Prosser, § 131, pp 970; see also 4 Restatement Torts, 2d, ch 45A, p 394.
4 Restatement, §895D, comment a, p 411.
See Prosser, § 131, p 971; 4 Restatement, § 895D, comment a, pp 411-412.
Prosser, § 131, pp 971, 975-976; 4 Restatement, § 895B and comment a, pp 399-401.
MCL 691.1407(1).
The statutory exceptions to the governmental immunity provided to the state and its agencies are the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the public-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and the sewage-disposal-system-event exception, MCL 691.1417(2) and (3). Wesche v Mecosta Co Rd Comm, 480 Mich 75, 84 n 10; 746 NW2d 847 (2008).
Mack, 467 Mich at 198, citing (among other cases) Canon v Thumudo, 430 Mich 326, 344 n 10; 422 NW2d 688 (1988), Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 261 n 35; 393 NW2d 847 (1986), Ross, 420 Mich at 621 n 34, and McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976). The only case holding otherwise was McCummings v Hurley Med Ctr, 433 Mich 404; 446 NW2d 114 (1989). McCummings was an aberration, which this Court overruled in Mack.
Mack, 467 Mich at 203 n 18; Walsh v Taylor, 263 Mich App 618, 624; 689 NW2d 506 (2004). We note that the expense to the state government and to the public can be just as great in a suit filed against a governmental employee. MCL 691.1408(1) provides that, in a civil action against a governmental employee, the government “may pay for, engage, or furnish the services of an attorney,” “may compromise, settle, and pay the claim” before trial, and “may indemnify the officer, employee, or volunteer or pay, settle, or compromise the judgment” following a trial. In light of this statute, it seems inconsistent to characterize sovereign or governmental immunity as a characteristic of government that the plaintiff must avoid in his pleading as an element of the claim and individual governmental immunity as an affirmative defense. However, the Legislature indicated that “[t]his section does not impose liability on a governmental agency,” MCL 691.1408(3), thereby expressing its intent not to transform the state’s debt on behalf of an employee into something that can be protected by its sovereign or governmental immunity.
Mack, 467 Mich at 198 n 15, quoting Canon, 430 Mich at 344 n 10.
Mack, 467 Mich at 198 n 15; see also MCR 2.111(F)(3)(a).
See Lewis v Farmer Jack Div, Inc, 415 Mich 212; 327 NW2d 893 (1982).
See Prosser, § 132, p 989 nn 95-96, and the cases cited therein; see also Blackman, 89 Mich App at 643.
Lewis, 415 Mich at 218 n 2.
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McCormack, J.
In this case, we consider whether the Court of Appeals correctly reversed defendant’s conviction and remanded for a new trial. It did so on the grounds that the circuit court erred by admitting hearsay testimony on the theory that defendant’s conduct amounted to forfeiture by wrongdoing under the Michigan Rules of Evidence. We agree that the circuit court erred by admitting the challenged statements, because the prosecution failed to demonstrate that defendant had the specific intent to, and in fact did, cause the unavailability of the declarant as a witness. Accordingly, we affirm the Court of Appeals judgment.
On August 18, 2010, a bible school teacher (Gonzales) filed a police report concerning disclosures made to her the day before by a four-year-old girl (CB). The disclosures suggested that CB had been sexually abused by defendant, her father. Defendant promptly moved out of the home he shared with CB and her mother. Defendant was arrested on September 2, 2010, and he had no further contact with CB.
After the initial disclosure to Gonzales, CB was interviewed twice, first by a forensic interviewer on September 1, 2010, and later by a sexual-assault nurse examiner. In both interviews CB indicated that defendant had engaged in sexual conduct with her. A medical examination did not find evidence of sexual intercourse.
CB did not testify at the preliminary examination. Nevertheless, defendant was bound over to circuit court. At trial, the court permitted Gonzales to testify to CB’s out-of-court statements concerning the suspected abuse before CB testified. Gonzales testified that CB had told her that “Dave Junior” hurt her by licking and digitally penetrating her “butt.” After Gonzales testified, the prosecutor attempted to elicit testimony from CB four times. All four attempts were unsuccessful. CB left the witness chair, hid under the podium, refused to answer questions asked by the prosecutor, indicated that she would not tell the truth, stated that she was fearful of the jury, and expressed a desire to leave the courtroom.
The trial court then held a hearing to determine whether there was a separate basis for admitting Gonzales’s conditionally admitted testimony, because MRE 803A required CB to testify. The prosecutor argued, and the court agreed, that defendant had rendered CB unavailable to testify through his own wrongdoing, and the court admitted Gonzales’s testimony under MRE 804(b)(6). The trial court based its ruling on a video recording of CB’s interview with the forensic interviewer: When asked if defendant had said anything during the alleged abuse, CB stated that defendant told her “not to tell,” and that “[defendant] didn’t want me to tell nobody” or else she would “get in trouble.” The trial court determined that defendant’s instructions, as recounted by CB, were sufficient to find forfeiture by wrongdoing.
The trial court also determined that CB was unavailable to testify, a condition for admissibility under MRE 804(b)(6), “because, among other things, of her infirmity, her youth, to be able to testify here in court and the fear, frankly, that she has of testifying here in court.”
Having found Gonzales’s testimony admissible under MRE 804(b)(6), the trial court also concluded that defendant had forfeited his confrontation right. The court admitted the testimony of the sexual-assault nurse examiner and the transcript and video recording of CB’s forensic interview with the forensic interviewer. CB never testified. There was no other evidence of the abuse apart from the hearsay testimony. Defendant testified that he did not abuse CB.
The jury convicted defendant of first-degree criminal sexual conduct, MCL 750.520b. The Court of Appeals reversed in an unpublished opinion per cu-riam, concluding that the circuit court erred in its application of the forfeiture-by-wrongdoing analysis. The Court of Appeals concluded that the prosecutor had failed to establish by a preponderance of the evidence that defendant had both the specific intent to cause CB’s unavailability, and that the wrongdoing did, in fact, cause CB’s unavailability. We granted leave to appeal.
II. STANDARD OF REVIEW
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. Preliminary questions of law, including whether a rule of evidence precludes the admission of evidence, are reviewed de novo. Likewise, interpretation of a court rule is a question of law that we review de novo. A preserved error in the admission of evidence does not warrant reversal unless “ ‘after an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was outcome determinative.”
III. LEGAL BACKGROUND
A defendant can forfeit his right to exclude hearsay by his own wrongdoing. MRE 804(b)(6) provides that a statement is not excluded by the general rule against hearsay if the declarant is unavailable, and the “statement [is] offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” This rule, commonly known as the forfeiture- by-wrongdoing rule, was adopted in 2001 and is substantially similar to its federal counterpart, FRE 804(b)(6).
As the United States Supreme Court explained in Giles, forfeiture by wrongdoing has its roots in the common law, and is based on the maxim that “no one should be permitted to take advantage of his wrong.” The forfeiture doctrine not only provides a basis for an exception to the rule against hearsay; it is also an exception to a defendant’s constitutional confrontation right. Insofar as it applies to the Sixth Amendment, however, the forfeiture doctrine requires that the defendant must have specifically intended that his wrongdoing would render the witness unavailable to testify.
In Giles, the defendant was convicted of murder in the death of his ex-girlfriend. He testified that he had killed her in self-defense. The prosecution introduced statements the victim had made to police officers several weeks before the homicide, in which she described a death threat the defendant made to her. The California Supreme Court determined that the statements were testimonial, but that defendant had forfeited his right to confront the victim because he had committed the murder for which he was on trial, and because his intentional criminal act had caused the victim to be unavailable to testify. The United States Supreme Court reversed, holding that for a defendant to forfeit his confrontation right by his or her wrongdoing, the defendant must have had “in mind the particular purpose of making the witness unavailable.”
Since its adoption in 2001, only two published Michigan appellate cases have discussed the application of Michigan’s forfeiture rule, MRE 804(b)(6). Both preceded Giles. In People v Bauder, the Court of Appeals discussed MRE 804(b)(6) but did not address its proper application. There, the defendant argued that his confrontation right had been violated when the trial court admitted hearsay testimony. The Court of Appeals ultimately determined that the challenged statements were nontestimonial and properly admitted as statements of a then-existing mental condition under MRE 803(3). Yet in discussing the forfeiture issue, the Bauder Court rejected the defendant’s argument that forfeiture by wrongdoing for purposes of the Confrontation Clause required a showing of intent. That approach was rejected by the United States Supreme Court in Giles.
The Court of Appeals has specifically addressed forfeiture by wrongdoing more recently in People v Jones. There, the Court of Appeals held that to admit hearsay under the forfeiture doctrine, the prosecution was required to prove: “(1) that the defendant engaged in or encouraged wrongdoing; (2) that the wrongdoing was intended to procure the declarant’s unavailability; and (3) that the wrongdoing did procure the unavailability.” The Jones Court further held that the preponderance of the evidence standard applied, consistent with a majority of the federal circuit courts. While Jones preceded Giles, its application of forfeiture by wrongdoing as incorporating a specific intent element is consistent with Giles. We agree with the Jones Court that MRE 804(b)(6) incorporates a specific intent requirement. For the rule to apply, a defendant must have “engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.”
We note that the Court of Appeals explicitly avoided defendant’s Confrontation Clause claim in this case in recognition of our constitutional avoidance doctrine. It is nonetheless readily apparent that evidence offered under the forfeiture exception will very regularly be testimonial and subject to Sixth Amendment scrutiny. As forfeiture by wrongdoing is the only recognized exception to the Sixth Amendment’s guarantee of the right to cross-examine adverse witnesses, the constitutional question will often go hand-in-hand with the evidentiary question, as it did in the trial court here.
Because the forfeiture doctrine can provide both an exception to the general rule against hearsay and an exception to the confrontation right, the United States Constitution does not prevent the states from crafting a forfeiture-by-wrongdoing exception for nontestimonial hearsay that does not require any proof of a defendant’s specific intent. But the plain language of our court rule in fact incorporates the specific intent requirement at issue in Giles.
IV ANALYSIS
To admit evidence under MRE 804(b)(6), the prosecution must show by a preponderance of the evidence that: (1) the defendant engaged in or encouraged wrongdoing; (2) the wrongdoing was intended to procure the declarant’s unavailability; and (3) the wrongdoing did procure the unavailability. For purposes of our inquiry, we assume that the trial court correctly found that defendant did, in fact, engage in wrongdoing.
Turning to the second element, it is also alleged that during the alleged abuse defendant instructed CB “not to tell” anyone and warned her that if she told, she would “get in trouble.” The question is whether these threats, made contemporaneously with the abuse but before any report or investigation, require a finding that defendant “intended to ... procure the unavailability of [CB] as a witness.” The prosecution concedes that, the trial court did not make a specific finding with regard to defendant’s intent. Rather, it asks this Court to hold that the necessary finding was implicit in the trial court’s evidentiary ruling, and is compelled by the record. We are not persuaded.
Even if the record were to support an express finding that the trial court never made, the record does not compel that finding. Defendant immediately left the family home after Gonzales reported the suspected abuse. He had no contact with CB whatsoever once the conduct was reported, and nobody else attempted on his behalf to influence CB not to testify. There is no evidence or allegation that defendant attempted to influence CB directly or indirectly apart from the contemporaneous statements at issue.
The timing of defendant’s alleged wrongdoing is also relevant to our conclusion that the record does not compel a finding that defendant had the specific intent to procure CB’s unavailability. Defendant’s instruction to CB not to report the abuse was made before there was any indication that the abuse had been reported or discovered. While the timing of the wrongdoing is by itself not determinative, it can inform the inquiry: a defendant’s wrongdoing after the underlying criminal activity has been reported or discovered is inherently more suspect, and can give rise to a strong inference of intent to cause a declarant’s unavailability.
Without the guidance of an explicit trial court finding to shed light on the record, defendant’s contemporaneous statements to CB are as consistent with the inference that defendant’s intention was that the alleged abuse go undiscovered as they are with an inference that defendant specifically intended to prevent CB from testifying. Further, assuming defendant knew that CB would not disclose the abuse because of his directive, that knowledge is not necessarily the equivalent of the specific intent to cause CB’s unavailability to testify as required by MRE 804(b)(6). Attempting to equate the two in every circumstance improperly assumes that a defendant’s knowledge is always the same as a defendant’s purpose. In other words, whether a person in defendant’s position would reasonably foresee that the wrongdoing might cause CB’s unavailability is separate and distinct from whether defendant intended to procure the declarant’s unavailability to testify at trial. We interpret the specific intent requirement of MRE 804(b)(6) — to procure the unavailability of the declarant as a witness — as requiring the prosecution to show that defendant acted with, at least in part, the particular purpose to cause CB’s unavailability, rather than mere knowledge that the wrongdoing may cause the witness’s unavailability. Without the aid of a specific factual finding from the trial court in this case, we are unable to determine from the record whether defendant had the requisite specific intent.
We are mindful that prosecuting child sexual abuse cases with young victims presents acute complications. But we are not persuaded by the prosecution’s argument that public policy and the nature of the alleged crime demand that we infer intent under the facts of this case. The Giles Court expressly rejected a similar argument in the context of domestic violence, and refused to create a presumption of intent. At the same time, we recognize that the intent analysis must ultimately be made on a case-by-case basis. For these reasons, we are not persuaded that the facts of this case require us to conclude that the MRE 804(b)(6)-required specific intent can necessarily be inferred from the trial court’s findings.
We also conclude that the trial court’s application of the third element required to satisfy MRE 804(b)(6)— that defendant’s conduct in fact caused CB’s unavailability — undermines its conclusion that the hearsay testimony was admissible pursuant to MRE 804(b)(6). As the trial court recognized in declaring CB unavailable, her inability to testify was based on her “infirmity, her youth,” and her fear of testifying in open court. The trial court did not include defendant’s wrongdoing among the reasons for CB’s inability to testify. In fact, the objective evidence about defendant’s alleged wrongdoing would tend to support the conclusion that defendant’s wrongdoing did not cause CB’s inability to testify. Defendant allegedly directed CB to “not tell,” yet she did not follow that direction. Instead, she told the bible school teacher, the forensic interviewer, and the sexual-assault nurse examiner. Moreover, at one point during an interview, CB stated that defendant had told her “not to tell” anybody because she would “get in trouble,” but then immediately acknowledged that she “won’t get in trouble” for telling. Because the trial court’s findings about the reasons for CB’s unavailability did not include defendant’s wrongdoing and are not clearly erroneous, we conclude that the prosecutor has not satisfied the causation element of MRE 804(b)(6).
Finally, we agree with the Court of Appeals that the admission of testimony regarding CB’s statements was outcome determinative. Aside from the improperly admitted hearsay testimony, the prosecution failed to present sufficient evidence of defendant’s alleged criminal sexual conduct. Given the lack of any physical evidence, third-party eyewitnesses, or testimony from CB, we conclude that it is more probable than not that the erroneous admission of the hearsay testimony was outcome determinative.
VI. CONCLUSION
We hold that the prosecutor failed to establish by a preponderance of the evidence that defendant’s conduct both was intended to, and did, cause CB’s unavailability. Thus, admission of CB’s hearsay statements pursuant to MRE 804(b)(6) was an abuse of discretion, and the error was outcome determinative. Accordingly, we affirm the judgment of the Court of Appeals and remand this case for a new trial.
Young, C.J., and Cavanagh, Markman, Kelly, Zahra, and VIVIANO, JJ., concurred with MCCORMACK, J.
MRE 804(b)(6).
Id.
The district court based its decision in support of the bindover on the testimony of the sexual-assault nurse examiner. Her testimony was accepted over defendant’s objection, under the medical-treatment exception to hearsay. MRE 803(4).
MRE 803A permits the admission of a declarant’s out-of-court statement “describing an incident that included a sexual act performed with or on the declarant by the defendant... to the extent that [the statement] corroborates testimony given by the declarant during the same proceeding,” providing (among other limitations) that the statement is introduced through the testimony of someone other than the declarant. The rule does not expressly require that the declarant testify to the sexual act before the corroborating witness testifies to the out-of-court statement, but it does require that the declarant testify at some point in the proceedings.
Multiple accommodations were made to attempt to get CB to testify, including switching the prosecution and defense tables so that CB was closer to the prosecutor; allowing a victim’s advocate to accompany CB while testifying; clearing the court of visitors; moving the jury to a different room to watch CB’s appearance on closed-circuit television; and allowing a private deposition at the prosecutor’s office without defendant or the jury present.
The trial court rejected the prosecutor’s argument that CB’s statement to Gonzales was an excited utterance. See MRE 803(2). The Court of Appeals rejected the prosecutor’s argument that the testimony of the sexual-assault nurse examiner was admissible under the medical-treatment exception. See MRE 803(4). The prosecutor does not advance the excited-utterance argument here, and we agree with the Court of Appeals’ ruling regarding the medical-treatment exception.
The trial court did not specify on which specific subsection of MRE 804(a) its unavailability finding was based. However, defendant does not challenge this ruling, and we decline to consider it.
US Const, Am VI; see Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004); Giles v California, 554 US 353; 128 S Ct 2678; 171 L Ed 2d 488 (2008).
People v Burns, unpublished opinion per curiam of the Court of Appeals, issued June 14, 2012 (Docket No. 304403).
People v Burns, 493 Mich 879 (2012). Our grant order directed the parties to address:
[Wjhether the trial court abused its discretion in admitting the complainant’s out-of-court statements under the forfeiture-by-wrongdoing exception to the hearsay rule set out in MRE 804(b)(6); and [] whether the Court of Appeals substituted its judgment for that of the trial court and, in doing so, invaded the fact-finding authority vested in the trial court.
People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003).
Id.
Marketos v Am Employers Ins Co, 465 Mich 407, 412; 633 NW2d 371 (2001).
People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999) (citation omitted).
MRE 804(b)(6).
Id.
FRE 804(b)(6) provides for admission of “[a] statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.”
Giles, 554 US at 359, 366, citing Reynolds v United States, 98 US 145 (1879); for an influential, pre-Crawford discussion of the doctrine see Friedman, Confrontation and the Definition of Chutzpa, 31 Israel L Rev 506, 532-535 (1997).
Giles, 554 US at 359-360, 367.
Id.; People v Giles, 40 Cal 4th 833, 850; 152 P3d 433, 444 (2007).
Giles, 554 US at 367.
People v Bauder, 269 Mich App 174, 186; 712 NW2d 506 (2005).
Id.
Id. at 188.
Id. at 186-187, quoting United States v Garcia-Meza, 403 F3d 364, 370-371 (CA 6, 2005) (“The Supreme Court’s recent affirmation of the ‘essentially equitable grounds’ for the rule of forfeiture strongly suggests that the rule’s applicability does not hinge on the wrongdoer’s motive. The Defendant, regardless of whether he intended to prevent the witness from testifying against him or not, would benefit through his own wrongdoing if such a witness’s statements could not be used against him, which the rule of forfeiture, based on the principles of equity, does not permit.”).
Giles, 554 US at 367-368.
People v Jones, 270 Mich App 208; 714 NW2d 362 (2006).
Jones, 270 Mich App at 217, quoting United States v Scott, 284 F3d 758, 762 (CA 7, 2002) (quotation marks and brackets omitted).
Id. at 215.
In finding forfeiture, the Jones Court relied in part on testimony that the defendant had, post-arrest, sent a letter to his friends instructing them to fight the declarant to stop him from testifying. 270 Mich App at 219.
MRE 804(b)(6) (emphasis added).
Burns, unpub op at 5, citing People v Riley, 465 Mich 442, 447; 636 NW2d 514 (2001), for the proposition that a constitutional issue should not be addressed where the case may be decided on non-constitutional grounds.
Unlike forfeiture by wrongdoing, the United States Supreme Court has not expressly recognized that dying declarations are an exception to the Sixth Amendment’s confrontation right. See Michigan v Bryant, 562 US _; 131 S Ct 1143, 1151 n 1; 131 L Ed 2d 93 (2011) (“We noted in Crawford that we ‘need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations.’ Because of the State’s failure to preserve its argument with regard to dying declarations, we similarly need not decide that question here.”) (citation omitted).
The Supreme Court of California’s error in Giles was not in adopting an “equitable” forfeiture standard: it was applying that standard to instances of testimonial hearsay. See Giles, 554 US at 376 (“[O]nly testimonial statements are excluded by the Confrontation Clause. [Non-testimonial statements] would be excluded, if at all, only by hearsay rules, which are free to adopt the dissent’s version of forfeiture by wrongdoing.”). See, e.g., State v Jensen, 331 Wis 2d 440, 457; 794 NW2d 482 (2010) (“The nontestimonial statements are not excluded by the Confrontation Clause and, for purposes of a hearsay objection, may be analyzed under a broader version of the forfeiture by wrongdoing doctrine, such as that proffered by the dissent in Giles and by our supreme court.”); Roberts v State, 894 NE2d 1018, 1024 (Ind Ct App, 2008) (“[W]e accept the Supreme Court’s invitation to take a slightly broader view of the doctrine of forfeiture by wrongdoing as advocated by Justice Breyer in his dissent in Giles as it applies to non-testimonial statements under Indiana law.”).
Giles, 554 US at 367-368. As a result, evidence properly admitted under MRE 804(b)(6) will likely also not be barred by the constitutional requirement imposed by the Sixth Amendment. Whether our rule should be amended to recognize the distinction between testimonial and non-testimonial hearsay is not an issue before us in this case. At oral argument, the prosecution explicitly stated that it was not arguing for a different standard depending on whether the hearsay was testimonial.
Jones, 270 Mich App at 217.
MRE 804(b)(6).
When a defendant acts to discourage a witness’s testimony about existing charges, the analysis is easier. Unsurprisingly, there are many forfeiture cases discussing intent relating to already-charged conduct. See, e.g., United States v Stewart, 485 F3d 666, 671-672 (CA 2, 2007) (holding that circumstantial evidence can establish that while the defendant faced drug charges, he procured the murder of a witness who was scheduled to testify against him to prevent that testimony); People v Banos, 178 Cal App 4th 483, 502; 100 Cal Rptr 3d 476 (2009) (finding Giles was satisfied by the testimonial statements of the defendant’s ex-girlfriend, for whose murder he was being tried, because the evidence showed that the defendant had killed her both out of jealousy and to prevent her from testifying in pending cases and from cooperating with authorities). We note that there are important differences between these cases and the case before us. In addition to the timing of the misconduct, homicide cases present different inferences than the instant case.
In general, questions of intent are factual determinations for the trier of fact to make. See People v Kieronski, 214 Mich App 222, 232; 542 NW2d 339 (1995) (“Intent is a question of fact to be inferred from the circumstances by the trier of fact.”). The trial court acts as the fact finder in determining questions of fact preliminary to the admissibility of evidence. MRE 104(a).
A comparison to Giles is illustrative. There, the wrongdoing was an intentional homicide. Thus, the declarant’s unavailability was not just reasonably foreseeable, it was certain. But, as the Giles Court recognized, forfeiture by wrongdoing requires a purposed-based inquiry: “the dissent’s claim that knowledge is sufficient to show intent is emphatically not the modern view.” Giles, 554 US at 368, citing 1 LaFave, Substantive Criminal Law, § 5.2, p 340 (2d ed 2003). While the alleged wrongdoing in the instant case is fundamentally different than the murder in Giles, the requisite specific intent required — to cause a declarant’s unavailability to testify — remains the same.
Giles, 554 US at 376-377.
The Court of Appeals stated that “[a]lthough it appears that the purpose of any such statements ‘not to tell’ may have been to prevent the victim from disclosing the criminal acts, it is doubtful that they can be construed as threats intended to prevent the victim from testifying at trial." Bums, unpub op at 2 (emphasis added). Although the record in this case does not support such a construction because it is devoid of both an explicit trial court finding of specific intent or evidence to compel such a conclusion, we emphasize that such statements must be evaluated in light of the circumstances in which they were made, on a case-by-case basis. Although not required by our court rules, we strongly encourage trial courts to make findings of fact on the record for each of the three elements required by MRE 804(b)(6).
We recognize that the Giles holding has been criticized for its policy implications, especially in cases of domestic violence culminating in murder. See, e.g., Lininger, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims, 87 Tex L Rev 857 (2009); Davies, Selective Originalism: Sorting Out Which Aspect of Giles’s Forfeiture Exception to Confrontation Were or Were Not “Established at the Time of the Founding,” 13 Lewis & Clark L Rev 605 (2009). Commentators have also advocated for different standards to be applied in cases of child witnesses in a variety of forfeiture and Confrontation clause contexts. See, e.g., Lyon and Dente, Child Witnesses and the Confrontation Clause, 102 J Crim L & Criminology 1181 (2012) (proposing a “forfeiture by exploitation” approach in cases of child abuse); Dripps, Controlling the Damage Done by Crawford v Washington: Three Constructive Proposals, 7 Ohio St J Crim L 521 (2010) (suggesting a rebuttable presumption that an otherwise unexplained unavailability of a witness previously injured or threatened by the accused is the result of improper pressure brought by the defendant). Yet, the courts’ respect for the Sixth Amendment and the rules of evidence may be all that separates an accusation from a wrongful conviction. In any event, our role is not to enter such policy debates but rather to apply the United States Supreme Court’s precedent and our own rules faithfully. | [
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Per Curiam.
The Michigan Medical Marihuana Act (MMMA) prohibits the prosecution of registered patients who internally possess marijuana, but the act does not protect registered patients who operate a vehicle while “under the influence” of marijuana. The Michigan Vehicle Code prohibits a person from driving with any amount of a schedule 1 controlled substance, a list that includes marijuana, in his or her system. This case requires us to decide whether the MMMA’s protection supersedes the Michigan Vehicle Code’s prohibition and allows a registered patient to drive when he or she has indications of marijuana in his or her system but is not otherwise under the influence of marijuana. We conclude that it does. Accordingly, in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals, reinstate the judgment of the Grand Traverse Circuit Court, and remand this case to the 86th District Court for further proceedings not inconsistent with this opinion.
Defendant, Rodney Lee Koon, was stopped for speeding in Grand Traverse County. During the traffic stop, defendant voluntarily produced a marijuana pipe and informed the arresting officer that he was a registered patient under the MMMA and was permitted to possess marijuana. A blood test to which defendant voluntarily submitted several hours later revealed that his blood had a THC content of 10 nanograms per milliliter (ng/ml).
The prosecution charged defendant with operating a motor vehicle with the presence of a schedule 1 controlled substance in his body under MCL 257.625(8). The prosecution sought a jury instruction that the presence of marijuana in defendant’s system resulted in a per se violation of the Michigan Vehicle Code. Defendant argued that the zero-tolerance provision could not possibly apply to MMMA registered patients because the MMMA prevents the prosecution of registered patients for the medical use of marijuana, including internal possession, and only withdraws its protection when the patient drives while “under the influence” of marijuana. Moreover, the MMMA resolves conflicts between all other acts and the MMMA by exempting the medical use of marijuana from the application of any inconsistent act.
The district court and circuit court agreed with defendant. Both courts concluded that the MMMA’s prohibition against driving while under the influence of marijuana was inconsistent with the Michigan Vehicle Code’s zero-tolerance provision, that the MMMA superseded the zero-tolerance provision, and that defendant was protected from prosecution unless the prosecution could prove that he was impaired by the presence of marijuana in his body. The Court of Appeals reversed, reasoning that the MMMA yielded to the Legislature’s determination, as set forth in MCL 257.625(8), that it is unsafe for a person to drive with any marijuana in his or her system. The Court of Appeals explained that
while the MMMA does not provide a definition of “under the influence of marijuana,” MCL 257.625(8) essentially does, establishing that any amount of a schedule 1 controlled substance, including marijuana, sufficiently influ enees a person’s driving ability to the extent that the person should not be permitted to drive.[ ]
Thus, the Court of Appeals determined that the MMMA permitted defendant’s prosecution under the zero-tolerance statute even though he possessed a valid medical marijuana registration card. We now reverse.
The statute under which the prosecution charged defendant prohibits a person from driving with any amount of marijuana in his or her system:
A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or of a controlled substance described in section 7214(a) (iv) of the public health code, 1978 PA 368, MCL 333.7214.[ ]
Despite the MMMA’s enactment, marijuana remains a schedule 1 controlled substance.
The MMMA, rather than legalizing marijuana, functions by providing registered patients with immunity from prosecution for the medical use of marijuana:
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 ... 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 ....[ ]
The statutory definition of “medical use” includes “internal possession.” Therefore, the MMMA shields registered patients from prosecution for the internal possession of marijuana, provided that the patient does not otherwise possess more than 2.5 ounces of usable marijuana.
But the MMMA does not provide carte blanche to registered patients in their use of marijuana. Indeed, MCL 333.26427(b) provides a list of activities that are not protected by the MMMA. Engaging in one of those activities removes a registered patient from the MMMA’s protection because he or she is no longer acting in accordance with the MMMA. One prohibited activity is driving while under the influence of marijuana:
This act shall not permit any person to do any of the following:
(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.
The MMMA, however, does not define what it means to be “under the influence” of marijuana. While we need not set exact parameters of when a person is “under the influence,” we conclude that it contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person. Thus, taking the MMMA’s provisions together, the act’s protections extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana. In contrast, the Michigan Vehicle Code’s zero-tolerance provision prohibits the operation of a motor vehicle by a driver with an infinitesimal amount of marijuana in his or her system even if the infinitesimal amount of marijuana has no influence on the driver.
The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with the Michigan Vehicle Code’s prohibition against a person driving with any amount of marijuana in his or her system. When the MMMA conflicts with another statute, the MMMA provides that “ [a]ll other acts and parts of acts inconsistent with [the MMMA] do not apply to the medical use of marihuana. . . .” Consequently, the Michigan Vehicle Code’s zero-tolerance provision, MCL 257.625(8), which is inconsistent with the MMMA, does not apply to the medical use of marijuana. The Court of Appeals incorrectly concluded that defendant could be convicted under MCL 257.625(8) without proof that he had acted in violation of the MMMA by “operating] ... [a] motor vehicle . .. while under the influence” of marijuana. If defendant is shown to have been under the influence of marijuana, then the MMMA’s protections will not apply, and the prosecution may seek to convict defendant under any statute of which he was in violation, including MCL 257.625(8).
It goes almost without saying that the MMMA is an imperfect statute, the interpretation of which has repeatedly required this Court’s intervention. Indeed, this case could have been easily resolved if the MMMA had provided a definition of “under the influence.” As the Legislature contemplates amendments to the MMMA, and to the extent it wishes to clarify the specific circumstances under which a registered patient is per se “under the influence” of marijuana, it might consider adopting a “legal limit,” like that applicable to alcohol, establishing when a registered patient is outside the MMMA’s protection.
In sum, we conclude that the MMMA is inconsistent with, and therefore supersedes, MCL 257.625(8) unless a registered qualifying patient loses immunity because of his or her failure to act in accordance with the MMMA. Accordingly, in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals, reinstate the judgment of the Grand Traverse Circuit Court, and remand this case to the 86th District Court for further proceedings not inconsistent with this opinion.
YOUNG, C.J., and CAVANAGH, MARKMAN, KELLY, ZAHRA, McCormack, and Viviano, JJ., concurred.
MCL 333.26421 et seq.
MCL 257.1 et seq.
Tetrahydrocannabinol, or THC, is the physiologically active component of marijuana. See Stedman’s Medical Dictionary (26th ed), p 1791.
MCL 333.26423(f); MCL 333.26424(a).
MCL 333.26427(b)(4).
MCL 333.26427(e).
People v Koon, 296 Mich App 223; 818 NW2d 473 (2012).
Id. at 227-228.
MCL 257.625(8).
MCL 333.7212(1)(c).
MCL 333.26424(a).
MCL 333.26423(f).
See MCL 333.26427(a).
Significantly, “under the influence” is a term of art used in other provisions of the Michigan Vehicle Code. See, e.g., MCL 257.625(1)(a) (stating that a person is “operating while intoxicated” if he or she is “under the influence of... a controlled substance ...”). See also People v Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975) (concluding that an acceptable jury instruction for “driving under the influence of intoxicating liquor” included requiring proof that the person’s ability to drive was “substantially and materially affected”); Black’s Law Dictionary (9th ed), p 1665 (defining “under the influence” as “deprived of clearness of mind and self-control because of drugs or alcohol”).
MCL 333.26427(e).
MCL 333.26427(b)(4).
Indeed, if defendant is subsequently shown at trial to have been under the influence of marijuana, he would also necessarily have been in violation of MCL 257.625(1), which prohibits a person from operating a vehicle while intoxicated and defines “operating while intoxicated” as operating a vehicle while “under the influence of... a controlled substance ....”
See, e.g., People v Kolanek, 491 Mich 382; 817 NW2d 528 (2012); People v Bylsma, 493 Mich 17; 825 NW2d 543 (2012); Michigan v McQueen, 493 Mich 135; 828 NW2d 644 (2013).
Presently, under the Michigan Vehicle Code, whether a person was under the influence at the time of a violation is a question for the finder of fact. See MCL 257.625(18) (requiring a written finding from the jury or a finding from the court when the defendant is convicted without a jury regarding whether the person was “under the influence of a controlled substance”).
See MCL 257.625(l)(b) (establishing 0.08 grams of alcohol per 100 milliliters of blood as the legal limit).
For example, Washington has set a legal limit for the blood concentration of THC at 5 ng/ml. See Wash Rev Code 46.61.502(1)(b). Notably, defendant’s THC level was 10 ng/ml.
While neither party raised the issue, we conclude that the MMMA’s enactment without republishing MCL 257.625(8) did not run afoul of Const 1963, art 4, § 25, which states 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.” Assuming, without deciding, that this provision applies to voter-initiated laws, we conclude that the MMMA is an “act complete in itself” and, therefore, falls within a well-settled exception to Const 1963, art 4, § 25. People ex rel Drake v Mahaney, 13 Mich 481, 497 (1865) (“But an act complete in itself is not within the mischief designed to he remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent.”). See also In re Constitutionality of 1972 PA 294, 389 Mich 441, 477; 208 NW2d 469 (1973) (concluding that the no-fault insurance act was an act complete in itself and, thus, did not violate Const 1963, art 4, § 25, though it affected provisions that were not republished). | [
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Viviano, J.
In these consolidated cases, we consider the proper assessment of points under offense variable (OV) 7 (aggravated physical abuse). Specifically, our focus is on what type of conduct under OV 7 constitutes “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” In both cases, the circuit courts concluded that the defendants’ respective conduct supported assessing 50 points for OV 7 pursuant to MCL 777.37(l)(a). We conclude that the plain meaning of the phrase “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense” encompasses both defendant Hardy’s act of racking a shotgun during a carjacking and defendant Glenn’s violent behavior during an armed robbery. Accordingly, we affirm the circuit court’s scoring decision in Hardy. In Glenn, we reverse the judgment of the Court of Appeals and remand the case to the circuit court for reinstatement of defendant Glenn’s July 22, 2010 judgment of sentence.
I. FACTS AND PROCEDURAL HISTORY
A. PEOPLE v HARDY
In July 2010, defendant Hardy and an accomplice approached a man, who had just exited his car. Hardy pointed a shotgun at the man, racked it, and demanded that the man give him everything he had. The man grabbed the barrel of the shotgun and tried to wrench it out of Hardy’s grasp, but Hardy overpowered him, and Hardy and his accomplice drove off in the man’s vehicle. Police arrested both men a few hours later.
Hardy pleaded guilty to one count of carjacking. At sentencing, the prosecutor argued that the circuit court should assess 50 points for OV 7 because Hardy had not only displayed a shotgun, but had also pointed it at the victim and racked it. The prosecutor claimed that the act of racking a shotgun was “conduct designed only to threaten the victim with immediate violent death.” Defense counsel agreed to the scoring, stating, “I cannot argue with that, your Honor.” Accordingly, the circuit court assessed 50 points for OV 7 and sentenced Hardy to 12 to 50 years’ imprisonment.
Hardy filed a motion for resentencing, challenging the OV 7 scoring and claiming that defense counsel had been constitutionally ineffective for consenting to it. The circuit court denied the motion, concluding that the 50-point score under OV 7 was proper and that defense counsel was not constitutionally ineffective. After Hardy filed a delayed application for leave to appeal in the Court of Appeals, a majority of the panel denied leave for lack of merit in the grounds presented. However, the dissenting judge would have remanded for resentencing on the ground that the circuit court incorrectly scored OV 7.
We granted leave to consider whether the circuit court erroneously assessed 50 points for OV 7 because Hardy racked the shotgun during the carjacking and whether defense counsel was ineffective for waiving this issue.
BPEOPLE v GLENN
In August 2009, defendant Glenn and an accomplice entered a gas station convenience store. He carried what two store employees later described as a “sawed-off shotgun.” Glenn ordered one of the employees to approach the front counter. As the employee did so, Glenn struck him in the back of the head with the butt of the weapon. The blow was so forceful that it knocked him to the ground. Glenn then forced both employees behind the counter and demanded money, which Glenn grabbed out of the cash register and safe. He hit the second employee in the side of the head with the butt of his weapon before fleeing with his accomplice in a waiting getaway car. Soon afterward, police stopped the getaway car and arrested Glenn. Neither employee suffered any injuries.
Glenn pleaded guilty to one count of armed robbery and one count of assault with a dangerous weapon. At sentencing, the prosecutor argued that striking the employees with the weapon was designed to “get them to move faster, to be afraid,” and that this was sufficient to assess 50 points for OV 7 because it involved “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” The circuit court agreed with the prosecutor and assessed 50 points for OV 7 over defense counsel’s objection. The circuit court then sentenced defendant to 15 to 30 years’ imprisonment for the armed robbery and 18 to 48 months’ imprisonment for the felonious assault.
In a published opinion, the Court of Appeals vacated defendant’s sentence and remanded for resentencing. The Court acknowledged that Glenn, by striking the employees, used more violence than was “strictly necessary” to complete an armed robbery. But the Court of Appeals concluded that the circuit court erred because OV 7 was only “meant to be scored in particularly egregious cases involving torture, brutality, or similar conduct designed to substantially increase the victim’s fear, not in every case in which some fear-producing action beyond the bare minimum necessary to commit the crime was undertaken.”
We granted leave to appeal to consider whether the circuit court erroneously assessed 50 points for OV 7 because Glenn committed “assaultive acts beyond those necessary to commit the offense.”
II. STANDARD OF REVIEW
We take this opportunity to clarify the applicable standards of review for a sentencing guidelines scoring issue. In Glenn, the Court of Appeals stated that an appellate court “reviews a trial court’s scoring of the sentencing guidelines to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” This is an imprecise statement of applicable law.
As we have explained before, the abuse of discretion standard formerly predominated, in sentencing review. But when the Legislature enacted the sentencing guidelines in 1998, it prescribed detailed instructions for imposing sentences, thereby reducing the circumstances under which a judge could exercise discretion during sentencing. Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.
In these cases, we review for clear error the factual findings that the defendants’ conduct was designed to substantially increase the fear and anxiety of their victims. We review de novo whether, these acts were sufficient to assess 50 points for OV 7.
III. ANALYSIS
A. INTERPRETING MCL 777.37 (OV 7)
As we have stated before, our goal in interpreting a statute “is to ascertain and give effect to the intent of the Legislature. The touchstone of legislative intent is the statute’s language. If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written.”
MCL 777.37 governs OV 7. MCL 777.37(1) provides, in full:
(1) Offense variable 7 is aggravated physical abuse. Score offense variable 7 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:
(a) A victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense .......................................................................50 points
(b) No victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense......................................................................0 points
A trial court can properly assess 50 points under OV 7 if it finds that a defendant’s conduct falls under one of the four categories of conduct listed in subsection (1)(a). No party contends that any of the first three categories (sadism, torture, or excessive brutality) applies in these cases. Thus, our focus is on the fourth category— whether defendants engaged in “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.”
Other than “sadism,” the statute does not define the individual terms used in the listed categories, so we presume that the Legislature intended for the words to have their ordinary meaning. Thus, we turn to the dictionary for guidance in interpreting the terms used in the phrase: “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.”
The phrase begins with the words “conduct designed.” “Designed” means “to intend for a definite purpose.” Thus, the word “designed” requires courts to evaluate the intent motivating the defendant’s conduct. Next, we come to the words “substantially increase.” “Substantial” means “of ample or considerable amount, quantity, size, etc.” To “increase” means “to make greater, as in number, size, strength, or quality; augment.” Applying these definitions to the relevant text, we conclude that it is proper to assess points under OV 7 for conduct that was intended to make a victim’s fear or anxiety greater by a considerable amount.
In Glenn, the Court of Appeals erred by ignoring the Legislature’s second use of the word “or” in the provision at issue. MCL 777.37(1)(a), reads: “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered[.]” “Or” is a word “used to indicate a disunion, a separation, an alternative.” While the first “or” may be interpreted as linking the first three categories in a common series, the second “or” separates the last OV 7 category from the series that precedes it. Thus, the use of “or” before the phrase “conduct designed” shows that this phrase is an independent clause that has an independent meaning. The Court of Appeals in Glenn therefore erred by interpreting the statute in a manner inconsistent with its plain meaning.
The Court of Appeals also erred in Glenn to the extent it concluded that “circumstances inherently present in the crime must be discounted for purposes of scoring an OV” To the contrary, absent an express prohibition, courts may consider conduct inherent in a crime when scoring offense variables. The sentencing guidelines explicitly direct courts to disregard certain conduct inherent in a crime when scoring OVs 1, 3, 8, 11, and 13. In all other cases, “the Sentencing Guidelines allow a factor that is an element of the crime charged to also be considered when computing an offense variable score.” It was error for the Court of Appeals to state or imply otherwise in Glenn.
However, we agree with the Court of Appeals that “ [a]ll. . . crimes against a person involve the infliction of a certain amount of fear and anxiety.” Since the “conduct designed” category only applies when a defendant’s conduct was designed to substantially increase fear, to assess points for OV 7 under this category, a court must first determine a baseline for the amount of fear and anxiety experienced by a victim of the type of crime or crimes at issue. To make this determination, a court should consider the severity of the crime, the elements of the offense, and the different ways in which those elements can be satisfied. Then the court should determine, to the extent practicable, the fear or anxiety associated with the minimum conduct necessary to commit the offense. Finally, the court should closely examine the pertinent record evidence, including how the crime was actually committed by the defendant. As noted above, evidence which satisfies an element of an offense need not be disregarded solely for that reason. Instead, all relevant evidence should be closely examined to determine whether the defendant engaged in conduct beyond the minimum necessary to commit the crime, and whether it is more probable than not that such conduct was intended to make the victim’s fear or anxiety increase by a considerable amount.
In summary, we conclude that a defendant’s conduct does not have to be “similarly egregious” to “sadism, torture, or excessive brutality” for OV 7 to be scored at 50 points, and that, absent an express statutory prohibition, courts may consider circumstances inherently present in the crime when scoring OV 7. The relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount.
B. APPLICATION TO HARDY
Evidence in the record, including Hardy’s own plea colloquy, established that he pointed a shotgun at the victim and then racked it. The purpose of racking a shotgun is to pull a new round of ammunition from the magazine tube and slide it into the firing chamber. Racking the weapon makes it ready to fire.
We first consider whether racking the shotgun went beyond the minimum conduct necessary to commit a carjacking. A carjacking occurs “in the course of committing a larceny of a motor vehicle[.]” While doing so, a defendant must use (1) “force or violence,” (2) “the threat of force or violence,” or (3) put “in fear any operator, passenger, or person in lawful possession of the motor vehicle, or any person lawfully attempting to recover the motor vehicle.” Hardy threatened his victim with violence by pointing the shotgun at him and racking it, even though merely displaying the weapon or pointing it at the victim would have been enough to issue a threat. Because Hardy took the extra step of racking the shotgun, the circuit court correctly assessed 50 points for OV 7 as long as this conduct was designed to substantially increase the victim’s fear beyond the usual level that accompanies a carjacking.
Hardy argues that he racked the shotgun solely for the purpose of getting his victim to comply, not to substantially increase his victim’s fear. But racking a shotgun under these circumstances only urges compliance if doing so makes the victim fear imminent, violent death if he or she does not comply. Hence, even if Hardy’s ultimate goal was to provoke compliant behavior, a preponderance of the evidence shows that his conduct was designed to substantially increase the fear of his victim beyond the usual level that accompanies a carjacking, to the point where the victim feared imminent death.
Because Hardy took the extra step of racking the shotgun, and because he did so to make his victim fear that a violent death was imminent, not just possible, the circuit court properly assessed 50 points for OV 7.
“Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous or meritless motion.” Because the circuit court properly scored OV 7, any objection to the court’s assessment of points would have been meritless. As a result, Hardy’s counsel did not provide ineffective assistance by failing to object to the scoring.
C. APPLICATION TO GLENN
Turning to Glenn’s case, we begin again by consid ering whether he went beyond the minimum conduct necessary to commit an armed robbery. To commit this crime, a defendant must engage “in conduct proscribed under [MCL 750.530,]” Michigan’s robbery statute, which criminalizes using “force or violence against any person who is present” at a larceny or assaulting or putting “the person in fear[,]” “in the course of committing a larceny.” To commit an armed robbery, the defendant must also either (1) possess “ a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the article is a dangerous weapon,” or (2) represent “orally or otherwise that he or she is in possession of a dangerous weapon[.]” To rob the convenience store, Glenn could have simply put the victims in fear by orally representing that he had a weapon. Instead, he chose to threaten the victims with what appeared to be a sawed-off shotgun, and then used it to strike two different victims in the head. Hence, Glenn’s conduct went beyond that necessary to commit an armed robbery.
We next consider whether this conduct was designed to increase the fear or anxiety of the victims by a considerable amount. By striking the employees in the head, knocking one to the ground, and forcing both of them behind the store counter, Glenn demonstrated to his victims that he was willing to follow through on his threat to harm them, and he placed them in a place of increased vulnerability, where escape was almost impossible. It is more probable than not that Glenn, like Hardy, engaged in this conduct to frighten his victims into compliance. We can infer this from the fact that Glenn assaulted the employees while making monetary demands. His conduct was designed to elevate his victims’ fear from the concern that accompanies an unrealized threat (the fear that a criminal will become violent), to the concern that accompanies actualized violence (the fear that an attacker’s blows will cause injury or death). This constitutes a considerable amount of additional fear.
Because Glenn’s conduct went beyond that necessary to effectuate an armed robbery, and because he intended for his conduct to increase the fear of his victims by a considerable amount, the Court of Appeals erred by holding that the circuit court incorrectly assessed 50 points for OV 7.
IV CONCLUSION
We hold that because a preponderance of the evidence established that Hardy racked a shotgun to increase the fear of his victim by a considerable amount, the circuit court properly assessed 50 points for OV 7 by finding that Hardy’s conduct of racking a shotgun while pointing it at the victim constituted “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” Accordingly, we affirm the circuit court’s assessment of 50 points for OV 7 in Hardy.
We further hold that because a preponderance of the evidence established that Glenn struck two victims with the butt of what appeared to be a sawed-off shotgun, knocked one victim to the ground, and forced both victims behind a store counter to make them fear imminent, serious injury or death, the circuit court appropriately assessed 50 points for OV 7. In Glenn, we reverse the Court of Appeals and remand the case to the circuit court for reinstatement of the judgment of sentence.
Young, C.J., and Markman, Kelly, Zahra, and McCormack, JJ., concurred with Viviano, J.
MCL 777.37.
MCL 777.37(1)(a).
To “rack” a shotgun is to pull the slide of the weapon along the forestock, then push it back to its original position. See United States Army Technical Manual 9-1005-338-13&P, “Mossberg 12-Gauge Shotgun Model 500/590,” 0004 00-2 (2005).
MCL 750.529a.
People v Hardy, unpublished order of the Court of Appeals, entered November 18, 2011 (Docket No. 306106).
People v Hardy, 491 Mich 934 (2012).
In fact, the weapon was an “airsoft” gun that was designed to look like a real firearm. Airsoft guns shoot plastic pellets, rather than live ammunition. An-Hung Yao v Indiana, 975 NE2d 1273, 1275, n 1 (Ind, 2012).
MCL 750.529.
MCL 750.82. This latter charge resulted from Glenn pointing his airsoft gun at an off-duty corrections officer who had pursued Glenn as he fled the gas station.
The Court of Appeals incorrectly stated that Glenn’s armed robbery sentence was 18 to 30 years in prison. People v Glenn, 295 Mich App 529, 530; 814 NW2d 686 (2012).
Id. at 536.
Id.
Id.
People v Glenn, 491 Mich 934 (2012).
Glenn, 295 Mich App at 532.
People v Babcock, 469 Mich 247, 253-254; 666 NW2d 231 (2003).
Id. at 255. Now, under the sentencing guidelines, the abuse of discretion standard only applies when an appellate court reviews a circuit court’s conclusion that there was a “substantial and compelling reason” to depart from the guidelines. Id. at 265.
People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). Several recent Court of Appeals decisions have stated that “[s]coring decisions for which there is any evidence in support will be upheld.” See, e.g., People v Carrigan, 297 Mich App 513, 514; 824 NW2d 283 (2012); People v Phelps, 288 Mich App 123, 135; 791 NW2d 732 (2010); People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006). This statement is incorrect. The “any evidence” standard does not govern review of a circuit court’s factual findings for the purposes of assessing points under the sentencing guidelines.
People v Babcock, 469 Mich at 253 (2003).
People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008) (quotation marks and citations omitted).
MCL 777.37(1)(a).
MCL 777.37(3).
MCL 8.3a.
People v Peals, 476 Mich 636, 641; 720 NW2d 196 (2006).
Random, House Webster’s College Dictionary (2001).
As in other areas of criminal law, “[ilntent generally may be inferred from the facts and circumstances of a case.” In re People v Jory, 443 Mich 403, 419; 505 NW2d 228 (1993). For this reason, a defendant does not have to verbalize his intentions for a judge to find that the defendant’s conduct was designed to elevate a victim’s fear or anxiety. Rather, a court can infer intent indirectly by examining the circumstantial evidence in the record that was proven by a preponderance of the evidence.
Random House Webster’s College Dictionary (2001).
Id.
We note that by the statute’s own terms, the focus is on the intended effect of the conduct, not its actual effect on the victim. Accord People v Kegler, 268 Mich App 187, 191; 706 NW2d 744 (2005) (“Points are assessed where ‘a victim was treated with .. . torture, or excessive brutality or conduct designed to increase’ a victim’s fear and anxiety. The statute does not require, for instance, that ‘a victim experienced... torture, or excessive brutality or conduct designed to increase’ fear and anxiety.”) (emphasis added).
Emphasis added.
Mich Pub Serv Co v City of Cheboygan, 324 Mich 309, 341; 37 NW2d 116 (1949).
Glenn, 295 Mich App at 535. The Court of Appeals relied on People v Hunt, 290 Mich App 317; 326; 810 NW2d 588 (2010), for this proposition. In Hunt, the Court of Appeals reviewed a defendant’s OV 7 score for his actions during a series of kidnappings and assaults, and it correctly noted that “unlike OV 1, OV 2, and OV 3, OV 7 does not state that ‘[i]n multiple offender cases, if 1 offender is assessed points for [the applicable behavior or result], all offenders shall be assessed the same number of points.’ ” Id. Likewise, the court also noted in Hunt that, MCL 777.38(2)(b) provides that, “[transportation to a place of greater danger is appropriately scored under OV 8, but must be given a score of zero points when, as here, the sentencing offense is kidnapping.” Id. But these observations do not establish the rule that the Court of Appeals stated in Glenn because they are properly understood as exceptions to the general rule that such conduct may be considered. People v Gibson, 219 Mich App 530, 534; 557 NW2d 141 (1996).
MCL 777.31(2)(e); MCL 777.33(2)(d); MCL 777.38(2)(b); MCL 777.41(2)(c); MCL 777.43(2)(e).
Gibson, 219 Mich App at 534.
Glenn, 295 Mich App at 536.
OV 7 is scored for all offenses classified as “crimes against a person.” MCL 777.22(1). This category of felonies encompasses a broad spectrum of crimes ranging from those that may cause little or no fear and anxiety to a victim during the offense, to those crimes that, by their very nature, tend to cause a great deal of fear and anxiety to a victim during the offense.
We acknowledge that courts cannot calculate this “fear baseline” with mathematical certainty. However, such precision is not required because it merely serves as a benchmark against which to measure the intended increase in fear associated with defendant’s conduct.
One purpose of the sentencing guidelines is to facilitate proportionate sentences. People v Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003). Justice Cavanagh believes that our holding today “would result in disproportionate sentencing” because our interpretation of the “conduct designed” category does not require the same level of “very egregious” conduct as the other OV 7 categories to assess 50 points. Post at 454. We respectfully disagree. Our holding today does not conflict with the guidelines’ goal of proportionality because it is for the Legislature, not this Court, to decide what types of conduct warrant similar scoring under MCL 777.37.
United States Army Technical Manual 9-1005-338-13&P, “Mossberg 12-Gauge Shotgun Model 500/590,” 0004 00-2 (2005). This action would also extract and eject a spent casing if the weapon has already been fired. Id.
Id. at 0005 00-1 - 00-2.
MCL 750.529a(1).
Id.
People v Riley (After Remand), 468 Mich 135, 142; 659 NW2d 611 (2003).
The sentencing court based its OV 7 scoring exclusively on Glenn’s conduct during the armed robbery, not on his conduct during the subsequent felonious assault. In addition, the prosecutor does not argue that the conduct underlying the felonious-assault conviction merited OV 7 scoring. Accordingly, we do not consider whether that conduct could have formed an independent basis for scoring OV 7 in Glenn’s case.
MCL 750.529; MCL 750.530.
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Viviano, J.
In this case, we consider the meaning of the phrase “from the person of another” under MCL 750.357, the larceny-from-the-person statute. Until 2004, Michigan’s robbery statute contained this phrase as well, so we also consider whether the 2004 amendment that removed this phrase from the robbery statute altered the meaning of “from the person” in the larceny-from-the-person statute.
We hold that Michigan law requires a defendant to take property from the physical person or immediate presence of a victim to commit a larceny from the person. In rare cases, a taking outside of a victim’s immediate presence may satisfy the from-the-person element only if a defendant or the defendant’s accomplices use force or threats to create distance between a victim and the victim’s property. Because defendant in this case did not take property from the person or immediate presence of the victim, or use force or threats to separate a victim from the victim’s property, we conclude that she did not commit a larceny from the person. Accordingly, we affirm the judgment of the Court of Appeals, which reversed her conviction of larceny from the person.
I. FACTS AND PROCEDURAL HISTORY
On May 31, 2010, Khai Krumbhaar was working as a plain clothes loss-prevention officer at a Macy’s in Southfield, Michigan. Through one of Macy’s closed-circuit television monitors, Krumbhaar observed defendant carrying two bags, which she held “very, very closely.” According to Krumbhaar, defendant “appeared extremely nervous” and was “darting her eyes” in the direction of sales associates and customers.
After watching defendant select a perfume set off a display case, Krumbhaar went to the sales floor to monitor her. Krumbhaar stayed far enough away to appear as if she were just another shopper, but stayed “fairly close” to defendant, at least close enough to observe her behavior. At times, she was within earshot of defendant. As Krumbhaar followed, she saw defendant “push[] the . . . [perfume] box down into her shopping bag.” After this, Krumbhaar “stayed back giving [defendant] some space,” until she saw defendant “walking very quickly” out of the store into the main mall area. Outside the Macy’s store, Krumbhaar confronted defendant, identified herself as a Macy’s loss-prevention officer, and asked defendant about the perfume set. Defendant began shouting and ran from Krumbhaar; Krumbhaar gave chase and captured defendant, who allegedly scratched and bit Krumbhaar as she tried to restrain defendant.
The prosecution charged defendant with unarmed robbery, second-degree retail fraud, and possession of marijuana. On the first day of trial, the prosecution dismissed the latter two charges, although defendant objected to the dismissal of the second-degree retail-fraud charge. The prosecution’s only witness was Krumbhaar, who testified to the above facts. After closing argument, and upon defendant’s request, the circuit court instructed the jury on the elements of larceny from the person. The court explained that to find defendant guilty of larceny from the person, the jury would have to find that “property was taken from Khai Krumbhaar’s person or from Khai Krumbhaar’s immediate area of control or immediate presence.” After deliberating, the jury acquitted defendant of unarmed robbery, but found her guilty of larceny from the person.
On review, the Court of Appeals reversed defendant’s conviction in a split published opinion. The majority concluded that the prosecution presented no evidence that defendant had committed the larceny within Krumbhaar’s “area of immediate presence or control.” The court noted that Krumbhaar “never testified that she was even within arm’s length of defendant” or that “Krumbhaar was even close enough to defendant to have touched her or to have snatched the box from defendant’s hands.” Accordingly, the court held that the prosecution had failed to prove a larceny “from the person” of Krumbhaar because “[p]roof of ‘stealing from the person of another’ requires more than vague proximity between the victim and the perpetrator.”
Writing in dissent, Judge WHITBECK disagreed. He believed that Krumbhaar’s testimony that she was close enough to defendant to see her and hear her as she moved throughout the store was sufficient proof, as a matter of law, to establish that the taking occurred within her “immediate area of control or immediate presence.”
We granted the prosecutor’s application for leave to appeal, directing the parties to address:
(1) whether the evidence was sufficient to prove beyond a reasonable doubt that the crime of larceny from a person, MCL 750.357, was committed within the “immediate area of control or immediate presence” of the loss prevention officer who witnessed the theft; (2) whether the 2004 amendment of the robbery statute, 2004 PA 128 (amending MCL 750.530), altered the definition of “presence” with respect to the larceny-from-the-person statute; and, if not (3) whether the common-law definition of the phrase “from the person” remains consistent with the common-law definition of “presence. ”[ ]
II. STANDARD OF REVIEW
We review de novo questions of statutory interpretation. Our goal in interpreting a statute is to ascertain and “give effect to the intent of the Legislature.” We enforce the clear and unambiguous language of the statute as written. To determine whether the prosecutor has presented sufficient evidence to sustain a conviction, we review the evidence in the light most favorable to the prosecutor and determine “whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”
III. ANALYSIS
A. INTERPRETING “FROM THE PERSON”
Under MCL 750.357, a person who commits a larceny by stealing from “the person of another” is guilty of larceny from the person. To determine whether there was sufficient evidence to establish this element, we must first determine the meaning of the statutory phrase “from the person.” The Legislature has instructed that any “technical words and phrases” that “have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” And in the criminal-law context, common-law doctrine informs the meaning of a statute when the Legislature uses common-law terms. Because the phrase “from the person” has an extensive history at common law, we now turn to that history to determine if the phrase has acquired a “peculiar and appropriate meaning.”
Common-law courts interpreted the phrase “from the person” differently in robbery cases and larceny-from-the-person cases. The first statute to separately criminalize larceny from the person was enacted in England in 1565. The purpose of this law was to punish pickpockets, so courts construed it narrowly, requiring that a thief steal an object attached to or physically possessed by the victim to satisfy the “from the person” element of larceny from the person. At the same time, jurists interpreted the phrase “from the person” more broadly in robbery cases. In those cases, courts interpreted “from the person” differently to account for circumstances in which robbers used force or threats of force in the commission of a theft. As Professor Rollin Perkins has explained, “One of the illustrations of robbery, given by the early writers, is the wrongful driving off of another’s horse or sheep while he, although present, is by violence or intimidation prevented from interfering.” Thus, in robbery cases, common-law courts and scholars interpreted “from the person” to include takings from a victim’s presence to account for the violence and intimidation that distinguishes robbery from larceny. In the words of Sir Edward Coke, writing about the crime of robbery in the 1700s, “that which is taken in [someone’s] presence, is in law taken from his person.” Hence, at common law, the meaning of “from the person” depended on whether the crime at issue was robbery or larceny from the person.
There is a split of authority in American jurisdictions with regard to whether larceny from a person requires a taking directly from the body of the victim or merely from the victim’s immediate presence. Some states followed the common-law approach to the offense of larceny from the person and required physical contact between the stolen object and the victim. But this position is now a minority view. Courts in the majority of states that criminalize this offense have adopted the view that “from the person” includes the area within a victim’s immediate presence. Explaining the rationale for the evolution of the law in this area, the Supreme Court of Minnesota stated that the phrase “from the person” included the “immediate presence” of a victim because, in any taking from this area, “the rights of the person to inviolability would be encroached upon, and his personal security endangered, quite as much as if his watch or purse had been taken from his pocket.”
Prior to 1970, Michigan appears to have taken the minority view, requiring an actual taking from the physical person of the victim. For example, in People v Gadson, this Court reviewed the sufficiency of the evidence for the from-the-person element in a larceny-from-the-person case. At trial, there was evidence presented that the defendant had taken the victim’s wallet, but it was unclear whether the defendant had taken the wallet directly out of the victim’s pocket or after it had fallen out of his pocket during a scuffle. This Court held that there was insufficient evidence on the from-the-person element because there was reasonable doubt regarding whether the defendant took the wallet from the victim’s pocket. We emphasized that “[u]nder [MCL 750.357], an essential element of the larceny charged in the instant case ... is that it was accomplished by ‘stealing from the person of another.’ ” Although not stated explicitly, the facts of the case make it clear that “physical possession” was the governing standard in Michigan law.
Two subsequent Court of Appeals cases took the same approach as Gadson and applied the physical-possession standard to the crime of larceny from the person. In People v Stevens, the defendant and his accomplice were convicted of robbery after they took money from a safe and from under a desk while they held a storeowner at gunpoint. On appeal, the defendant claimed that the trial court erred by not instructing the jury on the lesser-included offense of larceny from the person, but the Court of Appeals disagreed. The court stated that there was “no evidence” for that offense because the “taking was from the safe and from the under the desk; there was no taking from the person of the victim.” Similarly, in People v Johnson, the Court of Appeals reviewed a case in which the defendant stole property from a room in the victim’s home while the victim was in the bathroom. The court stated that this crime could not constitute a larceny from the person and openly rejected the immediate presence approach stating, “What is required is that the property in question actually be taken from the person of another; a taking of property from the immediate presence of the owner is insufficient.” Hence, before 1970, Michigan courts had consistently identified Michigan as a physical-possession state.
However, in the 1970 case of People v Gould, this Court adopted the immediate presence approach, holding that “the taking of property in the possession and immediate presence of the [victims] . . . was sufficient to sustain a verdict against defendant Gould of larceny from the person.” Notably, this Court did not distinguish or overturn the physical-possession cases, nor did we address the text of Michigan’s larceny-from-the-person statute. But Gould’s holding represented a decided shift to the majority, immediate presence view of larceny from the person. Since Gould, this Court has interpreted the phrase “from the person of another” to include takings from the possession and immediate presence of the victim.
Despite this Court’s consistent application of the immediate presence test since Gould, the Court of Appeals has expanded the definition of “from the person.” For example, in People v Perkins, the court stated that the from-the-person element could be satisfied by a taking “from the person or from the person’s immediate area of control or immediate presence.” However, the addition of “immediate area of control” as a independent category is an incorrect statement of the law and appears to stem solely from the model criminal jury instructions. The Court of Appeals’ formulation erroneously suggests that the element can be satisfied by a taking from the victim’s immediate area of control, regardless of whether the taking was from the victim’s immediate presence. This is an expansion of the law because we have always interpreted Michigan’s larceny-from-the-person statute to require the actual presence of the victim at the time of the taking, absent circumstances in which defendants use force to create distance between victims and their property. Because this expansion is not grounded in statute or the decisions of this Court, we repudiate it. In keeping with this Court’s precedent, we adhere to a more restrictive definition of “from the person” that requires the victim to be immediately present when the property is taken.
In addition to declaring that Michigan is an immediate presence jurisdiction, Gould also applied a doctrine that had developed in robbery cases. In this and many other states, courts have had to address the recurring problem of robbers who claim that their convictions should he reversed due to a lack of proof on the from-the-person element, even though the robbers’ own use of force or threats was what created distance between victims and their property. In such circumstances, courts in nearly every American jurisdiction have invoked the rule that robbery defendants cannot negate the from-the-person element of their crimes by using force or threats to remove victims or keep them away from their property. Instead, courts treat victims as constructively present with the property, presuming that a victim would have retained possession of their property “if no[t] overcome by violence or prevented by fear, [from] retaining] his possession of it.” For ease of reference, we will refer to this latter concept as “constructive presence.”
In Gould, this Court applied the constructive-presence exception in a larceny-from-the-person case for the first time in Michigan. But a careful reading of the opinion shows that the court was applying this exception within its traditional limits, not expanding the meaning of “presence” for all larceny-from-the-person cases. The prosecutor had charged all the defendants in Gould with robbery, and no one disputed that the defendants had used force and threats of force (one co-defendant brandished a gun) to move the victims away from the cash register. The defendants forced a waitress to lie face-down on the floor in another room, making it impossible for her to be near the cash for which she was responsible. Thus, even though this Court affirmed defendant Gould’s conviction of larceny from the person, Gould is consistent with other precedent that prevented defendants from negating the from-the-person element of their crimes through the use of force.
In summary, Gould established two principles of law within the larceny-from-the-person context. First, it established Michigan as an immediate presence jurisdiction. Second, it established that the constructive-presence exception from robbery cases could apply in larceny-from-the-person cases, provided there was evidence that the defendant or an accomplice had used force or threats of force to keep a victim away from his or her property.
B. THE EFFECT OF THE 2004 ROBBERY-STATUTE AMENDMENT
We next consider whether the 2004 amendments to Michigan’s robbery statute had any effect on the meaning of “from the person” in the larceny-from-the-person context. We conclude that they did not.
Before 2004, the unarmed-robbery statute prohibited using force or violence to “steal and take from the person of another, or in his presence!.] ” The 2004 amendments removed the phrase “from the person of another” from the robbery statute. As amended, the statute now prohibits anyone who is “in the course of committing a larceny of any money or other property” from using “force or violence against any person who is presentí.]”
These changes were prompted by this Court’s decision in People v Randolph, in which we considered whether Michigan’s robbery statute permitted a transactional theory of robbery. This approach allows a robbery conviction even where a defendant uses force for the first time after completing a taking, and we concluded that the robbery statute then in force did not permit this. In response to our decision, however, the Legislature amended the robbery statute and codified the transactional theory.
At issue in Randolph and the subsequent statutory changes was at what point in the commission of the crime force had to be used for a theft to constitute a robbery. The meaning of “from the person” in either robbery or larceny-from-the-person cases was not at issue in the exchange between the Legislature and this Court. Consequently, there is nothing to suggest that the Legislature intended to change the meaning of “from the person” in the larceny-from-the-person statute by removing this phrase from the robbery statute. We conclude, therefore, that “from the person” in the larceny-from-the-person statute has the same meaning now as it did before the 2004 amendments. The immediate presence test is still the governing standard in this area, and it is to the meaning of “immediate presence” that we now turn.
C. THE MEANING OF “IMMEDIATE PRESENCE”
Perhaps because Michigan was not an immediate presence jurisdiction until Gould, there is scant caselaw explaining the scope of the immediate presence standard. However, this standard has been the subject of legal commentary, and courts in many other states have applied the same standard in deciding their own larceny-from-the-person cases. Courts and commentators alike have emphasized that this standard requires immediate proximity between the object and the victim. As Professor Perkins has explained, “[I]f a man carrying a heavy suitcase sets it down for a moment to rest, and remains right there to guard it, the suitcase remains under the protection of his person.” Even objects that are relatively close to a person are not considered to be in the person’s immediate presence unless they are immediately next to the person. Hence, the North Carolina Supreme Court ruled that there was no larceny from the person where a thief stole a bank bag from a kiosk while the bank teller was 25 to 35 feet away. Likewise, the Colorado Court of Appeals concluded that a person could not be convicted of larceny from the person after taking a purse out of a shopping cart because the victim was not actually holding or pushing the cart at the time of the taking. In contrast, a defendant was properly convicted of larceny from the person in Virginia when he stood two feet away from a store employee but reached within inches of the victim to take cash out of a register. Courts have also affirmed larceny-from-the-person convictions where a thief stole a pocketbook from trousers that the victim was using as a pillow, and where a car driver’s billfold was taken off the seat immediately next to her. From these cases a clear rule emerges: the immediate presence test can only be satisfied if the property was in immediate proximity to the victim at the time of the taking. In other words, the common-law meaning of “immediate presence” in the larceny-from-the-person context is consistent with the plain meaning of the word “immediate,” which means “having no object or space intervening, nearest or next.”
Even when viewed in the light most favorable to the prosecutor, the facts of this case do not satisfy the immediate presence standard, which includes actual possession, or the constructive-presence exception. In this case, the loss-prevention officer was not in possession of the property at the time that it was taken. The record established only that she was “fairly close” to defendant in Macy’s. At the moment defendant actually completed the taking by putting the perfume set into her bag, the loss-prevention officer was following defendant through the store while pretending to be another shopper. Even though the loss-prevention officer remained close enough to observe defendant’s behavior and was also at times within earshot of her, there was ample “intervening space” between the alleged victim and the property that defendant took, such that defendant did not take the perfume set from the immediate presence of the victim.
Notwithstanding the intervening space between the alleged victim and the stolen property, the jury still convicted defendant of larceny from the person. This conviction was arguably reasonable under the current jury instruction, CJI2d 23.3, which contains the phrase “immediate area of control.” The jury may have interpreted this phrase to mean that a larceny from the person could occur in an area that the victim was responsible for, even if the taking was not from the victim’s immediate presence. However, as mentioned above, a finding that the taking occurred within the victim’s “immediate area of control” does not satisfy the from-the-person element absent a finding that the taking was from the victim’s person or immediate presence.
While the Court of Appeals described the immediate presence standard using the colloquial phrase “personal space,” it correctly applied the immediate presence standard. Thus, the Court of Appeals rightly concluded that because defendant did not take any property from the loss-prevention officer’s immediate presence, she did not commit a larceny from the person. And although the prosecutor alleged that defendant used force to retain possession of the perfume set after she had stolen it, there was no evidence that defendant used force or threats to separate the victim from the perfume set before it was taken. Consequently, the constructive-presence doctrine does not apply in this case. For these reasons, we affirm the judgment of the Court of Appeals, which reversed defendant’s conviction.
Finally, there is a related common-law doctrine that provides additional support for our conclusion. At common law, courts treated the taking of merchandise off a shelf or rack as a larceny from a building, not larceny from a person. Such takings were considered larcenies from a person only if an employee had been exercising direct control over the specific property at the time of the taking. As Professor Perkins explains,
Goods on open shelves, goods standing on the floor, goods arranged on tables or counters are normally treated as within the protection of the building. One distinction, however, is to be noted. If a jewel or other valuable thing, normally kept out of open reach of customers, is placed on the counter under the eye of the storekeeper or clerk while it is being examined by a customer, this is regarded as under the personal protection of the storekeeper or clerk at the moment, rather than under the protection of the building; whereas articles placed on the counter with the expectation that they will remain there all day, unless purchased, are under the protection of the building][ ]
Here, the dissent asserts that the loss-prevention officer had “personal protection and rightful control” over the gift box because she was “[a]n employee of Macy’s responsible for preventing thefts of Macy’s store items.” While we agree that a loss-prevention officer has a specific duty to prevent theft, that duty, standing alone, does not bring the gift box within the loss-prevention officer’s immediate presence. For the perfume set to be under her personal protection for the purposes of a larceny from her person, she would have had to have taken possession of the merchandise at issue before defendant pilfered it. Without this act of dominion, the perfume set remained only under the “protection” of the store. As a result, defendant did not take any property from the person of the loss-prevention officer. This provides additional support for our conclusion that the Court of Appeals properly reversed defendant’s conviction.
V THE DISSENT’S RISK-OF-ALTERCATION TEST
In explaining its interpretation of the law, the dissent describes its test for whether a taking occurs in the immediate presence of a victim as whether “a taking of such property triggers a substantial risk that a violent altercation will occur.” The most significant problem with this new test is that it expands the prohibited taking zone well beyond a person’s immediate presence and into a large and undefined area. The limits of this new prohibited taking zone are difficult to discern and likely arbitrary. A victim could plausibly observe a thief from 100 feet away and yet still have a chance of catching up to and confronting the thief if the victim chose to do so. Hence, even a taking at this distance could trigger “a substantial risk that a violent altercation will occur.” Because the typical store theft occurs well within this range, it would seem that, under the dissent’s proposed standard, most routine shoplifting incidents could be charged as larcenies from the person. That result conflicts with the established limits of the immediate presence standard.
VI. CONCLUSION
Michigan law requires a taking from the person or immediate presence of a victim to satisfy the from-the-person element for the crime of larceny from the person. This standard is satisfied when the defendant takes property that is in the physical possession of a victim or property that is in immediate proximity to a victim when the taking occurs. Only in the rare larceny-from-the-person case in which the constructive-presence exception applies may a taking outside of a victim’s immediate presence satisfy the from-the-person element. The 2004 amendments to Michigan’s robbery statute did not change these established requirements.
In this case, there was no evidence that defendant took property that was in the physical possession of or immediate proximity to the loss-prevention officer, and there was no evidence that defendant used force or threats to distance the loss-prevention officer from the property at the time of the taking. As a result, there was insufficient evidence that defendant took property “from the person” of the loss-prevention officer. The Court of Appeals properly reversed defendant’s conviction, so we affirm the judgment of Court of Appeals.
Young, C.J., and Cavanagh and McCormack, JJ., concurred with Viviano, J.
See MCL 750.530, as amended by 2004 PA 128.
At trial, Krumbhaar explained that Macy’s policy prohibits its loss-prevention officers from confronting suspected shoplifters until after they have left the store.
MCL 750.530.
MCL 750.356d.
MCL 333.7403(2)(d).
Defendant argued that the retail-fraud charge was “more indicative of what happened on the date in question[.]”
The circuit court instructed the jury on the elements of larceny from the person on the theory that this offense was a lesser included offense of robbery. As we will explain below, the court erred by giving this instruction.
(Emphasis added.) This instruction was consistent with CJI2d 23.3, the model jury instruction for this offense.
People v Smith-Anthony, 296 Mich App 413, 418; 821 NW2d 172 (2012).
Id. at 419.
Id. at 419 n 2.
Id. at 420 (citation omitted).
Id. at 432 (Whitbeck, J., dissenting).
People v Smith-Anthony, 493 Mich 879 (2012).
People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001).
Id. at 562.
Id.
People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010) (citation and quotation omitted).
See MCL 750.357 (“Any person who shall commit the offense of larceny by stealing from the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years.” [emphasis added]).
MCL 8.3a; see also Const 1963, art 3, §7 (“The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.”).
See People v McDonald, 409 Mich 110, 117; 293 NW2d 588 (1980).
Anno: What Constitutes Larceny “From a Person,” 74 ALR3d 271, 276; 8 Eliz c 4, § 2 (1565).
74 ALR3d 271, 276-277.
Perkins & Boyce, Criminal Law (3d ed, 1982), p 346, citing 3 Coke, The Third Part of the Institutes of the Laws of England (1797), p 68; 1 Hale, The History of the Pleas of the Crowns, p *533; 1 Hawkins, A Treatise of Pleas of the Crown, c 34, § 5 (6th ed).
3 Coke, p 69.
We disagree with the premise of the third question on which we granted leave to appeal in this case. In the larceny-from-the-person context, the phrase “from the person” had a more restrictive meaning at common law than “presence.”
See, e.g., People v McElroy, 116 Cal 583, 586; 48 P 718 (1897) (holding that property “shall at the time [that it was taken] be in some way actually upon or attached to the person, or carried or held in actual physical possession”); Terral v State, 84 Nev 412, 413-414; 442 P2d 465 (1968) (citation omitted) (explaining that “from the beginning [larceny from the person] required ‘an actual taking from the person; a taking from his presence was not sufficient as it was in robbery’ ”); State v Lucero, 28 Utah 2d 61, 63; 498 P2d 350 (1972) (following Terral); Wilder v State, 30 Ala App 107, 108; 1 So 2d 317 (1941) (following McElroy).
See, e.g., People v Pierce, 226 Ill 2d 470, 483; 877 NE2d 408 (2007) (recognizing the split of authority on this issue and adopting the majority view); State v Kobylasz, 242 Iowa 1161, 1166-1168; 47 NW2d 167 (1951) (recognizing that some courts require that the property be “taken off the person,” citing McElroy and Wilder, but declining to construe the larceny-from-the-person statute so narrowly and instead applying the immediate presence standard); State v Jones, 499 SW2d 236,238-240 (Mo Ct App, 1973) (following Kobylasz); Banks v State, 74 Ga App 449, 451-452; 40 SE2d 103 (1946) (construing the phrase “from the person of another” as used in both the robbery and larceny-from-the-person statutes of that state and holding that “it is unnecessary that the taking of the property should be directly from one’s person, but it is sufficient if it be taken while in his possession and immediate presence”) (emphasis added) (quotation marks and citation omitted).
State v Eno, 8 Minn 220, 223 (1863).
The dissent disagrees with this point and relies heavily on the case of People v Covelesky, 217 Mich 90; 185 NW 770 (1921), superseded by statute as recognized by People v Williams, 491 Mich 164, 171-173; 814 NW2d 270 (2012), to explain its interpretation of “from the person.” It is worth noting that Covelesky, like most of the authority cited by the dissent, involved a robbery. Moreover, the facts of Covelesky are significantly different from the larceny-from-the-person cases discussed in this opinion because that case involved a home invasion with a high degree of violence.
People v Gadson, 348 Mich 307, 309-310; 83 NW2d 227 (1957).
Id.
People v Stevens, 9 Mich App 531, 532; 157 NW2d 495 (1968).
Id. at 534 (emphasis added).
People v Johnson, 25 Mich App 258, 264; 181 NW2d 425 (1970).
Id.
We have found no other cases before this Court’s opinion in People v Gould, 384 Mich 71, 80; 179 NW2d 617 (1970), that discuss the appropriate taking standard in the larceny-from-the-person context. There are cases in which Michigan courts have applied the larceny-from-the-person statute to situations in which the victim was in physical possession of his or her property. See, e.g., People v Tucker, 222 Mich 564, 569; 193 NW 206 (1923); People v Newsom, 25 Mich App 371, 374; 181 NW2d 551 (1970). In contrast, we can find no Michigan cases applying the immediate presence standard in the larceny-from-the-person context — or even using the phrase — prior to the Court of Appeals opinion in People v Gould, 15 Mich App 83, 87; 166 NW2d 530 (1968), afFd in part and rev’d in part 384 Mich 71 (1970), where it was used for the first time and rejected as the proper standard.
Gould, 384 Mich at 80.
See People v Perkins, 473 Mich 626, 633; 703 NW2d 448 (2005); People v Beach, 429 Mich 450, 484 n 17; 418 NW2d 861 (1988); People v Chamblis, 395 Mich 408, 425; 236 NW2d 473 (1975), overruled in part on other grounds People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002) (stating, in dicta, that “[w]e are committed to the view that... larceny from the person embraces the taking of property in the possession and immediate presence of the victim”) (emphasis added).
People v Perkins, 262 Mich App 267, 272; 686 NW2d 237 (2004), aff’d 473 Mich 626 (2005) (citing CJI2d 23.3 and People v Wallace, 173 Mich App 420, 426; 434 NW2d 422 (1988) in turn quoting CJI 23:2:01) (emphasis added).
Beyond its citation to CJI2d 23.3, the Court of Appeals in Perkins cited to Wallace. However, Wallace provides no further guidance because it cites solely to CJI2d 23.3, which “dotes] not have the official sanction of this Court.” People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985).
See Perkins, 473 Mich at 633 (“In order to commit a larceny from the person, the defendant must steal something from a person in that person’s presence.”); Gould, 384 Mich at 80 (“[I]t is sufficient if the property be taken from the presence of the victim ... [that is] within his area of control.”) (Citations and quotation marks omitted).
See, e.g., United States v Kimble, 178 F3d 1163, 1168 (CA 11, 1999) (“person or presence” standard in the federal carjacking statute, 18 USCA § 2119, deemed similar to standard for robbery, was met here, as had the car owner “not been in fear for his safety, he could have reached the car and prevented its taking”); United States v Lake, 150 F3d 269, 273 (CA 3, 1998) (rational jury could have found that the car was taken from the victim’s presence where the victim “could have prevented the taking of her car if she had not been fearful that [the defendant] would shoot or otherwise harm her”); People v Blake, 144 Ill 2d 314, 320-321; 579 NE2d 861 (1991) (presence standard satisfied where the victims were immobilized on second floor of residence while property taken from first floor); Commonwealth v Stewart, 365 Mass 99, 108; 309 NE2d 470 (1974) (defendant properly convicted of robbing the victim by taking money from a safe where the victim could have prevented the taking if not intimidated by robber); State v Calhoun, 72 Iowa 432, 436; 34 NW 194 (1887) (affirming that “presence” standard was satisfied where the defendant took money and watch from the victim after binding victim in one room of her house and extorting from her the location of the money); Towner v State, 812 So2d 1109, 1113-1114 (Miss Ct App, 2002) (“presence” element satisfied where the defendant ordered two women, one employee and one co-owner, into restaurant’s office at gunpoint and took money from the office, proximity and control existed as to each woman, and thus constituted two robberies); Price v Commonwealth, 59 Va App 764, 769-770; 722 SE2d 653 (2012) (concluding that “the items taken from [the victim’s] purse located in another room of the trailer were close enough to her and sufficiently under her control that, had she not been subjected to violence and intimidation by the intruders, she could have attempted to prevent the taking of her personal items”).
Commonwealth v Homer, 235 Mass 526, 533; 127 NE 517 (1920).
Gould, 384 Mich at 80.
In Gould, this Court’s holding has caused some confusion regarding its reach — perhaps best demonstrated by the fact that the dissent in this case and the Court of Appeals majority both believe it supports their view. We take this opportunity to clarify its holding, for which the Court appears to have given alternative rationales. To the extent the larceny supporting defendant Gould’s conviction was the taking of money directly from the wallet of the customer present in the restaurant at the time of the holdup, there was an actual taking from the person. On the other hand, to the extent the larceny was the taking of money from the cash register and cigar box, after the waitress was forcibly sequestered in another room, the constructive-presence exception was applicable. We recognize that the former point could be interpreted as rendering the remainder of Gould as dicta. However, even if dicta, its holding is now well settled, and its continued validity is not at issue.
We do not believe that Gould should be read as a wholesale importation of robbery doctrine into larceny-from-the-person law, such that the presence element for each offense is coextensive. As noted, Gould applied the constructive-presence doctrine in the larceny-from-the-person context. Although it is not entirely clear how a doctrine that expands the prohibited taking zone when force or threats are present can logically be applied to a crime that does not require force or threats as an element, it is clear that Gould established the outer limit of the taking zone in larceny-from-the-person cases. However, the dissent’s interpretation, which expands the prohibited taking zone even in the absence of force or threats, goes well beyond the standard in Gould or any other case.
MCL 750.530, 1931 PA 328 (emphasis added).
MKL 750.530, as amended by 2004 PA 128 (emphasis added).
People v Randolph, 466 Mich 532, 546; 648 NW2d 164 (2002), superseded by statute as recognized by Williams, 491 Mich at 171-173.
Id.
See Williams, 491 Mich at 184.
However, the 2004 amendments have affected the relationship between robbery and larceny from the person. We have previously held that larceny from the person is a necessarily lesser included offense of robbery. Beach, 429 Mich at 484. “Necessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense.” People v Nickens, 470 Mich 622, 626; 685 NW2d 657 (2004). Under MCL 750.530(2), a defendant who uses force in fleeing a larceny is guilty of robbery. Therefore, robbery does not require that the taking have been made in the “immediate presence” of the victim. As a result, larceny-from-the-person is no longer a necessarily included lesser offense of robbery.
Perkins & Boyce, p 342 (emphasis added).
State v Barnes, 345 NC 146, 150-151; 478 SE2d 188 (1996).
People v Smith, 121 P3d 243, 247-248 (Colo App, 2005).
Garland v Commonwealth, 18 Va App 706, 710; 446 SE2d 628 (1994).
Banks, 74 Ga App at 450-452.
Kobylasz, 242 Iowa at 1166-1168.
Random House Webster’s Unabridged Dictionary (1998). The dissent interprets our opinion as saying that “only in the rare instance that property is taken by ‘use of force or threats of force to create distance between a victim and the victim’s property’ might property that is otherwise not affixed to the victim constitute a taking ‘from the person.’ ” Post at 702. Later on, the dissent states that we are essentially “equating ‘immediate presence’ with ‘attached to the person.’ ” Post at 702 n 29. This is, not true. As we ejqjlained, the immediate presence test is satisfied when a defendant takes “property from the physical person or immediate presence of a victim.” (Emphasis added.) Physical attachment is sufficient, hut not necessary to satisfy the immediate presence test.
In a larceny case, the crime is completed when the taking occurs. Randolph, 466 Mich at 543.
Smith-Anthony, 296 Mich App at 418.
See Perkins & Boyce, pp 340-341.
Id.
Post at 709.
See Perkins & Boyce, p 340 (internal citation omitted) (“If property is in the pocket of some person within the building, or under his personal care at the moment in some other way, it is not regarded as within the protection of the building.. . [and t]he stealing of such property ... [is a] larceny from the person.”).
Post at 711.
Id. While this Court has stated before that “larceny from the person involves a substantial risk of physical force,” Perkins, 473 Mich at 634, that statement was merely an explanation of the Legislature’s purpose in enacting the statute, not a description of the prohibited taking zone.
Although the dissent tries to show that its test has limits by listing “[a] few non-exhaustive examples” that do not create a substantial risk of altercation, post at 710, it is difficult to discern how these examples fail to satisfy the dissent’s own test. For example, it seems there would still be a “risk of altercation” in the case of “a security guard who observes [a theft] via closed-circuit monitor,” so long as there was still a chance that the security guard could leave the monitor and confront the thief. | [
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Mary Beth Kelly, J.
This case concerns “absolute” governmental immunity. Specifically, we consider whether a village chief of police, the highest appointive executive official of a level of government, acted within the scope of his “executive authority” when he performed the duties of an ordinary police officer and is, therefore, entitled to absolute immunity under MCL 691.1407(5) of the governmental tort liability act (GTLA), MCL 691.1401 et seq. We hold that the term “executive authority,” as used in MCL 691.1407(5), encompasses all authority vested in the highest executive official by virtue of his or her role in the executive branch, including the authority to engage in tasks that might also be performed by lower-level employees. Consistent with the plain meaning of “executive authority,” the highest executive official is entitled to absolute immunity under MCL 691.1407(5) even when performing acts that might otherwise be performed by a lower-level employee if those actions fall within the authority vested in the official by virtue of his or her role as an executive official. Because no factual dispute exists in this case with regard to whether the village chief of police had the authority to conduct an arrest in his official capacity as chief of police, we hold that the chief of police is absolutely immune from tort liability arising from his arrest of the citizen in this case. The Court of Appeals reached a contrary conclusion and, accordingly, we reverse the judgment of the Court of Appeals and remand this matter to the circuit court for entry of summary disposition in favor of village of Port Sanilac Chief of Police Rodney Jaskowski with regard to the claims against him and for further proceedings not inconsistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
On July 19, 2008, the village of Port Sanilac held its annual “Bark Shanty Festival,” an outdoor summer fundraising event involving a beer tent and several musical acts. The band HI8US was among the acts scheduled to perform. Before HI8US’s scheduled performance, volunteers working at the beer tent received numerous complaints about the allegedly offensive music. Ron Smith, the Brown City Police Chief, reported to the park after volunteers at the beer tent relayed to him the complaints about the offensive music. The organizer of the musical portion of the event also returned to the park after receiving a call informing her that festival patrons were displeased with the music.
When Smith arrived at the park, he heard individuals in the beer tent heckling the band then onstage. He also saw attendees, including families, leaving the festival, some of whom voiced their displeasure with the musical performances as they left. Several individuals also complained to Smith that they found the bands’ music “offensive, disturbing, and not appropriate for the crowd.” The Village of Port Sanilac Fire Chief, who was involved with beer tent operations, indicated he would close the beer tent if the bands’ music continued to drive patrons away. He also warned Smith that he anticipated trouble arising between the bands’ supporters and other festival attendees. Concerned about the festival’s atmosphere, Smith contacted Jaskowski to report the potential trouble. After speaking with Smith, Jaskowski went to the park and agreed with the decision to stop the bands’ performances.
Thomas Petipren, a drummer for HI8US, claims that he did not know that organizers decided to cancel the remaining musical performances and was onstage playing his normal warm-up routine when Jaskowski approached him. Petipren noticed Jaskowski appeared angry, so he stopped playing and held his drumsticks in his lap. He claimed he said nothing and simply waited to find out what Jaskowski wanted. Jaskowski then allegedly knocked over Petipren’s equipment, grabbed and threw Petipren’s drumsticks to the ground, and assaulted him, grabbing Petipren by the collar and pushing him off his seat and into a pole. Petipren claims he put his arms up and asked, “What did I do?” Jaskowski then allegedly pushed him off the stage and down onto the grass, yelling at Petipren to stop resisting. Once Petipren was face down, Jaskowski handcuffed him. When a bystander asked why Petipren was being arrested, Jaskowski had him arrested as well.
In contrast to Petipren’s version of events, Jas-kowski insists that he told Petipren to stop playing, to which Petipren responded by swearing at him and punching him in the jaw. Jaskowski then arrested Petipren. Jaskowski maintains that Petipren continued to resist while he was placed in handcuffs. Jaskowski arrested Petipren for resisting and obstructing a police officer, assaulting a police officer, and disorderly conduct, but the prosecutor ultimately declined to press any charges.
Following the incident, Petipren filed suit against the village of Port Sanilac and Jaskowski, individually and in his capacity as the chief of police. Petipren alleged assault and battery and false arrest. Several months later, Jaskowski filed a separate suit against Petipren, claiming assault and battery, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. Petipren, in turn, counterclaimed against Jaskowski, alleging intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress.
Jaskowski moved for summary disposition under MCR 2.116(C)(7) in Petipren’s original suit, and, at a later date, under MCR 2.116(C)(7), (8), and (10) in regard to Petipren’s counterclaims. In both cases, Jas- kowski asserted that he was absolutely immune under MCL 691.1407(5) of the GTLA because, in executing the arrest, he acted within his executive authority as the highest appointed executive official of a level of government. To establish his claim, Jaskowski provided the circuit court with the job description for the village of Port Sanilac chief of police and an affidavit in which he attested to his occupational duties. The job description includes a list of “ESSENTIAL DUTIES AND RESPONSIBILITIES” and identifies the “FUNCTIONAL RESPONSIBILITIES” of the police department, the latter of which include “[mjaintenance of law and order in the Village of Port Sanilac” and “[t]he enforcement of all laws of the United States, the State of Michigan, and all ordinance of such law, and ordinances of the Village of Port Sanilac.” The functional responsibilities identified in the job description also included
[p]atrol[ing] the streets of the Village of Port Sanilac,... and in doing so observing] and investigating] persons, situations or things which require attention and which affect enforcement of laws or prevention of crime. Preserving] the peace and protecting] life and property, controlling] public gatherings and performing] miscellaneous services relative to public health and safety including property checks.... Receiving] and processing] com plaints by citizens, arresting] offenders, preparing] reports and testifying] in court.[ ]
Petipren opposed the motions for summary disposition, arguing that Jaskowski was not the highest executive of a level of government and that Jaskowski had acted with an improper motive, arresting Petipren because Jaskowski was prejudiced against Petipren and his fans. The circuit court denied Jaskowski’s motion for summary disposition in Petipren’s original suit, concluding that because Jaskowski had acted with a biased motive, he had not acted within his executive authority as chief of police. On the record, the circuit court explained, “I don’t think it’s acting in a Governmental function, I don’t think it’s within the scope of authority of a Police Chief. I think it’s a personal vendetta, someone who thinks there’s a Music Fair apparently and therefore immunity is not available to Rodney Jaskowski. That motion is denied.” The circuit court also denied Jas-kowski’s claim of absolute immunity in regard to Peti-pren’s counterclaims in the second lawsuit.
Jaskowski appealed each case as of right, disputing the circuit court’s application of governmental immu nity. The Court of Appeals consolidated the appeals and, in a split, published opinion, affirmed, holding that “[w]hen a police chief acts as an ordinary police officer — that is, when the nature of the act is outside the scope of his or her executive duties — the chief is not entitled to absolute immunity simply because he or she is also the police chief.” After noting that no binding Michigan case had considered whether a police chief is entitled to absolute immunity when he or she undertakes actions performed by ordinary police officers, the Court of Appeals construed the words “executive authority,” as used in MCL 691.1407(5), to mean only those “ ‘tasks particular to [the official’s] position as the “highest appointive official.” ’ ” According to the Court of Appeals, this interpretation, which it adopted from a federal district court decision, “best reflects the legislative intent expressed in the words of [the statute].” The Court of Appeals explained:
Although a police chief may occasionally perform the duties of an ordinary police officer, the police chief is not acting within the scope of his or her executive authority as the highest executive official in the police department when doing so. Rather, the nature of the act is that of an ordinary police officer. As an ordinary police officer, he would be entitled to the immunity provided to governmental employees under MCL 691.1407(2) if all the statutory requirements were satisfied. Indeed, it would lead to an illogical result to limit a plaintiffs intentional-tort claims arising from the conduct of a police officer in those cases in which the police officer was also the police chief who was acting as an ordinary police officer at the time he or she allegedly committed the tortious act.[ ]
Given its understanding of the term “executive authority,” the Court of Appeals applied the factors relevant to determining the scope of the actor’s executive authority, articulated by this Court in American Transmissions, Inc v Attorney General, by considering only that evidence related to Jaskowski’s high-level duties, as outlined in the essential-duties section of the police chiefs job description. Because those duties “generally involve policy, procedure, administration, and personnel matters,” the Court of Appeals concluded that Jas-kowski was not acting within his executive authority when he arrested Petipren and that Jaskowski was, therefore, not entitled to absolute immunity under MCL 691.1407(5).
We granted leave to appeal, “limited to the issue whether Chief of Police Jaskowski is entitled to absolute immunity under MCL 691.1407(5).”
II. STANDARD OF REVIEW
This Court reviews de novo a circuit court’s decision regarding a motion for summary disposition. When a claim is barred by governmental immunity, summary disposition is appropriate under MCR 2.116(C)(7). Under MCR 2.116(C)(7), the moving party has the option of supporting its motion with affidavits, depositions, admissions, or other documentary evidence provided that the “substance or content” of the supporting proofs is admissible as evidence. In reviewing a motion under MCR 2.116(C)(7), we accept the factual contents of the complaint as true unless contradicted by the movant’s documentation. When the material facts are not in dispute, this Court may decide whether a plaintiffs claim is barred by immunity as a matter of law.
This case requires us to interpret MCL 691.1407(5), raising an issue of statutory interpretation that this Court reviews de novo. When construing a statute, this Court’s obligation is to discern the Legislature’s intent as expressed in the statute’s plain language. If the language is clear and unambiguous, the statute must be enforced as written without judicial construction.
III. ANALYSIS
Before the Michigan Legislature’s enactment of the GTLA, this Court’s jurisprudence recognized the existence of governmental immunity for all levels of government, including townships, cities, school districts, villages, and counties when those subdivisions were engaged in a governmental function. Our common law has also long recognized that certain individuals may enjoy immunity from tort liability, historically granting immunity to governmental “officers, employees, and agents . .. engaged in discretionary, as opposed to ministerial, acts which were within the scope of their authority.” Over time, however, our caselaw muddled the parameters of individual immunity by defining it with references to ultra vires acts and whether an individual was engaged in the exercise of a governmental function.
We thus endeavored to clarify the common law of individual immunity in Ross v Consumers Power Co (On Rehearing), in which we distinguished between the immunity available to lower-level employees and high-ranking officials. We modified the ultra vires approach for lower-level employees and required them to show that they were not only (1) acting during the course of their employment and acting or reasonably believed they were acting, within the scope of their authority; but also that they were (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts. In comparison, we identified certain high-ranking officials entitled to a broader grant of immunity, holding that “judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their judicial, legislative, or executive authority.” We thus retained an approach similar to the ultra vires approach for high-ranking officials, providing absolute immunity whenever high-ranking officials acted within the scope of their respective authority. Then, two years after Ross, the Legislature amended the GTLA, as it relates to the present dispute, by codifying Ross’s grant of absolute immunity at MCL 691.1407(5).
With this historical context in mind, we turn to the language of MCL 691.1407(5), which provides certain high-ranking officials with absolute immunity from tort liability, to determine whether Jaskowski is entitled to absolute immunity. It states:
A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.
To qualify for absolute immunity from tort liability an individual governmental employee must prove his or her entitlement to immunity by establishing, consistently with the statute’s plain language, (1) that he or she is a judge, legislator, or the elective or highest appointive executive official of a level of government and (2) that he or she acted within the scope of his or her judicial, legislative, or executive authority. In the circuit court, Petipren argued that Jaskowski was not the highest appointive executive official of a level of government. On appeal, Petipren abandoned this ar gument, leaving the sole issue before this Court as whether Jaskowski acted within the scope of his executive authority when he arrested Petipren. To determine whether Jaskowski qualifies for absolute immunity under MCL 691.1407(5) when performing the duties of an ordinary police officer while serving as the highest appointive executive official of the village, we examine the meaning of “executive authority” as interpreted in this state’s jurisprudence.
A. EXECUTIVE AUTHORITY
Petipren, like the Court of Appeals, asserts that Jaskowski engaged in activities outside the scope of his executive authority when he arrested Petipren and is therefore not entitled to absolute immunity. As the Court of Appeals acknowledged, no decision of this Court has specifically considered whether the scope of a police chiefs executive authority under MCL 691.1407(5) may include those activities also performed by ordinary officers. Further, the GTLA does not define what it means to “act[] within the scope of his or her ... executive authority,” nor has this Court expressly defined the parameters of the phrase. However, we have previously identified several factors as relevant to the determination whether an action is within the scope of an executive official’s authority. Specifically, we recognized in American Transmissions that
“[t]he determination whether particular acts are within their [executive] authority depends on a number of factors, including the nature of the specific acts alleged, the position held by the official alleged to have performed the acts, the charter, ordinances, or other local law defining the official’s authority, and the structure and allocation of powers in the particular level of government."[ ]
This list of factors, while not exhaustive, demonstrates the type of objective inquiry into the factual context that is necessary to determine the scope of the actor’s executive authority. This objective inquiry does not include analysis of the actor’s subjective state of mind. An official’s motive or intent has no bearing on the scope of his or her executive authority.
While the factors outlined in American Transmissions remain relevant to the determination whether certain acts are within the scope of an executive’s authority, they do not resolve the definitional issue regarding whether the Legislature intended “executive authority” to include activities also performed by lower-level officials or, as the Court of Appeals held, to include only duties exclusive to the elective or highest appointive executive official’s position. To resolve this issue, we turn to the statute’s plain language.
Again, MCL 691.1407(5) provides that, to claim absolute immunity, the highest appointive executive official must “act[] within the scope of his or her. . . executive authority.” We begin our analysis of the phrase “executive authority” by examining the term’s plain and ordinary meaning. “Authority” is defined as “a power or right delegated or given,” and “scope” is defined as the “extent or range of view, outlook, application, operation, effectiveness . . . .” Taken together, the words indicate that a highest appointive executive official’s scope of authority consists of the extent or range of his or her delegated executive power.
In determining what the Legislature intended by the use of the term “executive,” we are mindful of the principle that statutory words are to be “given meaning by [their] context or setting.” In context, the words “executive authority” appear as the counterpart to the statute’s reference to “judicial” and “legislative” authority. Specifically, the statute grants immunity to certain high-level officials when they act within the scope of their “judicial, legislative, or executive authority.” Because the words are grouped together in a list, we assume those words were intended to have a related meaning. By using the term “executive” in conjunction with the terms “judicial” and “legislative,” the Legislature plainly referred to the axiomatic power division among the three branches of government— legislative, executive, and judicial. This reference to the three branches of government parallels the statute’s earlier description of who may claim absolute immunity, namely: “[a] judge, a legislator, and the elective or highest appointive executive official of all levels of government. ...” In both instances, the term “executive” appears in MCL 691.1407(5) as a reference to the executive branch of government, thereby referring to the authority exercised by individuals in that branch of government. In a similar fashion, the statute envisions a legislator’s exercise of legislative authority and a judge’s exercise of judicial authority. Nowhere does the statute contain any indication that the “executive authority” exercised must be exclusive to the elective or highest appointive official in order for that official to claim absolute immunity.
We therefore hold that “executive authority” as used in MCL 691.1407(5) means all authority vested in the highest executive official by virtue of his or her position in the executive branch. In so concluding, we reject other possible interpretations of the term “executive,” including the notion proposed by the Court of Appeals, Petipren, and the dissent that it should be read as referring to high-level administrative or supervisory functions particular to an executive’s office. That interpretation ignores the context in which the term “executive” is used. In context, the term “executive authority” does not contemplate whether the highest appointive executive official performed high-level duties exclusive to his or her position, but simply whether the official exercised authority vested in the official by virtue of his or her role in the executive branch.
In reaching the contrary conclusion, the Court of Appeals failed to undertake any explication of the statute’s plain language and relied instead on a federal district court decision, Scozzari v City of Clare. In that case, a city police chief sought absolute immunity under MCL 691.1407(5) from numerous tort claims resulting from a shooting death that had occurred when the chief attempted to arrest the decedent. The federal court rejected the police chiefs claim of absolute immunity, reasoning that “[t]he Chief does not address the fact that he appears to have been acting in his capacity as an officer on patrol, rather than performing any tasks particular to his position as the ‘highest appointive official.’ ” In our view, Scozzari is devoid of any persuasive value: the court engaged in no statutory analysis and simply dismissed the police chiefs assertion of absolute immunity in light of his failure to address the implications of the fact that he had acted as an ordinary officer. Further, the implicit holding of Scozzari, that absolute immunity is only available when an official performs acts unique to his or her position as the highest executive official, is detached from the plain language of the statute, as we have previously explained. In any case, Scozzari is a decision of a lower federal court, and we are not bound to follow it.
The Court of Appeals also erroneously justified its holding on the basis of what it perceived as an “illogical result.” According to the Court of Appeals, it would be illogical to confer absolute immunity on a police chief who was acting as an ordinary officer because an ordinary officer engaged in the same conduct would be entitled only to the qualified immunity offered by MCL 691.1407(2) or, in the case of an intentional tort, the common-law immunity described in Ross. Yet this outcome is exactly what the Legislature intended when it distinguished between the absolute immunity avail able to those actors at the highest levels of government and the lesser immunity available to those actors who are lower-level employees. While it is true that lower-level actors and high-ranking officials may possess some overlapping authority and, at times, engage in the same governmental conduct, MCL 691.1407(5) includes no indication that the absolute immunity granted to high-ranking officials is not absolute when their authority encompasses conduct that might also be performed by a lower-level employee. To adopt the Court of Appeals’ understanding of executive authority would eviscerate the Legislature’s clear intent to completely insulate individuals at the highest levels of government from tort liability when they are acting within the scope of their official authority. While the Court of Appeals viewed this result as illogical, the propriety of the Legislature’s decision to treat individuals differently on the basis of their official positions is a question of policy for the Legislature, not this Court.
Accordingly, the Court of Appeals erred when it interpreted “executive authority” to include only those high-level tasks exclusive to the official’s position. Rather, we hold, consistent with the plain meaning of “executive authority,” that the highest appointive executive official is entitled to absolute immunity under MCL 691.1407(5) even when performing the acts of a lower-level employee if those actions are within the authority vested in the official by virtue of his or her role as an executive official.
B. APPLICATION
Our analysis does not end with our determination that the term “executive authority” in MCL 691.1407(5) refers to all those powers vested in the highest executive official by virtue of his or her role as an executive official, which may also include those functions performed by lower-level employees. Because the specific acts alleged involve Jaskowski’s arrest of Petipren, we consider whether Jaskowski’s executive authority actually included the ability to conduct an arrest. This inquiry requires consideration of the factors articulated in American Transmissions, including “ ‘the nature of the specific acts alleged, the position held by the official alleged to have performed the acts, the charter, ordinances, or other local law defining the official’s authority, and the structure and allocation of powers in the particular level of government.’ ”
In this case, there is no factual dispute regarding the duties Jaskowski’s position required him to perform or that, by virtue of his position as chief of police, Jas-kowski was also a police officer, meaning that he possessed the power of any ordinary officer to conduct an arrest. By statute, village police officers are vested “with authority necessary for the preservation of quiet and good order in the village.” As officers charged with the preservation of public peace, village police officers possess statutory authority to conduct an arrest. As chief of police, Jaskowski was also charged with the duty to “see that all the ordinances and regulations of the council, made for the preservation of quiet, and good order, and the protection of persons and property, are promptly enforced.”
In addition to this statutory authority to conduct an arrest, Jaskowski presented to the circuit court his job description, as provided to him by the Port Sanilac Village Council, detailing his duties and responsibilities. Of particular relevance are the sections of the job description describing the functional responsibilities of the police department, which include “[mjaintenance of law and order in the Village of Port Sanilac” and “[t]he enforcement of all laws of the United States, the State of Michigan, and all ordinance of such law, and ordinances of the Village of Port Sanilac.” Most significantly, these responsibilities also include a duty to “[pjreserve the peace . . ., control public gatherings,” “[rjeceive and process complaints by citizens,” and “arrest offenders . .. .”
Similarly, in an undisputed affidavit, Jaskowski quotes the job description and avers that his duties included patrolling the streets of the village and doing the following in the course of his patrolling:
“[olbserve and investigate persons, situations or things which require attention and which affect enforcement of laws or prevention of crime. Preserve the peace and protect life and property, control public gatherings and perform miscellaneous services relative to public health and safety including property checks.... Receive and process complaints by citizens, arrest offenders, prepare reports and testify in court.”[ ]
Taking this evidence as a whole, there is no genuine issue of material fact with regard to whether Jaskowski possessed the authority to conduct an arrest and act for the preservation of peace in his official capacity as chief of police. Where, as here, the highest appointive executive official acts within the authority vested in the official by virtue of his or her executive position and there are no questions of material fact, that official is entitled to absolute immunity as a matter of law.
The Court of Appeals erroneously affirmed the circuit court’s denial of summary disposition when it incorrectly construed the term “executive authority” as including only high-level tasks exclusive to an executive’s position. The Court of Appeals thereby disregarded all the evidence relevant to this inquiry, except for the essential duties listed in the job description for the position of chief of police. However, for reasons we have explained, there is no basis in the language of MCL 691.1407(5) for concluding that the highest executive official acts outside the scope of his or her executive authority when undertaking a task performed by lower-level employees, which is also undisputedly a task he or she is authorized to perform. That those activities might also be undertaken by lower-level employees does not alter the analysis for determining the scope of an official’s executive authority.
The circuit court’s reason for denying summary disposition — that Jaskowski acted with personal animus — is also erroneous. Petipren implicitly resur rects this argument on appeal by offering extensive discussion of the circumstances surrounding his arrest, but as we have made clear, an actor’s intent and motivation have no bearing on the scope of his or her executive authority under MCL 691.1407(5). In sum, because the power to arrest unquestionably falls within the scope of Jaskowski’s executive authority under MCL 691.1407(5), as a matter of law, Jaskowski is absolutely immune from tort liability stemming from Petipren’s arrest, and the lower courts erred by denying Jaskowski’s motions for summary disposition.
IV RESPONSE TO THE DISSENT
The dissent’s main concern with our holding is that it “remov[es]” the statutory language from its context and returns Michigan’s approach to individual absolute immunity to an “ultra vires” test that grants immunity based on the official’s high-level status. However, in formulating its preferred holding, that the absolute immunity provided for under MCL 691.1407(5) is limited to “a specific subset of authority,” the dissent reads “executive authority” in a manner isolated from the context in which it is used. By focusing only on the terms that directly modify the word “authority,” the dissent ignores the necessary parallel between the official’s position and his or her judicial, legislative, or executive authority and thereby fails to afford meaning to every word in the statute. Further, by overlooking the term “executive” as a clear reference to the authority exercised by those in the executive branch of government and instead defining it as a specific subset of high-level duties related to “administrative or managerial responsibilities],” the dissent reads additional requirements into the statute that do not exist. It is therefore the dissent that has “transform[ed]” the grant of absolute immunity to something other than the official’s “executive authority” as intended by the Legislature.
Similarly unpersuasive is the dissent’s complaint that our holding grants absolute immunity to high-level officials simply because they are “cloaked with the title of a high-level executive.” This accusation plainly oversimplifies our holding; any high-level executive official acting outside his or her executive authority, as we have defined it, is not entitled to absolute immunity. The dissent also protests that we have returned Michigan’s approach to individual absolute immunity to an “ultra vires” test, which according to the dissent “was rejected by Ross . . . and, subsequently, the Legislature ... .” However, a closer reading of Ross reveals that this Court merely criticized that approach and rejected it as to lower-level employees, not high-level judicial officers, legislators, and executive officials. To the extent it can be said that the Legislature codified the absolute indi vidual immunity articulated in Ross, it did not reject the ultra vires test. Indeed, given the plain language of MCL 691.1407(5), the Legislature’s codification of absolute immunity with regard to high-level officials is consistent with the ultra vires approach and is precisely necessary to protect high-level officers’ unfettered decision-making.
In short, there is no support in the law for the dissent’s characterization of our holding as adopting a rule of individual absolute immunity that radically departs from the statutory language and that has supposedly been rejected by the Legislature. Rather, it is the dissent’s view that would depart from the statutory language and it is the dissent’s view that would adopt a test not recognized anywhere in Michigan law. Indeed, our review of the caselaw reveals no authority, aside from the Court of Appeals decision in this case, confining individual absolute immunity to a subset of high-level authority.
V CONCLUSION
The term “executive authority,” as used in MCL 691.1407(5), encompasses all authority vested in the highest appointive executive official of a level of govern ment by virtue of his or her role in the executive branch, including the authority vested in the official to engage in tasks that might also be performed by lower-level employees. Under the statute’s plain terms, when the highest appointive executive official of a level of government acts within the scope of his or her executive authority, the official is entitled to absolute immunity. Because there is no genuine issue of material fact that Jaskowski’s executive authority encompassed the authority to preserve the peace and conduct an arrest, Jaskowski is absolutely immune under MCL 691.1407(5) from tort liability arising from Petipren’s arrest. For this reason, we reverse the Court of Appeals’ conclusion to the contrary and remand this matter to the circuit court for entry of judgment in favor of Jaskowski in Sanilac Circuit Court Docket No. 09-032990-NO, for entry of judgment in favor of Jas-kowski on Petipren’s counterclaims in Sanilac Circuit Court Docket No. 10-033374-NO, and for further proceedings not inconsistent with this opinion.
Young, C.J., and Zahra, J., concurred with Kelly J.
The circuit court dismissed the claims against the village after determining that the village was immune from liability under MCL 691.1407(1), which provides immunity to governmental agencies engaged in governmental functions.
Sanilac Circuit Court Docket No. 09-032990-NO.
Sanilac Circuit Court Docket No. 10-033374-NO.
In regard to Petipren’s negligence-based counterclaims, Jaskowski also asserted that he was entitled to the governmental immunity available to all officers and employees of governmental agencies under MCL 691.1407(2) because Petipren failed to allege gross negligence. See Odom v Wayne Co, 482 Mich 459, 479-480; 760 NW2d 217 (2008). Relying on Odom., Jaskowski also maintained that Petipren’s intentional-infliction-of-emotional-distress counterclaim must be dismissed because Jaskowski had acted in good faith, he acted or reasonably believed he was acting within the scope of his authority, and the arrest was discretionary in nature, thereby entitling him to the immunity available to lower-level employees under MCL 691.1407(2).
Emphasis omitted.
The job description’s essential duties and responsibilities involve employment decisions, administrative tasks, policy and procedural decisions, and the general authority to “[m]ake[] decisions and take[] necessary actions.”
The circuit court likewise declined to dismiss Petipren’s intentional-infliction-of-emotional-distress counterclaim under MCR 2.116(0(10), finding an issue of fact remained concerning whether Jaskowski’s conduct could be characterized as “extreme and outrageous” and whether he acted in good faith as required by Odom. The circuit court dismissed Petipren’s negligence and negligent-infliction-of-emotional-distress counterclaims under MCR 2.116(C)(8), but it allowed Petipren to amend his countercomplaint to state a claim of gross negligence, which he did. As a result, the remaining claims to be resolved include Petipren’s claims of assault and battery and false arrest and his counterclaims for intentional infliction of emotional distress and gross negligence.
Petipren v Jaskowski, 294 Mich App 419, 432; 812 NW2d 17 (2011) (emphasis added).
Id. at 431, quoting Scozzari v City of Clare, 723 F Supp 2d 945, 967 (ED Mich, 2010). In adopting Scozzari’s interpretation of “executive authority,” the Court of Appeals rejected the reasoning of an unpublished Court of Appeals opinion, which held that “a police chiefs ‘executive authority’ includes his duties as a high ranking executive as well as his ordinary duties as a police officer.” Lewkowicz v Poe, unpublished opinion per curiam of the Court of Appeals, issued May 15, 2001 (Docket No. 216307), p 2. The panel of the Court of Appeals addressing this case determined that Lewkowicz was unpersuasive given that, in Lewkowicz, the police chief was directed to attend a city council meeting “in his official capacity as police chief....’’ Petipren, 294 Mich App at 431 (emphasis omitted).
Id.
Id. at 432-433.
American Transmissions, Inc v Attorney General, 454 Mich 135, 141; 560 NW2d 50 (1997), quoting Marrocco v Randlett, 431 Mich 700, 710-711; 433 NW2d 68 (1988).
Petipren, 294 Mich App at 427-429. The Court of Appeals recognized that the job description also included a section setting forth the functional responsibilities of the police department, which are equivalent to the duties of an ordinary police officer, and that Jaskowski submitted an affidavit stating that his duties included those functional responsibilities. However, the Court of Appeals dismissed the significance of this evidence because “the fact that Jaskowski performed those functions does not place the functions within the scope of the executive duty of the police chief; rather, they remain within the scope of the functional responsibilities of the police department generally.” Id. at 432 n 6.
Id. at 429, 432-433.
Petipren v Jaskowski, 491 Mich 913 (2012).
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998).
Maiden, 461 Mich at 119.
Id.
See Robinson v Detroit, 462 Mich 439, 445; 613 NW2d 307 (2000); see also Guider v Smith, 431 Mich 559, 572; 431 NW2d 810 (1988) (noting a case should proceed to trial if there is a question of fact that would affect the availability of immunity).
Odom, 482 Mich at 467.
Driver v Naini, 490 Mich 239, 246-247; 802 NW2d 311 (2011).
Id. at 247.
See Pohutski v City of Allen Park, 465 Mich 675, 682; 641 NW2d 219 (2002) (citation omitted); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 605, 695; 363 NW2d 641 (1984).
Ross, 420 Mich at 626. Discretionary acts require “personal deliberation, decision, and judgment,” whereas ministerial acts constitute “an obedience to orders or the performance of a duty in which the individual has little or no choice.” Id. at 634. The distinction between the two is that “the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making.” Id. at 635.
As we explained in Ross, “ultra vires activities are those which are unauthorized and outside the scope of employment.” Id. at 631. In Ross, we criticized the ultra vires approach because, under the state of the law at that time, the ultra vires approach granted immunity to every public employee acting within the scope of employment regardless of whether he or she was engaged in a ministerial or discretionary act. In Ross, we also expressly disavowed the “governmental function” approach, which granted individual immunity if the individual’s actions were not ultra vires and were within the scope of the discharge of a governmental function. We explained that individual immunity could not be defined in reference to simply whether the tortfeasor was engaged in a governmental function. Id.
Id. at 633-634.
Id. at 633.
In this regard, we disagree with the dissent’s characterization of Ross as rejecting the ultra vires approach to individual absolute immunity.
See Odom, 482 Mich at 469 (explaining the legislative action post-Ross).
MCL 691.1407(5); see also Marrocco, 431 Mich at 710-711 (recognizing that executive officials “are not immune from tort liability for acts not within their executive authority”); Odom, 482 Mich at 479 (recognizing that entitlement to governmental immunity must be established as an affirmative defense).
Contrary to Petipren’s arguments in the circuit court, caselaw recognizes that a chief of police, as head of the police department, qualifies as the highest appointive executive official of a level of government. See, e.g., Payton v Detroit, 211 Mich App 375, 394; 536 NW2d 233 (1995) (“[W]hen acting in his executive authority, the police chief of the City of Detroit is absolutely immune from tort liability.”); Washington v Starke, 173 Mich App 230, 240-241; 433 NW2d 834 (1988) (holding that the highest executive in the city’s police department was entitled to absolute immunity); Meadows v Detroit, 164 Mich App 418, 427; 418 NW2d 100 (1987) (holding that the chief of police was absolutely immune from tort liability).
Several decisions cited by the Court of Appeals considered whether conduct, such as supervisory decisions, employment decisions, and public comments, fell within a police chiefs executive authority. See Bennett v Detroit Police Chief, 274 Mich App 307, 313-315; 732 NW2d 164 (2007); Washington, 173 Mich App at 241; Meadows, 164 Mich App at 427. However, as the Court of Appeals acknowledged, none of these decisions considered whether executive authority includes actions that might also be performed by lower-level officers. For this reason, these cases do not directly address the issue presented in the current case.
American Transmissions, 454 Mich at 141, quoting Marrocco, 431 Mich at 711.
Id. at 143 n 10.
Id. at 141-143 (recognizing that the Legislature did not provide a malevolent-heart exception to the grant of absolute immunity contained in MCL 691.1407(5) and rejecting a Court of Appeals decision that introduced concepts of intent and motive into the absolute-immunity context).
See id.
See Driver, 490 Mich at 246-247.
Random House Webster’s College Dictionary (2001); see also Backus v Kauffman (On Rehearing), 238 Mich App 402, 409; 605 NW2d 690 (1999).
Tyler v Livonia Pub Sch, 459 Mich 382, 390-391; 590 NW2d 560 (1999) (“Contextual understanding of statutes is generally grounded in the doctrine of noscitur a sociis: ‘[i]t is known from its associates!.]’ ”); see also Hamed v Wayne Co, 490 Mich 1, 8; 803 NW2d 237 (2011) (“We read the statutory language in context and as a whole, considering the plain and ordinary meaning of every word.”).
Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 533; 697 NW2d 895 (2005), citing Third Nat’l Bank in Nashville v Impac Ltd, Inc, 432 US 312, 322; 97 S Ct 2307; 53 L Ed 2d 368 (1977).
See Const 1963, art 3, § 2 (“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.”); People v Salsbury, 134 Mich 537, 547-548; 96 NW 936 (1903) (“In government ‘executive’ is distinguished from ‘legislative’ and ‘judicial;’ ‘legislative’ being applied to the organ or organs of government which make the laws, ‘judicial’ to that which interprets and applies the laws, and ‘executive’ to that which carries them into effect.”) (citations and quotation marks omitted).
Contrary to the dissent’s suggestion, in adopting this construction of the term “executive authority,” we do not discard the factors discussed in American Transmissions, 454 Mich at 141. Our holding today merely clarifies that conduct is not excluded from the scope of an official’s executive authority simply because it is not exclusive to the official’s position. Indeed, it is the dissent that effectively disregards these factors by advancing an interpretation that there is some “specific and limited subset” of “truly executive” authority.
See Petipren, 294 Mich App at 431-432, discussing Scozzari, 723 F Supp 2d at 967.
Scozzari, 723 F Supp 2d at 967.
Id. In this regard, we agree with the Court of Appeals dissent’s criticism of the majority’s reliance on Scozzari, because, in the dissent’s words, the “pivotal basis of the [Scozzari] court’s holding was that the defendant [unlike Jaskowski] failed to address whether his authority extended to those also exercised by a patrol officer.” Petipren, 294 Mich App at 436 n 3 (Murray, P.J., dissenting). In other words, Scozzari is readily distinguishable from the instant matter.
Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
Ross, 420 Mich 567. In Odom, this Court summarized the availability of immunity for lower-level employees. We explained that, in cases of negligence, to qualify for immunity under MCL 691.1407(2), the governmental employee must show:
(a) the individual was acting or reasonably believed that he was acting within the scope of his authority,
(b) the governmental agency was engaged in the exercise or discharge of a governmental function, and
(c) the individual’s conduct [did not] amountQ to gross negligence that was the proximate cause of the injury or damage. [Odom, 482 Mich at 479-480.]
In comparison, we recognized that immunity is available to lower-level employees against claims of an intentional tort if the employee can satisfy the common-law immunity described in Ross by showing the following:
(a) The acts were undertaken during the course of employment and the employee was acting, or reasonably believed that he was acting, within the scope of his authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice, and
(c) the acts were discretionary, as opposed to ministerial. [Id. at 480, discussing Ross, 420 Mich at 633-634.]
The dissent effectively eviscerates these distinct levels of protection by reading MCL 691.1407(2) and MCL 691.1407(5) together to mean that high-level officials are merely entitled to qualified immunity if they are not acting within their limited subset of high-level authority. The dissent’s interpretation, however, is not supported by a reading of subsections (2) and (5) together, but rather hinges entirely on the premise that “executive authority” under subsection (5) includes only a subset of high-level duties. Once this premise is rejected, as it must be given the plain language of subsection (5), there is nothing in the language of either subsection (2) or subsection (5), singly or together, to indicate that a high-level official is entitled to only qualified immunity for conduct outside the supposed subset of high-level duties. Regarding this point, we disagree with the dissent’s suggestion that we have not given its interpretation a “faithful reading.” We have simply concluded that the dissent’s interpretation does not adhere to the plain language of the statute.
See Robertson v DaimlerChrysler Corp, 465 Mich 732, 759; 641 NW2d 567 (2002) (“[The] judicial role precludes imposing different policy choices than those selected hy the Legislature ....”) (quotation marks and citation omitted); Gilliam v Hi-Temp Prod, Inc, 260 Mich App 98, 109; 677 NW2d 856 (2003) (“The fact that a statute appears to be impolitic, unwise, or unfair is not sufficient to permit judicial construction. The wisdom of a statute is for the determination of the Legislature and the law must be enforced as written.”).
American Transmissions, 454 Mich at 141, quoting Marrocco, 431 Mich at 711. Notably, on the basis of its erroneous understanding of the term “executive authority,” the Court of Appeals wrongly disregarded all the evidence relevant to this inquiry except for the essential duties of Jaskowski’s job description.
Petipren recognizes that Jaskowski is the chief of police, and he does not challenge the accuracy of the police chief job description or the veracity of Jaskowski’s affidavit describing his obligations as chief of police.
MCL 70.14. They are similarly vested “within the village ... with all the powers conferred upon sheriffs for the preservation of quiet and good order ....” MCL 70.16.
MCL 70.14 (authorizing village police to “suppress ... disturbances, and breaches of the peace,” and to “apprehend upon view any person found violating a state law or village ordinance in a manner involving a breach of the peace”); MCL 764.15(1) (describing the circumstances in which a “peace officer” may conduct an arrest without a warrant); see also People v Bissonette, 327 Mich 349, 356; 42 NW2d 113 (1950) (defining the term “peace officer” as generally including “sheriffs and their deputies, constables, marshals, members of the police force of cities, and other officers whose duty is to enforce and preserve the public peace”) (quotation marks and citation omitted).
MCL 70.15.
Emphasis added. The job description is rife with additional indications that in the village of Port Sanilac, the chief of police is expected to partake in those functions of a typical patrol officer. For example, the chief is expected to use guns, batons, handcuffs, police radios, Tasers, radar, and patrol car computers and aggressively operate a patrol car in emergencies. The job description also specifically advises that “physical intervention techniques may be necessary” and that the chief of police needs to be able to run and lift 300 pounds. The chief of police is also said to have a “[h]igh risk” of exposure to bloodborne pathogens, stemming from frequent and direct contact with individuals who might be carriers.
Emphasis added.
See American Transmissions, 454 Mich at 143-144.
In further support of its interpretation, the dissent proposes that the Legislature’s codification of absolute immunity after our decision in Ross evinces a legislative intent to protect only a subset of high-level authority involving broad decision-making power. However, it is a fundamental principle of statutory interpretation that the Legislature speaks through the language used, Driver, 490 Mich at 246-247, and, as explained, the statutory language at issue does not protect only a subset of executive authority. Indeed, it is not our role to speculate whether the Legislature adopted the reasoning of the authorities that the Ross Court cited in support of its holding. Given the plain language of MCL 691.1407(5), it is thus irrelevant whether the members of the Ross Court intended that absolute immunity extend only to a subset of high-level decision-making authority. Therefore, the dissent’s reliance on Ross to support its interpretation of “executive authority” is misplaced.
Although the dissent contends that Ross “rejected” the ultra vires approach, this assertion has not been supported with citation to an express statement to this effect from Ross. At most, Ross indicated that the ultra vires approach had “its drawbacks.” Ross, 420 Mich at 631.
The dissent claims that our definition of “executive authority” as encompassing “all authority” “extends absolute immunity beyond its purpose ....” However, the unworkability of the dissent’s approach demonstrates exactly why the dissent’s interpretation would hinder “ ‘unfettered governmental decision-making,’ ” Ross, 420 Mich at 632 (citation omitted), and why our holding is entirely consistent with the purpose of absolute immunity. Mainly, to adopt the dissent’s definition of “executive authority” as including only a “specific subset of authority,” would place officials in the untenable position of continually attempting to discern which of their executive actions are somehow more executive than others so as to fall into the protected “subset” of executive authority. In the face of that uncertainty, high level officials would undoubtedly be constrained in their decision-making. | [
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Viviano, J.
In these consolidated cases, we address the application of Michigan’s statutory apportionment formula for individuals with flow-through business income under the Michigan Income Tax Act (ITA). In both cases, the individual taxpayers received income from in-state and out-of-state, flow-through businesses. The Michigan Department of Treasury (Department) refused the taxpayers’ attempts to combine the flow-through income from their respective businesses and then apportion the income using the businesses’ combined apportionment factors, and instead required the income of each entity to be apportioned separately.
We hold that the ITA does not prohibit individual taxpayers from combining the profits and losses from unitary flow-through businesses and then apportioning that income on the basis of the businesses’ combined apportionment factors. Moreover, we hold that the ITA did not limit apportionment of income to domestic businesses during the 1994 and 1995 tax years, and that the apportionment could properly be applied to a foreign entity to the extent that the foreign entity and the individual taxpayer’s in-state business were unitary.
Accordingly, (1) we reverse the Court of Appeals’ judgment in Malpass and reinstate the order entered by the Court of Claims granting summary disposition in favor of the Malpasses, and (2) we affirm the Court of Appeals’ judgment in favor of the Wheelers.
I. FACTS AND PROCEDURAL HISTORY
A. MALPASS v DEPARTMENT OF TREASURY
Plaintiffs, individual members of the Malpass family, owned and operated East Jordan Iron Works (East Jordan), an iron foundry in East Jordan, Michigan. They also owned and operated Ardmore Foundry, Inc. (Ardmore), an iron foundry in Ardmore, Oklahoma. Both were Michigan corporations. Because of their S-corporation classification under the Internal Revenue Code, all profits and losses flowed through the corporation to the family members individually.
For the tax years of 2001, 2002, and 2003, East Jordan operated at a profit and Ardmore operated at a loss. In their initial returns, the Malpasses treated the companies as separate, non-unitary entities. Accordingly, the Mal-passes attributed East Jordan’s income to Michigan and Ardmore’s losses to Oklahoma. The Malpasses then amended their returns for the 2001, 2002, and 2003 tax years, treating East Jordan and Ardmore as a unitary business, and combining East Jordan’s profits with Ard-more’s losses. The combined amount from the unitary business was then apportioned to Michigan on the basis of the Michigan apportionment factors, resulting in claims for refunds totaling over $1 million.
After the Department rejected the Malpasses’ amended returns, the individual taxpayers brought actions in the Court of Claims. The actions were consolidated, and on November 19, 2009, the Court of Claims granted summary disposition in favor of plaintiffs. The Court of Claims determined that East Jordan and Ardmore were a unitary business on the basis of an undisputed affidavit. It then concluded that the unitary business principle applied to the ITA and that the Malpasses could first combine the income and losses of East Jordan and Ardmore and then apportion the aggregate.
In a published opinion, the Court of Appeals reversed, concluding that East Jordan and Ardmore were separate and legally distinct business entities and that the ITA did not allow for combined reporting of separate entities. The Court of Appeals concluded that the Malpasses had received income from two separate businesses and were required to apportion the income of each entity separately.
B. WHEELER v DEPARTMENT OF TREASURY
Members of the Wheeler family were shareholders of Electro-Wire Products, Inc. (Electro-Wire), a Michigan-based S-corporation that made electrical systems. Electro-Wire acquired the assets of Temic Telefunken Kabelsatz, GmbH, a German company. The asset purchase resulted in two general partnerships: Temic Telefunken Kabelsatz, GmbH (TKG), the operating partnership, and Electro-Wire Products, GmbH (EWG), the holding partnership. The end result of the acquisition was one S-corporation (Electro-Wire) and two general partnerships (TKG and EWG), with all the income and losses passing through to the owners as individual income.
For the tax years 1994 and 1995, the Wheelers reported the pass-through Electro-Wire income on their individual tax returns; the income included partnership income from TKG. The Wheelers treated the businesses as unitary and then apportioned the income using the combined apportionment factors of both companies. After an audit and a determination that the unitary business principle did not apply to individual taxpayers, the Department required the Wheelers to apportion the income stemming from Electro-Wire on the basis of Electro-Wire’s apportionment factors and to disregard TKG’s factors, resulting in liabilities and interest totaling over $2 million.
The Tax Tribunal granted summary disposition in favor of the Wheelers, finding that there was no language in the ITA that supported the Department’s assertion that the unitary business principle applied only on a separate-legal-entity level. In a published opinion, the Court of Appeals affirmed, concluding that the Wheelers could use combined reporting under the ITA and that the apportionment could extend to foreign-business activity that was unitary with its Michigan business. The Court of Appeals also concluded that Electro-Wire and TKG were a unitary business.
II. STANDARD OF REVIEW
In Malpass, we review de novo the trial court’s decision on a motion for summary disposition. Our review of the Tax Tribunal’s decision in Wheeler is limited. In the absence of fraud, we review a Tax Tribunal decision for “misapplication of the law or adoption of a wrong principle.” We consider the Tax Tribunal’s factual findings conclusive if they are “supported by competent, material, and substantial evidence on the whole record.” However, we review issues of statutory interpretation de novo.
III. ANALYSIS
A. FORMULARY APPORTIONMENT IN MICHIGAN
The Due Process Clause of the Fourteenth Amendment imposes two requirements on a state’s taxation of a business operating in interstate commerce: “a ‘minimal connection’ between the interstate activities and the taxing State, and a rational relationship between the income attributed to the State and the intrastate values of the enterprise.” A state is not required to isolate a business’s intrastate activities from its interstate activities; instead, “it may tax an apportioned sum of the corporation’s multistate business if the business is unitary.” This latter concept, known as the unitary business principle, has been referred to as the “linchpin of apportionability.” It allows a state to “tax multistate businesses ‘on an apportionable share of the multistate business carried on in part in the taxing state.’ ”
Our state has adopted formulary apportionment for individual taxpayers in the ITA. Recognizing that Michigan is a formulary apportionment state, however, does not resolve the issue in this case because there are at least two different methods of applying the apportionment formula. First, a state may use separate-entity reporting, which requires each entity with a nexus to the taxing state to be considered as a separate and distinct entity, regardless of whether it could comprise a unitary business with other entities. Alternatively, a state may use combined reporting, which requires “each member of a group carrying on a unitary business [to] computet] its individual taxable income attributable to activities in [the state] by taking a portion of the combined net income of the group through the utilization of combined apportionment factors.” The question in this case is whether the ITA prohibits individual taxpayers from using combined reporting.
To answer this question, we turn first to the statutory language. Our goal in interpreting a statute “is to give effect to the Legislature’s intent, focusing first on the statute’s plain language.” In so doing, we examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme.
Under the ITA, an individual taxpayer’s entire income is taxable in Michigan if it is derived solely from activity within the state. However, if the income is derived from business activity taxable both within and without this state, the ITA requires an individual taxpayer to “allocate and apportion his net income . . . .” The ITA further states that, “[f]or a resident individual,... all taxable income from any source whatsoever, except that attributable to another state under [MCL 206.111 to MCL 206.115] and subject to [MCL 206.255], is allocated to this state.” Section 115, the only one of these sections applicable here, provides: “All business income, other than income from transportation services shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator which is 3.” The ITA defines “business income” as “income arising from transactions, activities, and sources in the regular course of the taxpayer’s trade or business . . . .”
These provisions require an individual taxpayer with business income stemming from business activity both within and outside of the state to allocate and apportion “[a]ll business income” using the formula contained in MCL 206.115. Section 115 is unambiguous — it plainly provides for the application of formulary apportionment. However, the statute does not require that any particular method of apportionment be used — it is silent on this question. When, as here, “the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted.” Although section 115 does not require or prohibit any particular method of applying the statutory formula, the phrase, “[a]ll business income .. . shall be apportioned!,] ” is certainly broad enough to encompass either of the approaches advocated by the parties. ■
The Department argues that combined reporting is prohibited because it is not expressly authorized in the ITA for individual taxpayers, like it is for corporate taxpayers. However, the Department’s argument is flawed. The argument is self-defeating because the ITA does not expressly authorize either method of reporting. Moreover, the provision of the corporate tax law applicable at the time of these returns, MCL 208.77(1), allowed for combined or consolidated returns by multiple corporate entities engaged in affiliated business that would otherwise be required to file separate returns. This is because Michigan imposes corporate taxes at the entity level; thus, absent a combined filing provision, unitary corporations would lack a means to file a single combined return. By contrast, income for individuals is already disbursed from the income-producing entities, aggregated by the taxpayer at the time of filing, and included on a single return. Thus, while the Legislature has included a combined return provision in the corporate tax code, such a provision is unnecessary for individual taxpayers, because they are already required to aggregate all their income on a single return.
The Department also argues that it has always required the use of separate-entity reporting and has never approved combined reporting. Although the Department has certain rule-making authority, in this case, the Department has not promulgated a rule requiring separate-entity reporting for individual taxpayers. To the extent that the Department has interpreted the statute to prohibit combined reporting, that interpretation is inconsistent with the broad scope of section 115; therefore, it “ ‘conflicts] with the indicated spirit and purpose of the legislature.’ ”
Faced with a statutory provision that is broad enough to encompass both reporting options — but does not choose between them — the Department asks this Court to adopt its preferred methodology. However, we decline this invitation to engage in interstitial rule making because “[t]o supply omissions transcends the judicial function.” Instead, in the absence of a policy choice by the Legislature, we conclude that the ITA permits either reporting method.
In sum, we reject the Department’s position that the ITA requires separate-entity reporting. Instead, we hold that combined reporting is permitted by the ITA because it satisfies the clear statutory mandate that “[a]ll business income . . . shall be apportioned to this state .. . ,”
B. THE ITA’S APPLICATION TO FOREIGN ENTITIES
Beyond our determination that an individual taxpayer can use combined reporting for flow-through business income, we also must consider whether this method could extend geographically outside the United States during the tax years of 1994 and 1995. In Wheeler, the Department argues that even if combined reporting is permitted under the ITA, it does not apply to a foreign entity that is unitary with a domestic business taxable in Michigan. Again, our analysis of this issue begins with the statute’s text.
The statutory basis for taxing out-of-state income is § 103, which states:
Any taxpayer having income from business activity which is taxable both within and without this state, other than the rendering of purely personal services by an individual, shall allocate and apportion his net income as provided in this act.[ ]
MCL 206.105 specifies when a taxpayer’s income is taxable in another state and, thus, required to be allocated and apportioned under § 103. It provides:
For purposes of allocation and apportionment of income from business activity under this act, a taxpayer is taxable in another state if (a) in that state he is subject to a net income tax, a franchise tax measured by net income, a franchise tax for the privilege of doing business or a corporate stock tax, or (b) that state has jurisdiction to subject the taxpayer to a net income tax regardless of whether, in fact, the state does or does not.[ ]
Finally, MCL 206.20 defines “state” as “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, and any foreign country, or political subdivision, thereof.” Taken together, these provisions require a taxpayer to allocate and apportion his income if “in [a foreign country] he is subject to a net income tax'... or [a foreign country] has jurisdiction to subject the taxpayer to a net income tax... .” Thus, unitary businesses that include foreign entities must allocate and apportion their income as provided by the ITA.
We turn now to the ITA provisions dealing with business income to determine if the act otherwise excludes the income of a foreign entity for purposes of allocation and apportionment. Section 115, which deals with the apportionment of business income, states in pertinent part, “All business income . . . shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is 3.” Moreover, the apportionment factors themselves employ universal language when explaining the scope of relevant business activity. MCL 206.119 states that “[t]he payroll factor is a fraction,. .. the denominator of which is the total compensation paid everywhere during the tax period.” Likewise, MCL 206.121 states that “[t]he sales factor is a fraction,.. . the denominator of which is the total sales of the taxpayer everywhere during the tax period.”
Nowhere in the ITA did the Legislature limit formu-lary apportionment to the domestic entities of a unitary business. In fact, to the extent that the Legislature discussed geographic limitations, it expressly required taxpayers with income taxable in a foreign country to allocate and apportion their income as provided in the act, which includes § 115’s directive that all business income be apportioned using the apportionment factors. Therefore, we reject the Department’s argument that the ITA prohibits application of formulary apportionment to income from a foreign entity that is unitary with a domestic business.
Accordingly, we conclude that a unitary business with income from a business in a foreign country could be apportioned under the version of the ITA in effect during the tax years of 1994 and 1995.
C. APPLICATION TO MALPASS
On appeal, the parties in Malpass do not dispute whether East Jordan and Ardmore were a unitary business. The Court of Appeals, despite determining that the businesses had unitary characteristics, wrongly concluded that the ITA does not allow individual taxpayers with flow-through business income from separate legal entities to use combined reporting. For the reasons already stated, we hold that the ITA did not prohibit the Malpasses from first combining the income from their unitary flow-through entities and then apportioning it on the basis of the combined apportionment factors of East Jordan and Ardmore. Therefore, we reverse the Court of Appeals’ judgment in Malpass and reinstate the order entered by the Court of Claims granting summary disposition in favor of the Malpasses.
D. application to wheeler
Unlike in Malpass, the parties in Wheeler dispute whether the Michigan and German entities were a unitary business. The Tax Tribunal found that they were, and the Court of Appeals affirmed. To consider business operations unitary, the United States Supreme Court has held, “[T]here [must] be some sharing or exchange of value not capable of precise identification or measurement — beyond the flow of funds arising out of a passive investment or a distinct business operation — which renders formula apportionment a reasonable method of taxation.” Accordingly, a unitary business exists when the income-producing companies have “functional integration, centralization of management, and economies of scale.” Other United States Supreme Court decisions have added to these guideposts. The Court of Appeals relied on the following five factors in determining whether the Michigan and German entities were a unitary business: “(1) economic realities; (2) functional integration; (3) centralized management; (4) economies of scale, and (5) substantial mutual interdependence.” We agree that these factors are appropriate guides for determining whether businesses are unitary. Moreover, as the United States Supreme Court held in Container Corp, “We need not decide whether any one of these factors would be sufficient as a constitutional matter to prove the existence of a unitary business.” These factors are not exhaustive or exclusive. Nor is any one factor dispositive. Instead, a court should consider the totality of the circumstances when determining if businesses are unitary.
Turning to the evidence offered by the parties, and aware of our limited review of the factual determinations made by the Tax Tribunal, we agree with that body’s conclusion that the businesses here were unitary. The Court of Appeals affirmed the findings of the Tribunal. Because we agree with the thorough analysis of the Court of Appeals, we adopt its conclusions and . holding in full:
The first factor, economic realities, addresses whether the regularly conducted activities of the businesses in question are related. Holloway, 152 Mich App at 832. The record shows that the underlying businesses of Electro- Wire and TKG were identical because both were engaged in the manufacturing and assembling of electrical distribution systems. Respondent claims that this is immaterial because the two businesses were engaged in the same underlying business before Electro-Wire purchased TKG. However, there is no requirement under Holloway or related cases that potentially unitary businesses develop the same underlying activities collaboratively; the only requirement is that the underlying businesses be related to each other.
The second factor, functional integration, concerns the extent to which business functions are blended to promote a unitary relationship. Petitioners presented evidence that, before it was acquired by Electro-Wire, TKG was part of the Daimler Group. Once Electro-Wire purchased TKG, however, this relationship was severed, leaving TKG without critical support services, which were assumed by Electro-Wire. These services included direct management of TKG’s business activities and support for component engineering, manufacturing and industrial engineering, cost estimating, business development, finance, and executive administration. Respondents presented no rebuttal evidence, but set forth on appeal a list identifying ways in which Electro-Wire and TKG were not integrated. However, this belated argument is not persuasive because there is no requirement that businesses be 100 percent integrated in order to classify them as unitary.
The third factor examines the extent to which management was centralized across the potentially unitary business. Petitioners submitted unrebutted evidence that TKG’s overall management decisions were centralized and directed by Electro-Wire managers in North America and that Electro-Wire hired and fired all TKG officers and managers. Again, respondent presented no rebuttal evidence, but alleges that Electro-Wire did not engage in day-to-day management of TKG. Again, however, the only requirement under Holloway is centralized management, not complete management.
The fourth factor looks for the presence of economies of scale. Petitioners presented unrebutted evidence of eco nomic benefits generated by the combination of Electro-Wire and TKG, such as an expanded customer base, sharing of unique and proprietary processes, and improved financing terms. Respondent presented no evidence to challenge this, but argues that petitioners failed to show profits through bulk purchasing or improved allocation of resources. These are typically considered to be common economies of scale, but respondent does not explain how cheaper component parts, an expanded customer base, increasing economic diversification, and improved financing conditions are not also benefits derived from economies of scale.
The fifth and final factor considers whether substantial mutual interdependence exists. Petitioners submitted unrebutted evidence that acquiring TKG was essential for Electro-Wire to remain a supplier for Ford and that remaining a supplier for Ford was essential to Electro-Wire’s survival. The Tax Tribunal found that Electro-Wire was dependent on TKG, but was unable to conclude whether or not TKG was similarly dependent on Electro-Wire, and thus resolved this factor partially in favor of petitioners.[ ]
Based on the foregoing, we hold that the Tax Tribunal’s factual finding that Electro-Wire and TKG were a unitary business was “supported by competent, material, and substantial evidence on the whole record.” Because there was evidentiary support for all of the unitary factors, the Court of Appeals properly affirmed the Tax Tribunal’s conclusion that Electro-Wire and TKG constituted a unitary business. Because we discern no limitations on the geographical boundaries to which the combined reporting could extend, the Wheelers could combine the profits and losses from Electro-Wire and TKG and then apportion, using the companies’ combined apportionment factors.
IV CONCLUSION
In Malpass, we hold that the ITA permitted the individual taxpayers to combine the flow-through business income from the unitary business of East Jordan and Ardmore and then apportion, using the combined apportionment factors of the unitary business. Accordingly, we reverse the Court of Appeals and remand to the Court of Claims for reinstatement of the order granting summary disposition in favor of plaintiffs.
In Wheeler, we hold that the Court of Appeals properly determined that the Wheelers could combine their flow-through income from the unitary business of Electro-Wire and TKG. In so doing, we hold that the ITA contained no geographical limitations for the tax years of 1994 and 1995 and that combined reporting was proper even though the unitary business included an entity located in a foreign country. We affirm the judgment of the Court of Appeals, but we vacate Section 111(A) of the Court of Appeals’ opinion because that analysis is inconsistent with our analysis herein and relied on the Court of Appeals’ erroneous decision in Malpass, which we reverse today.
Young, C.J., and Cavanagh, Markman, Kelly, Zahra, and McCormark, JJ., concurred with Viviano, J.
MCL 206.1 et seq. The statutory provisions at issue in this opinion are to the versions of the ITA applicable to the tax years at issue. The Legislature has since amended many of these provisions. Except as discussed herein, those amendments have no bearing on these cases.
26 USC § 1361.
Malpass v Dep’t of Treasury, 295 Mich App 263, 275; 815 NW2d 804 (2011).
Id.
Wheeler v Dep’t of Treasury, 297 Mich App 411, 420, 422; 825 NW2d 588 (2012).
Id. at 425.
Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 644 (2013).
Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 75; 780 NW2d 753 (2010).
Klooster v City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011), quoting Mich Bell Tel Co v Dep’t of Treasury, 445 Mich 470, 476; 518 NW2d 808 (1994) (quotation marks omitted).
Klooster, 488 Mich at 295.
Mobil Oil Corp v Comm’r of Taxes of Vermont, 445 US 425, 436-437; 100 S Ct 1223; 63 L Ed 2d 510 (1980), citing Moorman Mfg Co v Bair, 437 US 267, 272-273; 98 S Ct 2340; 57 L Ed 2d 197 (1978).
Allied-Signal, Inc v Director, Div of Taxation, 504 US 768, 772; 112 S Ct 2251; 119 L Ed 2d 533 (1992).
Mobil Oil, 445 US at 438-439. Typically, controversies involving the unitary business principle and formulary apportionment feature the taxpayer raising constitutional objections to the state’s taxation scheme. See Mobil Oil Corp, 445 US at 439; Container Corp of America v Franchise Tax Board, 463 US 159, 165-175; 103 S Ct 2933; 77 L Ed 2d 545 (1983); F W Woolworth Co v Taxation & Revenue Dep’t of New Mexico, 458 US 354, 364-372; 102 S Ct 3128; 73 L Ed 2d 819 (1982); ASARCO Inc v Idaho State Tax Comm, 458 US 307, 322-330; 102 S Ct 3103; 73 L Ed 2d 787 (1982). Although there are no constitutional claims in this case, that does not render the basic constitutional principles underlying Michigan’s formulary apportionment scheme irrelevant because the unitary business principle is the predicate for any formulary apportionment scheme.
Preston v Dep’t of Treasury, 292 Mich App 728, 733; 815 NW2d 781 (2011), quoting Allied-Signal, Inc, 504 US at 778. Until recently, the Department has taken the position that the unitary business principle does not apply to individual taxpayers, but now concedes that it does. Michigan adopted the Uniform Division of Income for Tax Purposes Act (UDITPA) when it enacted the Michigan Income Tax Act in 1967; UDITPA embodies the application of the formulary apportionment method in conjunction with the unitary business principle. See Container Corp, 463 US at 165, 170.
MCL 206.115. During the tax years at issue in these cases, Michigan used three factors — payroll, property, and sales — to apportion in-state and out-of-state business income for individuals. Michigan’s apportionment formula changed as of January 1, 2012, with the enactment of Michigan’s corporate income tax act, MCL 206.601 ei seq. Michigan now apportions solely on a sales factor. See MCL 206.115(2), as amended by 2011 PA 38 and 2011 PA 178.
See, generally, 2 Pomp, State and Local Taxation (6th ed), pp 10:43-10:48.
Media Gen Communications v SC Dep’t of Revenue, 388 SC 138, 142, 146; 694 SE 2d 525 (2010); see also Pomp, pp 10:42, 10:43.
Media Gen Communications, 388 SC at 142. The combined income is not used for taxing purposes, but it is used to’determine the “portion of income from the entire unitary business attributable to sources within [the state] that is derived by members of the group subject to [the state’s] taxing jurisdiction.” Id. See also Pomp, pp 10:42-10:43.
Casco Twp v Secretary of State, 472 Mich 566, 571; 701 NW2d 102 (2005).
Klooster, 488 Mich at 296, citing Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
Sun Valley Foods Co, 460 Mich at 237; Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).
MCL 206.102.
MCL 206.103.
MCL 206.110(1).
Emphasis added.
MCL 206.4(2).
Sun Valley Foods, 460 Mich at 236.
MCL 208.77. During the tax years at issue, a combined return provision existed in the Single Business Tax Act, MCL 208.1 et seq., as replaced by 2006 PA 325, giving the Department discretion to allow a corporation to file a consolidated or combined return.
See MCL 206.315.
The Department is free to promulgate administrative rules consistent with the ITA in accordance with procedures set forth in the Administrative Procedure Act, MCL 24.201 et seq. and MCL 205.3(b); see also MCL 206.471(1)(b) (providing that the Department may promulgate rules for “[t]he computation of the [income] tax”); MCL 206.471(1)(d) (providing that the Department may promulgate rules regarding the “ascertainment, assessment, and collection of the tax”). We do not address whether, or the extent to which, the Department may promulgate a rule requiring that an individual taxpayer use a particular method of reporting in the taxpayer’s initial filing. We note, however, that any such rule would be subject to the current MCL 206.195, which gives the taxpayer the right to petition for an alternative method if the initial filing required by the Department “do[es] not fairly represent the extent of the taxpayer’s business activity in this state.” MCL 206.195(1)(c).
In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 103; 754 NW2d 259 (2008), quoting Boyer-Campbell Co v Fry, 271 Mich 282, 296-297; 260 NW 165 (1935).
Iselin v United States, 270 US 245, 251; 46 S Ct 248; 70 L Ed 566 (1926).
Although not significant to the Court’s analysis, we note that combined reporting ensures that “the substance of the business activities in the state [] control tax consequences, not the organizational structure of the business or the entities conducting those activities,” Pomp, p 10-48; is “wholly consistent with, and a natural extension of, the apportionment method[,]” Coca Cola Co v Dep’t of Revenue, 271 Or 517, 528; 533 P2d 788 (1975); and, perhaps for these reasons, is a “growing trend[.]” Pomp, p 10-44. However, the separate-entity approach is also consistent with formulary apportionment. See W. Hellerstein, Income Allocation, 12 Int’l Transfer Pricing J. 103, 105 (2005).
MCL 206.115.
We note that the United States Supreme Court has upheld the apportionment of business income of unitary foreign entities. See, e.g., Barclays Bank PLC v Franchise Tax Bd of Cal, 512 US 298; 114 S Ct 2268; 129 L Ed 2d 244 (1994); Container Corp of America, 463 US 159 (1983).
Casco Twp, 472 Mich at 571.
MCL 206.103 (emphasis added).
MCL 206.105.
MCL 206.20 (emphasis added).
MCL 206.105.
MCL 206.103.
Emphasis added.
Emphasis added.
Emphasis added.
See MCL 206.20, 206.103, and 206.105.
The Legislature has limited the scope of the corporate income tax to domestic corporations in recent amendments. 2011 PA 38. The ITA now defines “unitary business group” as a “group of United States persons that are corporations, insurance companies, or financial institutions, other than a foreign operating entity ....” MCL 206.611(6). The Department argues that this shows that the Legislature only intended to include businesses within the United States. However, we are not persuaded that the recent amendment limiting the scope of corporate income tax should affect our interpretation of the ITA for the tax years 1994 and 1995.
Malpass, 295 Mich App at 270. In its opinion, the Court of Appeals erroneously concluded that the ITA does not allow combined reporting. Id. (“[Njothing in the ITA allows for combined-entity reporting.”); id. at 272 (“There is no provision in the ITA that allows individuals to combine their business income from separate businesses and then use a combined apportionment formula on the total.”). However, the Court of Appeals reached this conclusion in cursory fashion without analyzing the relevant provisions of the ITA. Instead, the Court of Appeals fixated on the corporate form of the business entities, even though the ITA makes no distinctions based on corporate formalities.
Container Corp, 463 US at 166.
Mobil Oil, 445 US at 438.
See F W Woolworth Co, 458 US at 364-372; ASARCO Inc, 458 US at 319, 322-329; Container Corp, 463 US 159.
Wheeler Estate, 297 Mich App at 422-423, citing Holloway Sand & Gravel, Co, Inc v Dep’t of Treasury, 152 Mich App 823, 831; 393 NW2d 921 (1986).
Container Corp, 463 US at 179-180.
See, generally, Holloway Sand, 152 Mich App at 835 (mentioning a “sixth factor” resulting from the taxpayer’s treatment of capital gains from one of the businesses); see also Container Corp, 463 US at 179 (approving a California Court of Appeals reliance on “a large number of factors” to conclude that a domestic corporation and its foreign subsidiaries were unitary).
Wheeler Estate, 297 Mich App at 423-425.
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Young, C.J.
While hearsay is generally inadmissible, the Michigan Rules of Evidence permit certain prior out-of-court statements to be admitted into evidence when a witness is unavailable. MRE 804(a) enumerates five situations when a witness is unavailable, including when the witness is unable to testify because of a then existing physical or mental illness or infirmity. We hold that when a child attempts to testify but, because of her youth, is unable to do so because she lacks the mental ability to overcome her distress, the child has a “then existing. . . mental. . . infirmity” within the meaning of MRE 804(a)(4) and is therefore unavailable as a witness. Accordingly, we reverse the judgment of the Court of Appeals and remand to the trial court for further proceedings consistent with this opinion. On remand, the trial court must determine whether the complainant’s preliminary examination testimony satisfies the requirements of MRE 804(b)(1) and, if so, whether admission of that testimony would violate defendants’ rights under the Confrontation Clause.
I. FACTS AND PROCEDURAL HISTORY
Defendant Stanley Duncan was charged in the Ma-comb Circuit Court with five counts of first-degree criminal sexual conduct (CSC-I) and four counts of second-degree criminal sexual conduct (CSC-II). Stanley’s wife, defendant Vita Duncan, was charged with two counts of CSC-I, two counts of CSC-II, and with the misdemeanor offense of operating a daycare facility without a license. The alleged victim in this case, RS, is the sole complainant against Vita and one of three complainants against Stanley.
Separate preliminary examinations were held for each defendant. At Stanley Duncan’s preliminary examination on October 17, 2011, then three year old RS correctly answered the trial court’s questions about her age, her birthday, and her dog’s name, among others. The judge then asked RS if she knew the difference between telling the truth and not telling the truth, to which she responded, “Yes.” She also affirmed that she would honestly answer the questions of the attorneys. The court therefore qualified RS as competent to testify, determining that she had sufficient mental intelligence to communicate and had a sense of obligation to testify honestly.
RS testified that on at least three occasions, Stanley Duncan touched her “private,” indicating her vaginal area, and “blew raspberries” on her vaginal area while her pants and underwear were off. The raspberries hurt “a little bit,” and his touching “really hurted.” She testified that the acts occurred in the bathroom of defendants’ home, where RS attended daycare.
On December 2, 2011, at the preliminary examination concerning the charges against Vita Duncan, RS was qualified as competent after she correctly answered questions about her birthday, her dog’s name, and the name of her schoolteacher. RS affirmed her understand ing of what telling the truth means, and promised to do so. RS repeated substantially the same answers that she previously gave regarding Stanley Duncan, and also stated that she told Vita more than once that Stanley had touched her. RS also testified that, on at least one occasion while Stanley was touching her, Vita was just outside the bathroom, and that RS could see Vita.
Both defendants were bound over on the charges against them, and a joint trial before a single jury began on September 28, 2012. RS was called to the stand and was first questioned by the court. When asked whether she knew the difference between the truth and a lie, RS responded, “No,” and was unable to explain what a promise means. After RS struggled to answer questions similar to those answered at the preliminary examinations, the trial court excused the jury, and met with counsel, RS, and RS’s parents in chambers. Afterward, RS was again put on the stand, and again answered, “No” to the questions regarding whether she knew what the truth is, what a lie is, and what a promise is. RS was clearly agitated. Throughout the court’s questioning, RS had tears in her eyes and was wringing her hands. RS began crying in earnest just before the court excused her. The court ruled that she was not competent to testify pursuant to MRE 601.
The prosecution immediately asked the court to declare RS unavailable, arguing that RS lacked memory of the events giving rise to the charges, and moved to admit her preliminary examination testimony pursuant to MRE 804(b)(1), a hearsay exception for unavailable witnesses. The trial court considered each of the five situations of unavailability enumerated in MRE 804(a), but held that none of them applied to RS.
After the trial court granted a stay of the trial proceedings, the prosecution sought emergency leave to appeal in the Court of Appeals and moved for immediate consideration of the trial court’s ruling that RS was not unavailable. The Court of Appeals granted the prosecution’s motion for immediate consideration, held the applications for leave to appeal in abeyance, and remanded the cases to the trial court with instructions to issue an opinion explaining its decision.
In its opinion on remand, the trial court reiterated its holding that RS was not unavailable because her failure to take the equivalent of the oath did not trigger any of the scenarios enumerated in MRE 804(a). Without much discussion, the court ruled that MRE 804(a)(4), which renders a declarant unavailable if she is dead or has a physical or mental infirmity or illness, did not apply because RS’s situation did not include any of these circumstances. The court stressed that RS was even younger at the preliminary examination than at trial and suggested that this fact lent support to its ruling that she was not unavailable at the later trial date.
The Court of Appeals denied the prosecution’s applications for leave to appeal. This Court granted the prosecution’s motion for immediate consideration, stayed the proceedings, and remanded both cases to the Court of Appeals for consideration as on leave granted.
In its opinion, the Court of Appeals affirmed the trial court’s finding that RS was not unavailable within the meaning of MRE 804(a) generally and that RS did not meet the specific circumstance of having a “then existing physical or mental illness or infirmity” within the meaning of MRE 804(a)(4). Distinguishing this case from past cases in which witnesses were held both incompetent and unavailable, the Court of Appeals reasoned that the fact that some witnesses are both incompetent and unavailable does not mean that all incompetent witnesses are unavailable. Under MRE 601, a witness is not competent to testify if she “does not have sufficient physical or mental capacity... to testify truthfully ....” By comparison, MRE 804(a)(4) renders a declarant unavailable as a witness if she “is unable ... to testify... because of... then existing physical or mental illness or infirmity[.]” Because the use of distinct language in the two provisions suggests distinct requirements to meet each rule, the Court concluded that RS was not mentally ill or infirm even though she may have lacked the mental capacity to qualify as competent.
We granted the prosecution’s motion for immediate consideration and application for leave to appeal, limited “to the issue whether the witness was ‘unavailable’ for the purposes of MRE 804(a).”
II. STANDARD OF REVIEW
The decision whether to admit evidence falls within a trial court’s discretion and will be reversed only when there is an abuse of that discretion. A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Decisions concerning the admission of evidence often involve preliminary questions of law that are reviewed de novo. These preliminary questions of law include questions involving the interpretation of rules of evidence. A trial court necessarily abuses its discretion when it makes an error of law.
III. ANALYSIS
When construing court rules, including evidentiary rules, this Court applies the same principles applicable to the construction of statutes. Accordingly, we begin with the rule’s plain language. When the language of the rule is unambiguous, we enforce the plain meaning without further judicial construction. The Court may refer to dictionaries to aid in discerning the plain meaning of a rule.
Hearsay is “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” “Hearsay is generally prohibited and may only be admitted at trial if provided for in an exception to the hearsay rule.” MRE 804(b) enumerates several exceptions to the rule prohibiting hearsay evidence that apply when a declarant is deemed “unavailable as a witness” pursuant to MRE 804(a). Consequently, if a witness is determined to be unavailable, certain evidence that would otherwise be inadmissible may be admitted at trial so long as it meets the requirements of MRE 804(b) and is not otherwise excluded by another rule of evidence.
With regard to hearsay, a witness’s unavailability to testify is governed by MRE 804(a), which provides:
Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant-
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or
(3) has a lack of memory of the subject matter of the declarant’s statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
We focus on MRE 804(a)(4), which defines “unavailability” to include a declarant who lacks the physical or mental capability to testify. MRE 804(a)(4) provides that unavailability as a witness includes situations in which the declarant “is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity[.]” We focus solely on the phrase “then existing. . . mental.. . infirmity,” which provides the basis for our decision. First, we address the term “infirmity.” “Infirmity” is defined as “the quality or state of being infirm; lack of strength.” In turn, “infirm” is defined as “feeble or weak in body or health, [especially] because of age.” Of note, age is specifically designated as a factor that may give rise to an infirmity.
MRE 804(a)(4) contemplates both physical and mental infirmities, though we focus only on whether a mental infirmity existed in this case. The term “mental” modifies “infirmity” and is defined as “1. of or pertaining to the mind. 2. of, pertaining to, or affected by a disorder of the mind[.]” Thus, read together, the phrase “mental infirmity” as used in MRE 804(a)(4) encompasses weakness or feebleness of the mind — one cause of which may be an individual’s age.
Furthermore, the language of the rule establishes that the mental infirmity need not be permanent, or even longstanding. The phrase “then existing” specifically limits the temporal scope within which a witness’s availability under MRE 804(a)(4) may be assessed; the only relevant reference point is the point at which the witness takes the stand. As a result, the declarant need not suffer from a permanent illness or infirmity. Thus, the fact that RS was competent and available to testify at two preliminary examinations does not affect the determination whether she was mentally capable or infirm for purposes of MRE 804(a)(4) at the time her testimony was sought at trial. Rather, the only relevant inquiry is her condition at the time she was called to testify.
In holding that a child may be mentally infirm in the type of extraordinarily stressful trial situation like the one that existed here, we recognize the obvious truth that children lack the same level of mental maturity as that exhibited by and expected of most adults. Legal and psychological research confirms this uncontroversial proposition. As a result of these limitations, young children are less mentally equipped to cope with severe emotional distress. Testifying in open court can be a harrowing experience for anyone, and young children are much more susceptible to emotional breakdowns than adults. Indeed, testifying in open court “can make some children tearful, ill, or inarticulate in the courtroom. .. . Under the stress of testifying, some children may regress to a more immature level of behavior.” When these emotional terrors are severe and a child has not developed the mental capacity to overcome this distress, an emotional breakdown may eliminate any possibility of securing testimony from the young child.
RS was four years old at the time she was called to testify at trial. She demonstrated an inability to overcome her distress when she was unable to answer the trial court’s questions. When asked whether she knew the difference between the truth and a lie, RS responded, “No,” and was unable to explain what a promise means. Furthermore, she answered, “No” to whether she knew what the truth is, what a lie is, and what a promise is. Importantly, throughout her examination RS had tears in her eyes, was wringing her hands, and ultimately began to cry, rendering her unable to answer counsels’ questions. While an older youth or an adult may have been able to suppress the unease of testifying in open court, RS, as a young child, was susceptible to particular challenges that must be taken into consideration when determining whether a witness is mentally infirm under MRE 804(a)(4). As could be expected from a young child, especially in the context of alleged criminal sexual conduct, RS simply did not have the mental maturity to overcome her debilitating emotions while on the stand.
Under the plain language of the rule, and with our recognition of the unique mental and emotional limitations of youth, we hold that RS had a then existing mental infirmity in this case because the facts show that she was unable to sufficiently cope with her significant emotional distress and give testimony at trial, a result of her particularly young age. Therefore, she was unavailable within the plain meaning of MRE 804(a)(4).
We recognize the case-specific nature of the inquiry into whether a witness suffers from a “then existing mental infirmity.” In this case, the severity of RS’s emotional distress made it impossible for her to testify. This is highlighted by the fact that she had previously been able to give testimony about the alleged sexual contacts at issue in this case. Before trial courts hold that a child has a then existing mental infirmity, we urge them to use, when appropriate, the tools in our court rules and statutes to accommodate young witnesses. For example, MCL 600.2163a enables the use of dolls or mannequins to aid children in their testimony. Moreover, in certain circumstances, the statute allows for witness accompaniment by a “support person,” use of videorecorded statements, and testimony via closed-circuit television.
The Court of Appeals concluded that RS did not demonstrate a mental infirmity, characterizing her conduct merely as an inability to provide the trial court with assurances that she was able and willing to testify truthfully. While the Court of Appeals may be correct that she was unable to testify truthfully at the time of trial, this fact does not foreclose the possibility that RS’s mental infirmity caused this inability, which ultimately rendered her unavailable. In fact, as discussed, RS clearly demonstrated that, at the time of her trial testimony, she was emotionally overwhelmed and was mentally incapable of overcoming this distress and was therefore unable to affirm that she could testify truthfully. Therefore, the Court of Appeals erred when it failed to examine the reason for RS’s inability to testify.
We conclude that the trial court abused its discretion in ruling that RS was not unavailable. As discussed, by using the word “infirmity,” MRE 804(a)(4) plainly contemplates that a declarant is unavailable for hearsay purposes when she is unable to overcome severe emotional trouble resulting from the limitations of her young age. Though this is an issue of first impression, the trial court committed a legal error in its interpretation of the rule when it held that RS was not infirm when she was unable to give testimony. The trial court’s decision not to admit RS’s preliminary examination testimony on the basis of its erroneous legal interpretation necessarily constitutes an abuse of discretion.
IV CONCLUSION
The language of MRE 804(a)(4) includes within its list of individuals who are unavailable those witnesses who are mentally infirm at the time they are called to give testimony. In this case, RS was unable to testify because she could not overcome her significant emotional distress, a result of the unique limitations of her youth and, therefore, she was mentally infirm at the time of her trial testimony. Thus, the lower courts erred by concluding that RS was not unavailable under MRE 804(a)(4). We reverse the judgment of the Court of Appeals and remand this matter for further proceedings consistent with this opinion. On remand, the trial court must determine whether RS’s preliminary examination testimony satisfied the requirements of MRE 804(b)(1) and, if so, whether admission of that testimony would violate defendants’ rights under the Confrontation Clause.
Kelly, Zahra, McCormack, and Viviano, JJ., concurred with Young, C.J.
MRE 802.
MRE 804(b).
MRE 804(a)(4).
We express no opinion regarding the admissibility of this preliminary examination testimony pursuant to MRE 804(b).
US Const, Am VI.
MCL 750.520b(1)(a).
MCL 750.520c(1)(a).
MCL 722.125(1)(b).
See MRE 601 (“Unless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules.”).
The prosecution initially argued that RS was unavailable pursuant to MRE 804(a)(3) (stating that unavailability as a witness includes situations in which the declarant “has a lack of memory of the subject matter of the declarant’s statement”). In this Court and the Court of Appeals, the prosecution has relied on MRE 804(a)(4), arguing RS suffered from a mental illness or infirmity.
If a declarant is unavailable pursuant to MRE 804(a), the following is not excluded as hearsay: “[tlestimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” MRE 804(b)(1).
MRE 804(a) lists five situations in which a declarant is considered unavailable: when the declarant is exempted from testifying by operation of a privilege; when the declarant refuses to testify; when the declarant has a lack of memory of the subject of a prior statement; when the declarant cannot testify because of death or a then existing physical or mental illness or infirmity; and when the declarant is absent notwithstanding due diligence to procure the declarant’s attendance by the proponent of the statement.
The trial court also declined to rule on the claim, raised by Stanley Duncan’s defense counsel, that admission of RS’s preliminary examination testimony would violate his right “to be confronted with the witnesses against him ....” US Const, Am VI. Because this issue is not before us, we decline to address any potential issues concerning the Confrontation Clause.
Because the trial court ruled that RS did not qualify as an unavailable witness, it did not determine whether RS’s preliminary examination testimony satisfied the requirement that “the party against whom the testimony is now offered” have had “an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination” to be admissible under the hearsay exception for former testimony. MRE 804(b)(1).
People v Duncan, 493 Mich 867 (2012).
People v Duncan, unpublished opinion per curiam of the Court of Appeals, issued November 29, 2012 (Docket Nos. 312637 and 312638).
See People v Karelse, 143 Mich App 712; 373 NW2d 200 (1985), rev’d 428 Mich 872 (1987) (adult complainant held unavailable under MRE 804(a)(4) because she was mentally disabled); People v Edgar, 113 Mich App 528; 317 NW2d 675 (1982) (four-year-old complainant’s unavailability at trial was attributed to her failure of memory under MRE 804(a)(3)).
The Court also held that the prosecution had failed to demonstrate that MRE 804(a) supplies an illustrative, rather than exhaustive, list of situations in which a witness may be unavailable, foreclosing the possibility that RS was unavailable because of a reason that is not specifically listed in MRE 804(a)(1) through (5).
Moreover, even though the Court of Appeals recognized that it need not determine whether the requirements under MRE 804(b)(1) were met given that Court’s conclusion that RS was not unavailable, it analyzed the issue nonetheless. The Court noted that defense counsel did not have the benefit of discovery when cross-examining RS at the preliminary examination, and that, because there were two separate preliminary examinations, one for each of the defendants, counsels’ motives differed.
People v Duncan, 493 Mich 926 (2013). This Court also vacated as dicta portions of the Court of Appeals’ judgment and the trial court’s opinion discussing application of the Confrontation Clause.
People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010).
People v Blackston, 481 Mich 451, 460, 467; 751 NW2d 408 (2008).
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
People v Barrett, 480 Mich 125, 130; 747 NW2d 797 (2008).
People v Waterstone, 296 Mich App 121, 132; 818 NW2d 432 (2012); accord Koon v United States, 518 US 81, 100; 116 S Ct 2035; 135 L Ed 2d 392 (1996) (“The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.”). See also Lukity, 460 Mich at 488 (stating that when “preliminary questions of law are at issue, it must be borne in mind that it is an abuse of discretion to admit evidence that is inadmissible as a matter of law”).
McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).
Danse Corp v City of Madison Heights, 466 Mich 175, 181-182; 644 NW2d 721 (2002).
Id. at 182.
Fremont Ins Co v Izenbaard, 493 Mich 859, 859; 820 NW2d 902 (2012); Gursky, 486 Mich at 608.
MRE 801(c).
Gursky, 486 Mich at 606; see also MRE 802 (“Hearsay is not admissible except as provided by these rules.”).
See, e.g., MRE 402 (“Evidence which is not relevant is not admissible.”); MRE 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”); MRE 404(a) (stating that generally “[e]vidence 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”).
Random House Webster’s College Dictionary (1995).
Id.
The prosecution has not advanced the argument that RS suffered a physical infirmity, nor is there any record evidence suggesting that she did. MRE 804(a)(4) also contemplates physical and mental illness, though neither of these conditions are considered here.
Random House Webster’s College Dictionary (1995).
Though this Court has never addressed the ambit of MRE 804(a)(4) with regard to age, the Court of Appeals has recognized that an 84-year-old woman was unavailable because she was “physically or mentally infirm . ...” People v Murry, 106 Mich App 257, 260; 307 NW2d 464 (1981). However, that decision appears to have been based more on the declarant’s physical illnesses, which made her attendance at court “detrimental to her health.” Id.
Schuman, Bala & Lee, Developmentally appropriate questions for child witnesses, 25 Queen’s L J 251, 255 (1999) (recognizing that “[e]hildren are not just short adults”). See also infra notes 38-40.
Patton, Viewing child witnesses through a child and adolescent psychiatric lens: How attorneys’ ethical duties exacerbate children’s psychopathology, 16 Widener L R 369 (2010) (“Many child abuse victims are the most psychologically fragile witnesses in the legal system.”).
Schuman, Bala & Lee, at 255,297 (stating that testifying in court can be “deeply upsetting” for young children and “can cause them considerable anxiety, even terror”).
Myers, Saywitz & Goodman, Psychological research on children as witnesses: Practical implications for forensic interviews and courtroom testimony, 28 Pac L J 3, 70 (1996-1997) (citation and quotation marks omitted).
Though the inquiries may be similar, our holding today does not mean that a finding of incompetence pursuant to MRE 601 necessarily renders a witness unavailable to testify under MRE 804(a)(4). While the definitions of the concepts undoubtedly have some overlap, as they do in the instant case, the two rules employ different language, and therefore require different inquiries. It is unnecessary for us to explicate the exact parameters of the overlap in this case.
See also MRE 803A (hearsay exception for a child’s statement about sexual acts).
Because RS falls within the ambit of a term listed in MRE 804(a)(4), this Court need not address whether MRE 804(a) provides an exhaustive or an illustrative list of situations in which a witness’s testimony is unavailable. | [
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Zahra, J.
At issue in this case is whether the four-year period of limitations in § 2725 of article 2 of Michigan’s Uniform Commercial Code (UCC), MCL 440.2725, is applicable to actions on either an open account or an account stated when the underlying debt stemmed from the sale of goods. Because actions on an account stated and actions on an open account are distinct and independent from the underlying transactions giving rise to the antecedent debt, neither action is governed by the four-year limitations period provided in § 2725 of the UCC. Rather, both actions are governed by the six-year period of limitations provided in MCL 600.5807(8). Accordingly, we reverse the contrary judgment of the Court of Appeals, which barred plaintiffs open account and account stated actions as untimely, and remand the case to the trial court for further proceedings consistent with this opinion.
I. FACTS AND PROCEEDINGS
Plaintiff provided concrete supplies to defendant commencing in October 1991. Plaintiff timely and regularly invoiced defendant for these supplies. Defendant made sporadic payments to plaintiff in random amounts. Plaintiff maintained an account that recorded the supplies sold to defendant and the payments defendant submitted to plaintiff on that account. Through the course of the litigants’ business relationship, defendant never paid its account in full. Commencing in 2003, defendant acquired from plaintiff less product than it had acquired in prior years. Specifically, defendant made only 4 purchases from plaintiff in 2003 and 10 purchases from plaintiff in 2004. On May 9, 2005, defendant made what turned out to be its final purchase from plaintiff. On that date, plaintiff delivered a small amount of supplies to defendant, for which defendant was invoiced $152.98. Defendant paid the invoiced amount on May 13, 2005, by check. Defendant did not designate on its check that the tendered amount was to satisfy the invoice of May 9, 2005. Plaintiff claims it credited the payment against the open account balance. That was the last payment defendant made to plaintiff.
More than four years later plaintiff sued defendant, claiming that defendant owed plaintiff $92,968.57, including $3,718.32 in finance charges. Plaintiffs claims included breach of contract, unjust enrichment, and account stated. Plaintiff filed an amended complaint on October 29, 2009, adding a claim for amount owed on an open account. Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that plaintiffs claims were barred by the four-year period of limitations provided in § 2725 of the UCC. Plaintiff countered that defendant’s obligation to pay on the open account was independent of any sale of goods and that its claim was therefore governed by the six-year period of limitations provided in MCL 600.5807(8). Whether defendant’s May 13, 2005, payment was a payment on the open account or a payment for a distinct transaction was also disputed because defendant’s $152.98 payment matched an invoice for the same amount dated May 9, 2005. The trial court held that plaintiffs action was governed by the four-year period of limitations provided in § 2725 because the parties’ open account related to the sale of goods. Therefore, the trial court concluded, plaintiffs claims based on open account and account stated were not timely because the action was commenced more than four years after the claims accrued. A divided panel of the Court of Appeals affirmed in a published opinion, holding that the UCC’s four-year limitations period was applicable to actions on both an open account and an account stated.
The Court of Appeals noted that it was unable to find anything in Michigan’s jurisprudence directly addressing whether the four-year period of limitations in the UCC is applicable to an open account relating to the sale of goods. Plaintiff argued that the UCC did not apply to its claim because “payment on an open account triggers a new obligation, separate and distinct from an underlying agreement.” The Court of Appeals dismissed plaintiff’s contentions because the cases supporting plaintiffs argument did not involve the sale of goods subject to the UCC. The Court of Appeals consulted the official comments to the UCC, which provide that the purpose of article 2 is to take “ ‘sales contracts out of the general laws limiting the time for commencing contractual actions . ...’ ” Though it acknowledged that the official comments do not have the force of law, the Court of Appeals noted that applying the UCC’s four-year period of limitations to actions on open account would accomplish the goal identified in the comments of promoting “uniformity and consistency” among the jurisdictions. The Court of Appeals also noted that “[ojther jurisdictions that have addressed this question have favored applying the UCC limitations period to an action based on an open account related to the sale of goods.”
Judge O’CONNELL dissented, asserting that “[p]ayment on an open account triggers a new obligation, separate and distinct from an underlying agreement,” and therefore, the new obligation is governed by the six-year period of limitations in MCL 600.5807(8). Thus, Judge O’CONNELL would have reversed the judgment of the trial court.
This Court granted leave to appeal to determine whether an action on an open account relating to the sale of goods is subject to the four-year period of limitations in § 2725 of the UCC or the general six-year period of limitations applicable to contract actions in MCL 600.5807(8).
ii. standard of review
MCR 2.116(C)(7) allows a party to file a motion for summary disposition on the ground that a claim is barred because of the expiration of the applicable period of limitations. A movant under MCR 2.116(C)(7) is not required to file supportive material, and the opposing party need not reply with supportive material. Moreover, the contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant. Appellate review of a trial court’s summary disposition ruling pursuant to MCR 2.116(C)(7) is de novo. Questions of statutory interpretation are also reviewed de novo.
III. ANALYSIS
A. COLLECTION ACTIONS GENERALLY
Michigan has recognized a number of collection actions. These actions include open account claims, mutual and open account current claims, and account stated claims. The purpose of these causes of action is to recover sums due that arose out of a course of dealing between the parties.
Historically the common law has distinguished an open account from a mutual and open account current. An “open account” is traditionally defined as “ ‘1. [a]n unpaid or unsettled account. 2. [a]n account that is left open for ongoing debit and credit entries and that has a fluctuating balance until either party finds it convenient to settle and close, at which time there is a single liability.’ ” This Court has characterized an open account as “ ‘one which consists of a series of transactions and is continuous or current, and not closed or stated.’ ” By comparison, a “mutual account” is traditionally defined as “[a]n account showing mutual transactions between parties, as by showing debits and credits on both sides of the account.” Consistent with this traditional definition, this Court has characterized a mutual and open account current as an account that is both mutual and open, resulting from “a course of dealing where each party furnishes credit to the other on the reliance that upon settlement the accounts will be allowed, so that one will reduce the balance due on the other.”
An account stated action is based on “ ‘an agreement, between parties who have had previous transactions of a monetary character, that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance.’ ” Importantly, an open account may be converted into an account stated:
The conversion of an open account into an account stated, is an operation by which the parties assent to a sum as the correct balance due from one to the other; and whether this operation has been performed or not, in any instance, must depend upon the facts. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account. The parties may still impeach it for fraud or mistake.[ ]
In the past these claims have been conflated or treated inconsistently by the Legislature and Michigan courts. For example, the burden-shifting statute (now MCL 600.2145) has expressly included open account claims and claims on an account stated since as far back as the 1870s, but has never expressly included claims on mutual and open accounts. Furthermore, the accrual of mutual and open account claims is governed by MCL 600.5831, while no specific statutory provision exists for the accrual of either open account claims or claims on an account stated.
At times, this Court has not been a model of clarity when addressing collection actions. As previously discussed, this Court has characterized a mutual and open account current as an account that is both mutual and open, resulting from “a course of dealing where each party furnishes credit to the other on the reliance that upon settlement the accounts will be allowed, so that one will reduce the balance due on the other.” But in Fuerbringer v Herman the Court held that payment of money on an account is sufficient to render the account mutual. Allowing payments toward an account to be sufficient to render the account mutual is against the general authority. As observed in Williston on Contracts:
[I]t is generally held essential, in order to constitute such an account as shall fall within the principle in question, that there shall be mutual open, current dealings and claims subject to a future final balance.
A payment, therefore, given and received as partial discharge of an account for goods or services does not make the account mutual; it merely diminishes the amount due on a one-sided account.[ ]
The Fuerbringer Court dismissed this Court’s earlier decision in In re Hiscock Estate without analysis, leaving practitioners and lawmakers to wonder whether there is a difference in Michigan between an open account and an open and mutual account current. As recently as 2009, this Court considered whether an action to collect past due attorney fees was an open and mutual account current. While the Court concluded that the action was not an open and mutual account current, this holding was not based on the lack of mutual exchange of credit between the law firm and its client but instead on the fact that the underlying service contract expressly provided the terms of payment.
Notwithstanding these inconsistencies, the common thread in actions on accounts is that they arise “where the parties have conducted a series of transactions for which a balance remains to be paid.” We now turn to the instant matter, which involves an open account claim and an account stated claim.
B. ACTIONS ON AN ACCOUNT STATED
Of the three claims discussed in this opinion, the account stated claim is most clearly defined under Michigan law. An account stated “is a contract based on assent to an agreed balance, and it is an evidentiary admission by the parties of the facts asserted in the computation and of the promise by the debtor to pay the amount due.” This Court has characterized an account stated as “ ‘but an expression to convey the idea of a contract having an account for its consideration, and is no more an account than is a promissory note or contract, having a like consideration for its support.’ ” An account stated, like all contracts, requires mutual assent. Specifically, “[a]n account stated requires the manifestation of assent by both parties to the correctness of the statement of the account between them.”
In his treatise on contract law, Professor Arthur Corbin summarized the nature of an action on an account stated:
If a claimant renders an account and it is assented to as correct by the other party with an express or implied promise to pay, an action may be maintained on the promise. The account stated is a new, independent cause of action superseding and merging the antecedent causes of action represented by the particular items included in the computation.[ ]
In White v Campbell, this Court likened the obligation to pay the antecedent debt to that commonly associated with a promissory note:
[T]he agreed statement serves in place of the original account, as the foundation of an action. It becomes an original demand, and amounts to an express promise to pay the actual sum stated. The creditor becomes entitled to recover the agreed balance, in an action based on the fact of its acknowledgment by the debtor, upon an adjustment of their respective claims. The effect of the operation is said to be much the same as though the debtor had given his note for the balance.[ ]
The parties to an account stated need not expressly assent to the sum due, as there are instances when assent may be inferred from a party’s inaction-.
[A]s against a party receiving an account, and not objecting to it within a reasonable time, its correctness may be considered as admitted by him, and the balance as the debt; or, in other words, that the party rendering the account may, under such circumstances, treat it as an account stated .... If the party to whom the account is rendered, object[s] within a reasonable time, there is no room for inferring an admission of its correctness.[ ]
In other words, the debtor’s new promise to pay is a matter of express or implied contract, depending on the conduct of the parties. When the parties expressly agree to the sum due, the stated account forms an express contract. By contrast, when one party’s assent is in ferred from inaction, the stated account operates to form an implied contract. No matter the method of assent, the debtor in an account stated action has received goods or services without having paid for them, and an action exists when the price of those goods or services is greater than the sum paid.
The Court of Appeals held that because the transactions giving rise to the debt on account related to the sale of goods, the four-year period of limitations set forth in § 2725 of the UCC applies to plaintiffs account stated claim. The Court of Appeals was persuaded by a case from the Oregon Court of Appeals that characterized account stated claims by the nature of the underlying obligations comprising the account. Specifically, the Michigan Court of Appeals relied on Moorman Mfg Co of California, Inc v Hall, which stated that “ ‘ [although an account stated is based on a separate agreement between the parties, it relates to and cannot be divorced from the underlying sales transaction.’ ” But the Moorman Mfg case runs contrary to this Court’s prior pronouncements regarding the materiality of the underlying transactions in an account stated action. As early as 1857 this Court observed:
It is not necessary, in support of an account stated, to show the nature of the original transaction, or indebtedness, or to give the items constituting the account____Neither does the nature of the original transaction, out of which the acknowledgment of indebtedness grew, appear to be material.[ ]
It follows, then, that an action on an account stated is indeed an independent cause of action, separate and distinct from the underlying transactions giving rise to the antecedent debt. Therefore, it is immaterial whether the underlying transactions involved the sale of goods.
The Court of Appeals erroneously relied on the official comment to § 2725 of the UCC to arrive at its result. The official comments to the UCC do not have the force of law. When ascertaining the Legislature’s intent, a reviewing court should focus first on the plain language of the statute in question, and when the language of the statute is unambiguous, it must be enforced as written. Examining the plain language of § 2725, Professor Corbin concluded that, because an action on an account stated is not an action “for breach of any contract for sale,” the four-year limitations period does not apply to actions on an account stated:
Recent authorities hold that an action on an account stated arising out of a transaction in goods is subject to the four-year statute of limitations applicable to the underlying goods transaction. Despite the laudable goal of minimizing hardship and confusion for buyers and sellers “doing business on a nationwide scale,” the four-year limitation period of [§ 2725] is inapplicable to an action on an account stated. First, [§ 2725] states that an action “for breach of any contract for sale must be commenced within four years.” . .. An action on an account stated is not an action for the breach of a contract for sale. Rather, it is an action to enforce a subsequent promise to pay an account. Indeed, the action on such a promise is analogous to an action on a promise to pay embodied in a note or letter of credit. An action on either of these formal promises to pay is subject to the limitations period applicable to the promise to pay, not the underlying transaction, which might be a sale of goods.[ ]
Because the language of § 2725 plainly states that it only applies to actions on the sale of goods, and an action on an account stated is an action on a promise to pay a certain amount that has nothing to do with any underlying sales transactions, the Court of Appeals erred by relying on the official comment to § 2725 of the UCC. Further, even if the underlying debt stemmed from the sale of goods, the Court of Appeals erred by concluding that the four-year limitations period applies because the nature of the underlying transactions is immaterial.
Therefore, it being established that an account stated is “a contract based on assent to an agreed balance,” an action on an account stated is subject to the six-year limitations period governing general contract actions provided in MCL 600.5807(8).
Applying these legal principles to the present case, plaintiff submitted with its complaint a summary of the account and an “AFFIDAVIT OF ACCOUNT STATED.” Defendant did not expressly assent to the balance due as reflected in this affidavit. Nonetheless, plaintiff claims its statement of the account stood unimpeached at the time the trial court dismissed plaintiffs claims. Having erroneously concluded that plaintiffs claim was time-barred, the trial court did not consider whether defendant had properly objected to plaintiffs statement of the account. On remand, we direct the trial court to consider whether plaintiff presented evidence that defendant assented to plaintiffs statement of the account, either expressly or by implication.
c. actions on an open account
Like account stated claims, actions on an open account have long been recognized in Michigan. Nonetheless, the caselaw defining this claim is far less developed than the caselaw addressing accounts stated. This may be because a suit on an open account is, from a creditor’s perspective, a less desirable claim than an action on an account stated. In an action on an account stated, the creditor must present proof of the debtor’s express or implied assent to the balance due. Upon such proof, the underlying transactions become irrelevant. In an action on an open account, however, there is no assent to a balance due. Thus, the creditor may be required to establish the validity of the entries in the account. Additionally, open account claims were tradi tionally rooted in assumpsit. “Assumpsit” is defined as “1. An express or implied promise, not under seal, by which one person undertakes to do some act or pay something to another <an assumpsit to pay a debt>. 2. A common-law action for breach of such a promise or for breach of a contract .” With the adoption of the General Court Rules in 1963, assumpsit as a form of action was abolished. But notwithstanding the abolition of as-sumpsit, the substantive remedies traditionally available under assumpsit were preserved:
It is to be understood that the abolition of the forms of action does not abolish the remedies thereunder. If a cause of action is stated in the complaint showing the pleader entitled to relief, the appropriate substantive remedy will remain, no matter if the action is labeled as to form or is merely designated as a civil action.[ ]
Thus, there is no doubt that plaintiff can pursue a civil action on an open account. Unclear from our jurisprudence, however, is whether an action on an open account, like an action on an account stated, is an independent cause of action, separate and distinct from the underlying transactions giving rise to the antecedent debt, or a claim that is dependent on the underlying transactions.
This Court’s opinion in Goodsole v Jeffery is insightful in distinguishing open account claims from claims based on an antecedent debt that arises from an express contract defining the rights and liabilities of the parties. In Goodsole, the litigants agreed by oral contract that the plaintiff would provide the defendant a piano and the defendant would pay the plaintiff rent of $2.50 per month on the eighth day of each month commencing August 8, 1906. It appears the contract was for an indefinite term. The plaintiff kept a book of the charges and payments. The last charge for rent came on May 8, 1911, and the last payment made to the plaintiff was February 2, 1910. On August 30, 1916, the plaintiff brought suit to collect all unpaid rental charges through May 8, 1911. The plaintiff maintained that since the debt was on an open and mutual account, the entire amount was due and owing. The defendant argued that only unpaid rental charges that had accrued within 6 years of the complaint were collectable. This Court held that the plaintiff failed to establish the existence of an open and mutual account current:
I know of no decision of this court, and think there is none to be found in any jurisdiction, holding that where the dealings of the parties relate entirely to and are governed by a special contract for the payment of money, at agreed upon periods, an open mutual account is established by performance of the contract obligation, whether a book account of it is kept or not.. .. [T]he defendant having pleaded the statute of limitations, judgment should have been directed in his favor .. . .[ ]
More than 20 years after Goodsole, this Court again considered the distinction between a claim on an account and a claim based on the underlying transactions giving rise to the debt that arises from an express contract defining the rights and liabilities of the parties. In In re Dei’s Estate, the plaintiff, an attorney, performed legal services for Christina Dei from 1925 to 1933, during which time Dei only made two payments on the account. Dei died in 1935. After the plaintiff was made aware of Dei’s death, he brought a claim against her estate for the unpaid balance on the account. The estate defended against the claim by arguing that any legal services provided more than six years before Dei’s death were barred by the statute of limitations. The Court framed the issue as follows:
As to whether the whole or any part of plaintiffs claim is barred by the statute of limitations, we must first determine whether or not the account as presented was a mutual and open account current. If so, the [entire amount due on the account is collectable.] If not, only those items charged against decedent in her lifetime can be allowed that accrued within six years prior to her death.[ ]
In concluding that the relationship between the plaintiff and Dei created an open and mutual account, the Court distinguished its holding in Goodsole. Unlike Goodsole, there was no agreement that defined the terms of payment for the services rendered. Thus, because the particulars of the decedent’s credit relationship with her lawyer were not governed by the terms of the underlying services agreement, the plaintiff had a valid mutual and open account current claim.
This Court recently reexamined In re Dei’s Estate in Seyburn, which also involved a claim for unpaid legal fees. In Seyburn, this Court examined whether a claim for unpaid attorney fees was an action on an open and mutual account current. The Court looked to the retainer agreement and concluded that the parties’ credit relationship was expressly defined by the explicit terms of their agreement for services:
In the present case, it is undisputed that plaintiff and defendant entered into a signed contract containing specific terms. The contract stated that plaintiff agreed to provide legal services to defendant and, in turn, defendant would make payments of money to plaintiff. Specifically, the contract provided for plaintiff to send a billing statement by the 20th of each month, using hourly billing at an established rate, and also required defendant to pay within 10 days of the date of the statement. In addition, the contract defined the liabilities of both parties.[ ]
Thus, because the terms of the parties’ credit relationship were provided for in their contract for services, a mutual and open account current claim could not be established on the basis of the parties’ mere failure to perform pursuant to their contractual obligations.
We hold that when an integral component of a transaction for goods or services is an express agreement for the periodic payment of money, an open account claim cannot be established by the mere performance or nonperformance of the contract obligation. Under those circumstances, the creditor’s remedy is to timely pursue a breach of contract action when the debtor fails to live up to the terms of the underlying agreement. But when the credit relationship is not defined as an integral part of the transaction for goods or services, and instead arises from a course of dealing between the parties, an open account claim may arise by implied contract. Applying this holding to the present case, it is unclear whether an integral component of the parties’ transactions was an express agreement for the periodic payment of money. Thus, we direct the trial court to determine as much on remand.
There are several factors that weigh in favor of our holding today. Significantly, for more than 150 years, Michigan courts have recognized actions on an open account. Likewise, for the same period of time our Legislature has recognized this claim, along with a claim for an account stated. These suits are premised on the debt due on the account and rarely discuss the underlying transactions, except to the extent that the transactions provide a defense to the debt.
Recognition of an action on an open account as an independent claim that arises out of the course of dealing between a creditor and debtor also promotes commerce without encouraging creditors to file lawsuits to preserve their right to collect on debts. Assume for example that a merchant sold goods and services on account whereby goods and services would be regularly delivered to a purchaser who in turn made sporadic payments in varying amounts as the relationship developed. As the parties’ relationship nears its fourth year, the merchant would have to insist on settlement of the account or risk the possibility that all or part of the balance due on account could be declared uncollectable after the four-year limitations period on the sale of goods expires. Even if this merchant dealt exclusively in the sale of services, he would face the same dilemma in year six.
We must next determine what limitations period applies to open account claims. For all the reasons stated previously in our analysis of the limitations period for accounts stated, we reject the notion that § 2725 of the UCC applies when the underlying account arises from the sale of goods. The language of § 2725 plainly states that it only applies to actions for breach of contract for the sale of goods. An open account claim is not a breach of contract action for the sale of goods; it is an action to collect on the single liability stemming from the parties’ credit relationship regardless of the underlying transactions comprising the account. Thus, the Court of Appeals erred by holding that the four-year period of limitations provided in § 2725 of the UCC applies to actions on an open account.
We further conclude that an open account, like an account stated, is premised on an express or implied contract. In some instances, the credit relationship between the creditor and debtor may be defined by an express contract. Yet, in other instances, the credit relationship will arise from the parties’ course of dealing. Having established that an open account claim is an action for breach of an express or implied contract, we conclude that open account claims are subject to the six-year period of limitations governing general contract actions provided in MCL 600.5807(8).
An open account claim generally accrues on the date of each item proved in the account. Furthermore, those items “are severally barred when as to them the statute has run.” Partial payment on an account, however, may toll or even remove the statute of limitations under certain circumstances. As recently as 2000, this Court unanimously held that
a partial payment [on a debt] restarts the running of the limitation period unless it is accompanied by a declaration or circumstance that rebuts the implication that the debtor by partial payment admits the full obligation.
This rule is at least as old as Miner v Lorman, 56 Mich 212, 216; 22 NW 265 (1885). Though other aspects of Miner led this Court to conclude that the plaintiff could not prevail in his suit, Justice Cooley’s opinion for a unanimous Court included this explanation:
“The statute does not prescribe what effect part payment of a demand shall have, but it is familiar law that it operates as an acknowledgment of the continued existence of the demand, and as a waiver of any right to take advantage, by plea of the statute of limitations, of any such lapse of time as may have occurred previous to the payment being made. The payment is not a contract; it is not in itself even a promise; but it furnishes ground for implying a promise in renewal from its date, of any right of action which before may have existed.”
The Supreme Court frequently has restated this principle. In Hiscock v Hiscock, 257 Mich 16, 25; 240 NW 50; 78 ALR 953 (1932), a dispute concerning payments on a mortgage, the Court said:
“A voluntary and unqualified payment subsequent to the bar [of the statute of limitations] is the best evidence that the debtor does not claim his legal rights, but, on the contrary, intends to waive them and to perform his moral obligation to pay the whole of the just debt.”
With little discussion, the principle was applied in Wagner v Kincaid, 291 Mich 262, 266; 289 NW 154 (1939). To the same end, we explained in Collateral Liquidation, Inc v Palm, 296 Mich 702, 704; 296 NW 846 (1941), that “[t]he effect of the payment under the statute is equivalent to a new promise.” And in Beaupre v Holzbaugh, 327 Mich 101, 107-108; 41 NW2d 338; 27 ALR2d 532 (1950), this Court said, “In the absence of any showing that payment was not intended by the parties to imply a new promise to pay, the statute was tolled by the payment and the note was not outlawed when suit was begun.”
In recent years, the Court of Appeals has likewise applied this rule. Alpena Friend of the Court ex rel Paul v Durecki, [195 Mich App 635; 491 NW2d 864 (1992)]; Federal Deposit Ins Corp v Garbutt, 142 Mich App 462, 468; 370 NW2d 387 (1985); Bonga [v Bloomer, 14 Mich App 315, 319; 165 NW2d 487 (1968)].[ ]
Indeed, consistently with the quoted passage, this Court concluded in Yeiter that the partial payments made less than six years before commencement of the action operated to renew the defendant’s promise to pay the entire amount owed, thereby restarting the six-year limitations period provided in MCL 600.5807(8).
In the instant case, plaintiffs May 9, 2005, delivery of concrete supplies was accompanied by an invoice in the amount of $152.98. On May 13, 2005, defendant rendered payment in the amount of the invoice, but did not pay the alleged balance due. Relying on this Court’s decision in Seyburn, the trial court held that defendant’s May 13, 2005, payment to plaintiff “was a disconnected event which would give rise to a separate obligation on the part of the [defendant. .. Seyburn has no bearing on the accrual of plaintiffs open account claim. Indeed, the instant case is seemingly devoid of an event, such as the termination of the relationship in Seyburn, that would suggest that defendant’s May 13, 2005, payment was disconnected from the other underlying transactions giving rise to plaintiffs claim. Accordingly, the trial court’s conclusion to that effect is questionable. Thus, we direct the trial court to revisit on remand its determination that the May 13, 2005, payment was disconnected from the other transactions in light of this opinion. If the trial court finds that the May 13, 2005, payment — or any other payment within the six-year period preceding commencement of this suit — operated to renew defendant’s promise to pay its entire indebtedness to plaintiff, plaintiffs action will have been commenced within the six-year limitations period provided in MCL 600.5807(8).
IV CONCLUSION
Because both an action on an account stated and one on an open account are distinct from the underlying transactions giving rise to the antecedent debt, neither is governed by the four-year limitations period provided in § 2725 of the UCC. We conclude that both open account claims and actions on account stated are subject to the six-year period of limitations provided in MCL 600.5807(8). Thus, we reverse the contrary judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.
Young, C.J., and Cavanagh, Kelly, and McCormack, JJ., concurred with Zahra, J.
MCL 440.1101 et seq.
Defendant takes issue with the amount claimed due hy plaintiff. Defendant maintains plaintiff owed defendant outstanding sums as a result of work done on a nuclear plant in Midland, a project that was abandoned by Consumers Power Company in 1984. Thus, defendant claims that it was entitled to offset the entire amount that plaintiff claimed it was owed “if such old events were to he litigated.” Plaintiff responds that the alleged open account on which its claim is predicated began in October 1991, more than 6 years after the nuclear plant project was abandoned. Thus, plaintiff claims, any counterclaim for setoff was barred at the time plaintiffs claim accrued.
The record is not entirely clear regarding the amount that plaintiff claims it is owed. Contrary to the figures used in the complaint and the amended complaint, in plaintiffs brief on appeal in this Court it claims it is owed $91,820.35 for materials provided over the course of the business relationship and $1,362.40 for interest on the account and late payment charges.
In support of its account stated claim, plaintiff attached as exhibits to its complaint a summary of the account and an “AFFIDAVIT OF ACCOUNT STATED,” the combination of which verified the alleged amount due pursuant to MCL 600.2145.
Because the trial court granted summary disposition in favor of defendant solely on the basis of its determination that the UCC’s four-year limitations period applied, the court did not decide whether the parties had assented to a sum stated, either expressly or by implication because of defendant’s inaction, thus converting the open account claim to an account stated claim. Nor did the trial court find that defendant’s May 9, 2005, payment of $152.98 revived plaintiffs cause of action.
Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 293 Mich App 66; 810 NW2d 277 (2011). The Court of Appeals described the statutory context of the dispute:
The Revised Judicature Act provides a limitations period of six years “for ... actions to recover damages . .. due for breach of contract.” MCL 600.5807(8). All sales of goods are governed by Article 2 of the UCC, MCL 440.2102. Section 2725 of the UCC, MCL 440.2725, provides that “[a]n action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued.” .. .
.. . “In actions brought to recover the balance due upon a mutual and open account current, the claim accrues at the time of the last item proved in the account.” MCL 600.5831. Plaintiff contends that its claim accrued on May 13, 2005, the last date on which defendant made a payment. Assuming, without deciding, that defendant’s May 13, 2005, payment may be considered a payment toward the parties’ open account, plaintiffs action was filed in August 2009, more than four years after the May 2005 payment. Thus, if plaintiffs action is governed by the four-year limitations period in the UCC, it is untimely. [Id. at 70-71 (citation omitted).]
The Court of Appeals referred only to plaintiffs open account action. It is clear from the context of the Court of Appeals’ decision that the Court’s analysis applied to plaintiffs open account action and its account stated action.
Id. at 72, citing Collateral Liquidation, Inc v Palm, 296 Mich 702, 704; 296 NW 846 (1941), Miner v Lorman, 56 Mich 212, 216; 22 NW 265 (1885), and Bonga v Bloomer, 14 Mich App 315; 165 NW2d 487 (1968).
Fisher Sand & Gravel, 293 Mich App at 72.
The official comments are prepared by the National Conference of Commissioners on Uniform State Laws and the American Law Institute. Thomson West, Uniform Commercial Code: Official Text and Comments (2012-2013 ed), Preface, p iii.
Fisher Sand & Gravel, 293 Mich App at 73 (citation omitted).
Id.
Id. Specifically, the Court of Appeals relied on a case from the Oregon Court of Appeals, Moorman Mfg Co of California, Inc v Hall, 113 Or App 30, 33; 830 P2d 606 (1992), which held that
[a]lthough an account stated is based on a separate agreement between the parties, it relates to and cannot be divorced from the underlying sales transaction. The UCC drafters intended that one limitation apply to all transactions involving the sale of goods, regardless of the theory of liability asserted. [Citation omitted.]
Fisher Sand & Gravel, 293 Mich App at 76 (O’Connell, J., dissenting).
Id. at 78.
Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 491 Mich 914 (2012). Absent from our grant order is any reference to account stated actions. Thus it appears that at the time leave was granted we failed to appreciate the distinction between open accounts and accounts stated.
Patterson v Kleiman, 447 Mich 429, 434 n 6; 526 NW2d 879 (1994).
Spiek v Dep’t ofTransp, 456 Mich 331, 337; 572 NW2d 201 (1998).
In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999).
Seyburn, Kahn, Ginn, Bess, Deitch & Serlin, PC v Bakshi, 483 Mich 345, 355-356; 771 NW2d 411 (2009), quoting Black’s Law Dictionary (7th ed).
A Krolik & Co v Ossowski, 213 Mich 1, 7; 180 NW 499 (1920) (citation omitted).
Black’s Law Dictionary (7th ed), p 18.
In re Hiscock Estate, 79 Mich 536, 538; 44 NW 947 (1890).
Leonard Refineries, Inc v Gregory, 295 Mich 432, 437; 295 NW 215 (1940), quoting Thomasma v Carpenter, 175 Mich 428, 434; 141 NW 559 (1913).
While an open account may be converted into an action on an account stated, we are aware of no authority that requires an open account as a prerequisite to an action on an account stated.
White v Campbell, 25 Mich 463, 468 (1872) (in which the plaintiff brought action on an account stated).
To the extent the Legislature desires to clarify this area of the law, it might consider revisiting the statutory framework that corresponds with these collection actions.
See How Stat 7525; 1871 CL 5954.
See MCL 600.5831 (“In actions brought to recover the balance due upon a mutual and open account current, the claim accrues at the time of the last item proved in the account.”).
In re Hiscock Estate, 79 Mich at 538.
Fuerbringer v Herman, 225 Mich 76, 79; 195 NW 693 (1923).
31 Williston, Contracts (4th ed), § 79.26, pp 389-390 (citations omitted).
Fuerbringer, 225 Mich at 79.
Seyburn, 483 Mich at 348.
1 Am Jur 2d, Accounts and Accounting, § 8, p 628.
13 Corbin, Contracts (rev ed), § 72.4(2), p 478, citing Restatement Contracts, 2d, § 282, comment c.
A Krolik & Co, 213 Mich at 8, quoting Auzerais v Naglee, 74 Cal 60; 15 P 371 (1887).
13 Corbin, Contracts (rev ed), § 72.4(2), p 481.
Id. at § 72.4, pp 466-467 (emphasis added).
White, 25 Mich at 468 (citations omitted) (emphasis altered).
White, 25 Mich at 469, citing Lockwood v Thorne, 11 NY 170 (1854), and Lockwood v Thorne, 18 NY 285 (1858).
An account stated is an implied-in-faet contract when one party assents by implication because the requisite mutual assent is inferred from the conduct of the parties. See Cascaden v Magryta, 247 Mich 267, 270; 225 NW 511 (1929).
13 Corbin, Contracts (rev ed), § 72.1(3), p 457. Historically, a promise resulting from an account stated
was enforced because it was a promise to pay a pre-existing debt called by the courts “past” consideration. In reality, the promise is enforced as other subsequent promises, such as a subsequent promise after the receipt of a material benefit or the promise to pay a debt that is barred by the statute of limitations. In each of these factual situations, the retention of a benefit previously received, the goods or services previously rendered, is unjust or the retention of the prior transfer of goods or services cannot be justified on the basis of a legal principle or a legal relationship. This is the fundamental reason for the enforcement of the promise. [Id. (citations omitted).]
Fisher Sand & Gravel, 293 Mich App at 74, quoting Moorman Mfg, 113 Or App at 33.
Stevens v Tuller, 4 Mich 387, 388-389 (1857).
Shurlow v Bonthuis, 456 Mich 730, 735 n 7; 576 NW2d 159 (1998), citing White & Summers, Uniform Commercial Code (3d ed), § 4, p 12; see also Prime Fin Servs LLC v Vinton, 279 Mich App 245, 260 n 6; 761 NW2d 694 (2008).
Klooster v City of Charlevoix, 488 Mich 289, 296; 795 NW2d 578 (2011), citing Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
Sun Valley, 460 Mich at 236.
MCL 440.2725.
13 Corbin, Contracts (rev ed), § 72.4(2), pp 472-473 (citations omitted).
See also MCL 440.2102 (stating that article 2 of the UCC applies to transactions in goods).
13 Corbin, Contracts (rev ed), § 72.4(2), p 478.
A cause of action on an account stated accrues upon an adjustment of the parties’ respective claims against one another. White, 25 Mich at 468 (“The creditor becomes entitled to recover the agreed balance, in an action based on the fact of its acknowledgement by the debtor, upon an adjustment of their respective claims[.Y’) (emphasis added). In other words, the accrual of an account stated claim “occurs when assent to the statement of account is either expressed or implied....” 13 Corbin, Contracts (rev ed), § 72.4(2), p 473. Further, it has also long been established in Michigan law that payment on an account stated renews the running of the period of limitations. Miner, 56 Mich at 216. In Miner, Chief Justice Cooley opined:
[Partial payment of a demand] operates as an acknowledgment of the continued existence of the demand, and as a waiver of any right to take advantage, by plea of the statute of limitations, of any such lapse of time as may have occurred previous to the payment being made. The payment is not a contract; it is not in itself even a promise; but it furnishes ground for implying a promise in renewal from its date, of any right of action which before may have existed, [Id.]
While defendant does not contest that it owes plaintiff, it does contend that it should be allowed to offset the amount owed plaintiff against money plaintiff owes defendant from prior dealings. This contention is inconsequential to the issue before this Court and, therefore, we take no position on it.
See Locke v Farley, 41 Mich 405, 406; 1 NW 955 (1879) (“The action was brought on an account for goods alleged to have been sold and delivered to Locke by the defendants in error as a partnership under the name of Farley, Hawey & Co.” A central issue to the case was whether the parties’ affidavits met the requirements of 1871 CL 5954 — one of many predecessors of the modern-day burden-shifting statute, MCL 600.2145. The former statute applied to accounts stated and open accounts alike, as does the current statute); Snyder v Patton & Gibson Co, 143 Mich 350, 351; 106 NW 1106 (1906) (“The suit was brought to recover an unpaid balance upon an account for labor.”); Star Steel Supply Co v White, 4 Mich App 178, 180; 144 NW2d 673 (1966) (“The plaintiff’s suit is based on a statement of the open account with an affidavit of open account. . . .”).
While a creditor may establish a prima facie case of indebtedness in an open account action by annexing both an affidavit of the amount due and a copy of the account to the complaint pursuant to MCL 600.2145, that action is not required to commence an open account action. A creditor may instead prove his or her account “in the ancient way” by offering testimony and other evidence demonstrating indebtedness. McHugh v Butler, 39 Mich 185, 186 (1878) (“Here the affidavit was made out of time, and when the plaintiff went to trial his situation was no better than it would have been if no affidavit had been made. He was required to prove his case in the ancient way.”); see also Snyder, 143 Mich at 351-352.
See, e.g., Morrill v Bissell, 99 Mich 409, 412; 58 NW 324 (1894) (“Plaintiff... commenced an action of assumpsit in the circuit court. .. upon an account for goods sold and delivered. The suit was by declaration upon the common counts.”); McHugh, 39 Mich 185 (an assumpsit action in which the plaintiff “sued to recover on an open account and served with the declaration a copy of the account and of an affidavit made by him of the amount due”); Gordon v Sibley, 59 Mich 250, 251; 26 NW 485 (1886) (“[Pllaintiff declared orally in assumpsit for goods, wares, and merchandise sold and delivered by the plaintiff to the defendant, at the defendant’s request, during the year 1883, and claimed damages, $100.”); Grand Dress, Inc v Detroit Dress Co, 248 Mich 447, 448; 227 NW 723 (1929) (“This suit was brought in assumpsit upon an open account. The declaration was on the common counts, accompanied by a bill of particulars.”).
Black’s Law Dictionary (9th ed), p 142.
The Michigan Court Rules state that “[t]here is one form of action known as a ‘civil action.’ ” MCR 2.101(A). Former GCR 1963, 110.3 abolished the technical forms of pleading:
All common counts, general issues, demurrers, pleas, fictions and technical forms of action or pleading, are abolished. The form and sufficiency of all motions and pleadings shall be determined by these rules, construed and enforced to secure a just, speedy, and inexpensive determination of all controversies on their merits. [Reprinted in 1 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 176.]
Committee Comment, reprinted in 1 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), p 179 (emphasis added).
Goodsole v Jeffery, 202 Mich 201; 168 NW2d 461 (1918).
Id. at 203.
In re Dei’s Estate, 293 Mich 651, 652-654; 292 NW 513 (1940). Although In re Dei’s Estate involved an action on a mutual and open account current, we see no reason why the rationale employed ought not apply to actions on an open account.
Id. at 655-656.
Id. at 656-658.
Seyburn, 483 Mich 345.
Id. at 357.
See Goodsole, 202 Mich at 203; In re Dei’s Estate, 293 Mich at 656-658; Seyburn, 483 Mich at 357.
Justice Markman, similarly to the out-of-state authority on which he relies, recognizes that article 2 of the UCC governs individual sales on credit but declines to acknowledge a distinction between individual sales on credit and serial sales on credit that lack an express agreement for the periodic payment of money that are melded into an account. Any lack of statutory analysis in this opinion stems from the absence of any express mention of actions on accounts in article 2 of the UCC. As previously discussed, this Court’s treatment of these collection actions has been anything but a model of clarity and consistency, and the disagreement between Justice Markman and the majority of this Court is not an unreasonable one.
Grand Dress, 248 Mich at 448-449 (in which the defendant, through its counteraffidavit, not only admitted indebtedness regarding some items but also disputed some ledger entries on the grounds that the plaintiff had allegedly increased the agreed-to price for a number of items hy $0.25); Star Steel Supply, 4 Mich App at 181-183 (in which the defendant disputed a number of charges on an open account in response to the plaintiffs "affidavit of open account”).
See also MCL 440.2102 (stating that article 2 of the UCC applies to transactions in goods).
See the text accompanying notes 49-51 of this opinion. While Professor Corbin’s analysis expressly relates to an account stated, it is informative and persuasive with regard to an open account claim. See 13 Corbin, Contracts (rev ed), § 72.4(2), pp 472-473. While § 2725 applies to actions “for breach of any contract for sale,” an open account claim is no more an action for a breach of a contract for sale than is an account stated claim. (Emphasis added.) Rather, an open account claim is an action to recover the single liability stemming from the parties’ credit relationship. Like an account stated claim, an open account claim is analogous to “an action on a promise to pay embodied in a note or letter of credit.” Id. at p 473. As Professor Corbin noted, an action on a note or letter of credit “is subject to the limitations period applicable to the promise to pay, not the underlying transaction, which might be a sale of goods.” Id.
See the text accompanying note 68 of this opinion. Of course, when the credit relationship is provided for by the terms of the parties’ contract, those terms shall govern. A credit card relationship is an example of this type of contract.
See Star Steele Supply, 4 Mich App at 180 (in which the plaintiff entered into a course of dealings with the defendant, selling goods, wares, merchandise, and services on open account); In re Dei’s Estate, 293 Mich at 652-654 (in which the plaintiff provided a variety of services to the decedent over the course of years, and the decedent made sporadic payments toward the account over the same).
1 Am Jur 2d, Accounts and Accounting, § 22, p 644.
Id.
Id. at § 24, p 646.
Yeiter v Knights of St Casimir Aid Society, 461 Mich 493, 497-499, 607 NW2d 68 (2000) (alteration in original).
Id. at 499-501.
Seyburn, 483 Mich 345.
This Court concluded in Seyburn that the parties’ relationship was governed by the explicit terms of their contract and that the plaintiffs claim accrued upon the termination of the attorney-client relationship. Seyburn, 483 Mich at 348. | [
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Per Curiam.
We reverse the judgment of the Court of Appeals because it improperly applied the last antecedent rule. We reinstate the opinion and order of the Wayne Circuit Court that granted summary disposition in favor of defendant.
The facts of this case are not in dispute. In 1994 plaintiff, Hurticene Hardaway, was appointed to the position of “principal attorney” in the Office of Corporation Counsel for defendant, Wayne County. Importantly, her appointment did not require confirmation by the Wayne County Commission. Plaintiff served in her position for approximately 13 years. After her employment ended in 2003, plaintiff submitted to the Wayne County Director of Human Resources three successive requests for additional life and health insurance benefits. Defendant denied her request. Plaintiff brought the instant suit, seeking a declaratory judgment and claiming breach of contract and promissory estoppel.
Plaintiff argues she is entitled to additional benefits under Resolution No. 94-903, adopted by the Wayne County Commission in 1994. The resolution provides in pertinent part:
2. If a person is separated from the County after January 1, 1994, with at least a total of eight years of County service, and has served as an elected Executive Officer, the Deputy Executive Officer, or an Assistant Executive Officer of the County, or as a County Commissioner, or as an appointed department head or deputy department head, or an appointee other than a member of a board or commission who is confirmed by the County Commission pursuant to Section 3.115(4) of the Wayne County Charter, or as an appointed Chief of Staff for an elected official or legislative body pursuant to an organizational plan, or the appointed head of one of the support divisions of the County Commission, that person shall be entitled to the same insurance and health care benefits... as a retiree from the Defined Benefit Plan 1. [Emphasis added.]
The circuit court granted summary disposition for defendant. The circuit court interpreted the phrase “an appointee other than a member of a board or commission who is confirmed by the County Commission pursuant to Section 3.115(4) of the Wayne County Charter” as covering an appointee who was (1) confirmed by the county commission and (2) not a member of a board or commission. Because plaintiff, a principal attorney, was not confirmed by the county commission, and because she did not otherwise qualify for additional benefits under the resolution, the circuit court determined that plaintiff was not entitled to the “same insurance and health care benefits ... as a retiree from the Defined Benefit Plan 1.”
The Court of Appeals reversed in a published opinion. The Court found the resolution ambiguous because the phrase “who is confirmed by the County Commission pursuant to Section 3.115(4) of the Wayne County Charter” is equally susceptible of more than one meaning. According to the Court of Appeals panel, the phrase could be interpreted as the circuit court read it — as providing benefits to an appointee who was confirmed by the county commission but was not a member of a board or commission — but it could also be interpreted as providing benefits to any appointee, whether confirmed or not, as long as that appointee was not confirmed by the commission to membership of a board or commission. Under the latter interpretation (the “any appointee” construction), plaintiff would be entitled to additional benefits as an appointee who was not a member of a board or commission.
The Court of Appeals resolved this alleged ambiguity by resorting to the last antecedent rule, a rule of statutory construction that provides that “a modifying or restrictive word or clause contained in a statute is confined solely to the immediately preceding clause or last antecedent, unless something in the statute requires a different interpretation.” Applying the last antecedent rule to the resolution, the Court of Appeals determined that the modifying and restrictive clause— “who is confirmed by the County Commission pursuant to Section 3.115(4) of the Wayne County Charter”— applied only to the immediately preceding phrase: “other than a member of a board or commission.” Thus, the Court of Appeals determined that the last antecedent rule favored the “any appointee” construction. We disagree and reverse.
If the language of the resolution is certain and unambiguous, courts must apply the resolution as written. Here, the resolution’s language is not ambiguous. Under the “any appointee” construction, the clause “who is confirmed by the County Commission pursuant to Section 3.115(4) of the Wayne County Charter” modifies the phrase “other than a member of a board or commission.” But the Wayne County Charter already requires that all members of boards and commissions be confirmed by the county commission. Thus, the “any appointee” construction takes what is grammatically an essential clause — “who is confirmed ...” — and effectively renders it a nonessential clause. In other words, under the “any appointee” construction, the phrase at issue collapses to “an appointee other than a member of a board or commission.” The alternative reading of the statute that the circuit court adopted does not suffer in this respect.
There are additional indications that the “any appointee” construction should be disfavored. To begin with, all the specific covered positions listed in the resolution are high-level administrative positions. It thus makes sense that the proper reading of the provision concerning appointees at issue here would limit its application to only individuals appointed to positions so significant that they require county commission confirmation. Further, defendant, on whose behalf the resolution was drafted and enacted and which has applied the resolution for nearly 20 years, has never interpreted the language in question as providing benefits to appointees who were not confirmed by the county commission.
Finally, it bears emphasizing that the last antecedent rule should not be applied blindly. As we have warned before, the last antecedent rule should not be applied if “something in the statute requires a different interpretation” than the one that would result from applying the rule. As explained, because the Wayne County Charter requires all members of boards and commissions to be confirmed, the “any appointee” construction would render the confirmation requirement redundant. Moreover, the last antecedent rule does not mandate a construction based on the shortest antecedent that is grammatically feasible; when applying the last antecedent rule, a court should first consider what are the logical metes and bounds of the “last” antecedent.
In light of these reasons, we hold that the language “an appointee other than a member of a board or commission who is confirmed by the County Commission pursuant to Section 3.115(4) of the Wayne County Charter” extends additional insurance and healthcare benefits only to appointees who were (1) confirmed by the county commission and (2) not members of a board or commission. Accordingly, the Court of Appeals erred by reversing the circuit court’s grant of summary disposition in favor of defendant on plaintiffs declaratory judgment claim. In lieu of granting defendant’s application for leave to appeal, we reverse the judgment of the Court of Appeals and remand this case to the circuit court for reinstatement of its order granting summary disposition in favor of defendant.
Young, C.J., and Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred.
Cavanagh, J., concurred in the result only.
Hardaway v Wayne Co, 298 Mich App 282; 827 NW2d 401 (2012).
Id. at 288; see also Lansing Mayor v Pub Serv Comm, 470 Mich 154, 166; 680 NW2d 840 (2004).
Stanton v Battle Creek, 466 Mich 611, 616; 647 NW2d 508 (2002).
See Turner v Auto Club Ins Assn, 448 Mich 22, 27; 528 NW2d 681 (1995).
See Lansing Mayor, 470 Mich at 166.
Section 4.385 of the Wayne County Charter provides, in relevant part, that “members of boards and commissions ... shall be appointed by the [chief executive officer] with the approval of a majority of [county commissioners] serving.”
While we recognize that defendant’s interpretation of the resolution is not binding on this Court, defendant’s 20-year construction of the resolution should be given at least “respectful consideration” and should not be overruled without “cogent reasons.” In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 103; 754 NW2d 259 (2008) (quotation marks and citation omitted).
Stanton, 466 Mich at 616; see also Duffy v Dep’t of Natural Resources, 490 Mich 198, 221; 805 NW2d 399 (2011).
See Duffy, 490 Mich at 215.
See 2A Singer & Singer, Sutherland Statutory Construction (7th ed), § 47.33, pp 487-489 (“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is ‘the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.’ ”) (emphasis added; citation omitted). | [
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Mary Beth Kelly, J.
These cases present two related issues under Michigan’s no-fault act: (1) whether a child of divorced parents who has a legal residence in both parents’ homes and who is injured in an automobile accident can be “domiciled” in more than one household within the meaning of MCL 500.3114(1); and (2) whether a family court order establishing the custody of minor children is conclusive evidence of a child’s domicile for purposes of determining coverage under MCL 500.3114(1). We hold, consistent with traditional definitions of the term “domicile” under the common law and as that term is used in MCL 500.3114(1), that a child of divorced parents has only one domicile at any given point in time. Further, in the event that the child’s parents are divorced and a family court has entered an order relating to custody, we hold, consistent with the common law of domicile as it pertains to minors and the legally binding nature of custody orders, that the child’s domicile is established by operation of law and that the custody order is thus determinative of the child’s domicile for all purposes, including the no-fault act.
In both Grange and ACIA, the respective judgment of divorce and custody order conclusively established the minor children’s domiciles. Accordingly, we reverse the judgment of the Court of Appeals in Grange, which erroneously held that a minor of divorced parents can have two domiciles, and we remand to the circuit court for entry of summary disposition in favor of Grange Insurance Company. In ACIA, we reverse the judgment of the Court of Appeals, which erred by concluding that a question of fact existed regarding the child’s domicile, and we remand to the circuit court for entry of summary disposition in favor of ACIA.
I. FACTS AND PROCEDURAL HISTORY
A. GRANGE v LAWRENCE
Edward Lawrence and Laura Rosinski were married in 1997 and had two daughters, Katelyn and Josalyn, the latter of whom is the deceased insured in this case. Lawrence and Rosinski divorced in 2005; Rosinski remained in the marital home and Lawrence moved into his parents’ home, both located in Muskegon, Michigan. The judgment of divorce granted Lawrence and Rosinski joint legal custody of Josalyn and Katelyn, but Rosinski was given “primary physical custody” of the girls. The judgment of divorce provided Lawrence with frequent parenting time, including alternating weekends, Wednesday evenings, alternating holidays, liberal phone contact, and liberal parenting time when Rosinski was unavailable. The judgment of divorce further provided:
A parent whose custody or parenting time of a child is governed by this order, shall not change the legal residence of the child except in compliance with [MCL 722.31], which prohibits moving a child out of the State of Michigan or greater than 100 miles from the non-custodial parent without a court order. The party awarded custody must notify the Friend of the Court, in writing, immediately, when the minor child is moved to another address.
On September 24, 2009, eight-year-old Josalyn was a passenger in a car owned and driven by Rosinski when another driver ignored a stop sign and hit Rosinski’s vehicle, resulting in fatal injuries to Josalyn. Rosinski and Lawrence were appointed as joint personal representatives of Josalyn’s estate.
After the accident, Rosinski and Lawrence submitted claims for personal injury protection (PIP) insurance benefits to their respective insurers. Rosinski was the named insured on an automobile insurance policy provided by Farm Bureau General Insurance Company of Michigan (Farm Bureau); Lawrence was the named insured on an automobile insurance policy provided by Grange Insurance Company (Grange). Farm Bureau insured the car that was involved in the accident and Grange did not insure any vehicle involved in the accident. With regard to Rosinski’s claim, Farm Bureau paid more than $30,000 in PIP benefits for Josalyn’s injuries and death; Grange denied Lawrence’s claim for PIP benefits.
Subsequently, Farm Bureau asserted that Grange was in the same order of priority for the payment of PIP benefits because, in its view, Josalyn was “domiciled” in both parents’ homes pursuant to MCL 500.3114(1); Farm Bureau thus sought from Grange partial reimbursement of benefits pursuant to MCL 500.3115(2). Grange denied the claim and filed a complaint for declaratory relief, seeking a declaration that Josalyn was domiciled with Rosinski, not Lawrence, at the time of the accident. Grange asserted that it was not required to reimburse Farm Bureau for any of the PIP benefits that Farm Bureau had paid because Josalyn was not “domiciled” with Lawrence at the time of the accident as required by MCL 500.3114(1), and Michigan law does not recognize dual domiciles. Grange further asserted that it was not obligated to pay PIP benefits for Josalyn’s injuries because Josalyn was not a named insured under its policy.
Farm Bureau filed a counterclaim seeking a declaratory judgment that Josalyn was domiciled with each of her parents at the time of the accident and that Farm Bureau was entitled to partial reimbursement of the PIP benefits it had paid. Farm Bureau also argued that the Grange policy conflicted with the no-fault act by excluding Josalyn as an insured through its automatic attribution of domicile to the residence of the custodial parent.
Both insurance companies filed motions for summary disposition pursuant to MCR 2.116(0(10) and the circuit court granted summary disposition to Farm Bureau. Applying the factors that are traditionally used to determine domicile under the no-fault act as set forth in Workman v Detroit Automobile Inter-Insurance Exchange and Dairyland Insurance Co v Auto-Owners Insurance Co, the circuit court concluded that Josalyn had two domiciles at the time of the accident, one with each parent. The circuit court thus ordered Grange to reimburse Farm Bureau for 50 percent of the PIP benefits Farm Bureau had paid and 50 percent of Farm Bureau’s processing expenses.
Grange appealed to the Court of Appeals, which affirmed the circuit court’s decision. The Court of Appeals rejected Grange’s argument that Michigan law does not recognize dual domiciles for a minor child of divorced parents because, according to the panel, “[t]he Michigan Supreme Court has . .. determined ... for purposes of the no-fault act, [that] the terms ‘domicile’ and ‘residence’ are ‘legally synonymous’ ” and “nothing in MCL 500.3114(1) . . . limits a minor child of divorced parents to one domicile or defines domicile as a ‘principal residence.’ ” After applying the domicile factors from Workman and Dairyland, the Court of Appeals concluded that the undisputed evidence established that Josalyn resided with both parents. Regarding the effect of the judgment of divorce, which established primary physical custody with Rosinski, the Court of Appeals stated, “that order does not change the fact that the evidence showed that Josalyn actually resided with both her parents, which is the relevant inquiry under the no-fault act.” The Court of Appeals also held that Grange’s policy was invalid because the policy, which requires a court adjudication of custody to be conclusive for determining a child’s principal residence, would limit Grange’s “obligation where the no-fault act does not... .”
Grange sought leave to appeal, which this Court granted.
B. ACIA V STATE FARM
In this case, Sarah is the minor child fatally injured in a motor vehicle accident. Sarah’s parents, Francis Campanelli and Tina Taylor, were divorced in Michigan in 1995. The original judgment of divorce granted joint legal custody of Sarah and her sister, Ashley, to both parents and “physical custody” to Campanelli, allowing Taylor only reasonable visitation. Additionally, the judgment of divorce contained the following provision:
DOMICILE OF THE MINOR CHILDREN
The domicile or residence of said minor children shall not be removed from the State of Michigan without the prior approval of the Court, and that [Campanelli] shall promptly notify the Friend of the Court whenever said children Eire moved to Emother address.
A little more than a year after the family court granted the judgment of divorce, Campanelli secured a job in Tennessee that offered a considerable improvement in his career. He moved the family court to modify the original judgment of divorce and successfully obtained an order in February 1996, as the custodial parent, permitting him to change the children’s domicile to the state of Tennessee. Under the terms of that order, Taylor was entitled to six weeks of visitation in the summer, and Campanelli and Taylor were to alternate the one-week Easter, Christmas, and winter school vacations. The February 1996 order did not otherwise modify either the joint legal custody originally granted to both parents or the physical custody awarded to Campanelli.
In 2007, when Sarah was 16-years-old, she went to Michigan to stay for the summer with her mother, who lived with Sarah’s great-uncle, Terry Gravelle, in Howell, Michigan. During the time that she lived with her mother, Sarah decided that she wanted to get to know Taylor better and, with Campanelli’s permission, remained in Michigan with her mother and attended high school that fall.
On November 26, 2007, Sarah was a passenger in a car driven by her friend, Kayla, and insured by State Farm Mutual Automobile Insurance Company (State Farm). Kayla lost control of the car, which careened off the road and into a tree, resulting in what would ultimately be fatal injuries to Sarah. The severe injuries Sarah sustained required medical care. Automobile Club Insurance Association (ACIA), as the insurer of Sarah’s uncle, Gravelle, in whose household Sarah resided, paid Sarah’s medical bills during the period before her death.
ACIA commenced an action in the circuit court to secure determinations that (1) Sarah was not “domiciled” in Michigan, (2) ACIA, therefore, was not responsible for Sarah’s PIP benefits under MCL 500.3114(1), and (3) State Farm, as the insurer of the vehicle in which Sarah was a passenger when she was injured, was the responsible insurer pursuant to the no-fault priority provision of MCL 500.3114(4). State Farm denied liability and both providers filed cross-motions for summary disposition under MCR 2.116(C)(10).
The circuit court granted summary disposition in favor of State Farm, finding that Sarah “had residency in Michigan with her mother and her uncle at the time of the motor vehicle accident.” The circuit court noted the conflicting testimony on the issue of Sarah’s intent to return to Tennessee, but then concluded that the record reflected a “lack of evidence of a clear intent to return to Tennessee . ...” In support, the circuit court cited the absence of any definite actions by Sarah to withdraw from school in Michigan and reenroll in school in Tennessee, coupled with indications that Sarah regarded her mother’s residence as her own. Accordingly, because the circuit court found that Sarah was domiciled in Michigan, it ruled that ACIA was responsible for Sarah’s PIP benefits under MCL 500.3114(1).
The Court of Appeals reversed, reasoning that the evidence of Sarah’s domicile, and in particular her intent, presented a question of fact for resolution by the jury and that summary disposition was, thus, not proper for either party. The Court of Appeals also rejected ACIA’s argument that the judgment of divorce and subsequent February 1996 order modifying domicile conclusively established Sarah’s domicile for all purposes. According to the panel, the family court “did not determine Sarah’s domicile for the purpose of insurance coverage, and there is no authority that suggests that [the circuit court in the insurance dispute] was required to adopt the ruling of different jurisdictions deciding the issue for a different purpose for different parties.”
State Farm applied to this Court for leave to appeal and ACIA filed a response to that application, as well as a cross-application. We ordered argument on whether to grant the applications or take other action.
II. STANDARD of review
This Court reviews de novo a decision to grant or deny a motion for summary disposition. Summary disposition under MCR 2.116(0(10) is appropriately granted where no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. A domicile determination is generally a question of fact; however, where the underlying material facts are not in dispute, the determination of domicile is a question of law for the circuit court. We likewise review de novo issues of statutory interpretation.
III. ANALYSIS
Michigan’s no-fault act generally abolishes tort liability arising from the ownership, maintenance, or use of a motor vehicle. Instead, insurance companies are required to provide first party insurance benefits for accidental bodily injury arising out of the use of a motor vehicle, which are commonly referred to as personal protection insurance (PIP) benefits. In this regard, MCL 500.3114(1), which is at the center of the litigation in both these cases, provides the general rule for determining which Michigan insurer is liable to provide PIP benefits. The statute provides, in relevant part:
[A] personal protection insurance policy described in [MCL 500.3101(1)] applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident.[ ]
In these cases, the parties dispute whether the injured individual was a relative of the insured who was “domiciled in the same household” as the insured.
In the instance that more than one insurer’s policy is applicable to the injured person under this provision, then the priority provision of MCL 500.3115(2) is triggered and may allow an insurer to recoup benefits from other insurer(s) of equal priority. This is the legal situation in Grange, wherein the lower courts held that Josalyn had two “domiciles” within the meaning of MCL 500.3114(1) — one with Lawrence insured by Grange and another with Rosinski insured by Farm Bureau. Pursuant to MCL 500.3115(2), the lower courts thus concluded that Grange is an insurer of equal priority with Farm Bureau, thereby entitling Farm Bureau to partial recoupment of the PIP benefits that it had paid on Josalyn’s behalf.
Comparatively, in some instances no insurer’s PIP policy is applicable to the injured person under MCL 500.3114(1) because the person is not “the person named in the policy, the person’s spouse, [or] a relative of either domiciled in the same household ....” In this event, MCL 500.3114(4) may apply such that the insurer of the accident vehicle is liable for PIP benefits to the occupant of a motor vehicle. MCL 500.3114(4) provides:
Except as provided in [MCL 500.3114(1)-MCL 500.3114(3)], a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) The insurer of the owner or registrant of the vehicle occupied.
(b) The insurer of the operator of the vehicle occupied.
This is the legal posture of ACIA, where the dispute involves whether Sarah was “domiciled with a relative” in Michigan for the purposes of MCL 500.3114(1), or instead, whether MCL 500.3114(4) applies. The circuit court concluded that Sarah was domiciled in Michigan, thus making ACIA, the insurer of Sarah’s uncle with whom she resided in Michigan, liable for PIP benefits rather than State Farm, the insurer of the accident vehicle.
The pivotal inquiry in both these insurance-coverage disputes, then, turns on the interpretation of the term “domiciled” as it is used in MCL 500.3114(1). Mainly, the meaning of “domicile,” and specifically how a child’s domicile is determined, will dictate the ultimate determination of which insurer is liable for PIP benefits in each case. Our inquiry first addresses the preliminary issue raised only in Grange: whether a child of divorced parents injured in a motor vehicle accident can be “domiciled” in more than one household for purposes of the no-fault act. We next consider the question posed in both Grange and ACIA: whether a family court order pertaining to a child’s custody conclusively establishes a child’s domicile under the no-fault act.
A. DOMICILE AND THE NO-FAULT ACT
Notably, the no-fault act does not define the term “domiciled.” The unambiguous language of MCL 500.3114(1) simply states that “a personal protection insurance policy . . . applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same house hold . . . .” When construing this statutory language, our main objective is to discern the Legislature’s intent through the language plainly expressed. Normally, this Court will accord an undefined statutory term its ordinary and commonly used meaning. However, where the Legislature uses a technical word that has acquired a particular meaning in the law, and absent any contrary legislative indication, we construe it “according to such peculiar and appropriate meaning.” The term “domicile” is just such a word that has a precise, technical meaning in Michigan’s common law, and thus must be understood according to that particular meaning.
For over 165 years, Michigan courts have defined “domicile” to mean “the place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Similarly, a person’s domicile has been defined to be “ ‘that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.’ ” In this regard, the Court has recognized that “[i]t may be laid down as a settled maxim that every man must have such a national domicile somewhere. It is equally well settled that no person can have more than one such domicile, at one and the same time.” From this settled principle, it follows that
a man retains his domicile of origin [upon his birth] until he changes it, by acquiring another; and so each successive domicile continues, until changed by acquiring another. And it is equally obvious that the acquisition of a new domicile does, at the same instant, terminate the preceding one.[ ]
In this way, our common law has recognized that from the time of a person’s birth — from childhood through adulthood — a person can only have a single domicile at any given point in time. Indeed, there are few legal axioms as established as the one providing that every person has a domicile, and that a person may have one — and only one — domicile.
In furtherance of this understanding of domicile, the common law has necessarily distinguished between the concepts of “domicile” and “residence:”
The former, in its ordinary acceptation, was defined to be, ‘A place where a person lives or has his home,’ while ‘[a]ny place of abode or dwelling place,’ however temporary it might have been, was said to constitute a residence. A person’s domicile was his legal residence or home in contemplation of law.[ ]
Stated more succinctly, a person may have only one domicile, but more than one residence. For purposes of distinguishing “domicile” from “residence,” this Court has explained that “domicile is acquired by the combination of residence and the intention to reside in a given place .... If the intention of permanently residing in a place exists, a residence in pursuance of that intention, however short, will establish a domicile.” The traditional common-law inquiry into a person’s “domicile,” then, is generally a question of intent, but also considers all the facts and circumstances taken together.
Returning to the language of MCL 500.3114(1), there is no indication that the Legislature intended to deviate from this well established common-law meaning of the term “domicile.” And, because a person, from the moment of his birth onward, can only have one domicile within the traditional meaning of that term, it follows that a child, regardless of his parents’ marital status or his multiple legal residences, may also have only one domicile at any given point in time.
Indeed, rather than there being any indication that the Legislature intended to deviate from this common-law rule, there is, in fact, evidence that the Legislature favored this single-location rule. Had the Legislature intended to make insurers liable for PIP benefits for dual coexisting “domiciles,” then it would have used the term “resided,” not “domiciled,” because, as previously explained, a person may have more than one residence at a time, but only one domicile. However, the Legislature instead expressly chose to use the more restrictive term, “domiciled,” thereby limiting the universe of insurers that are potentially liable under MCL 500.3114(1). In fact, the Legislature specifically rejected use of the term “residence,” as used in the uniform act on which the no-fault act is modeled, in favor of the term “domiciled” in defining those eligible for PIP benefits under MCL 500.3114(1). The Legislature thus affirmatively chose a term that it knew had a particular meaning, and we must accord this legislative choice its full weight when determining the Legislature’s intent.
Therefore, given the absence of any indication that the Legislature intended a contrary meaning, the Legislature’s use of the term “domiciled,” evinces an intent to incorporate all those common-law legal concepts related to that term, including the law of domicile as it relates to minors more fully addressed below. Accordingly, consistent with the traditional common-law principle that a person may have only one domicile at a given point in time, we hold that a child, whose parents are divorced and who has more than one legal residence, may have only a single domicile at any one point in time that continues until the child acquires a different one.
Farm Bureau, however, suggests that we should reach the opposite conclusion — that a child of divorced parents who has two legal residences may also have two coexisting domiciles, one with each parent. In support, Farm Bureau, like the Court of Appeals in Grange, asserts that our decision in Workman specifically recognized “residence” and “domicile” to be legally synonymous for purposes of MCL 500.3114(1), meaning that, just as a person can have more than one residence, a person can also have more than one “domicile.” In Workman, the seminal case in which we interpreted the phrase “domiciled in the same household” as used in MCL 500.3114(1), we considered whether the claimant, the insured’s adult daughter-in-law, was domiciled in the same household as the insured. After noting that no caselaw interpreted the phrase, “domiciled in the same household,” we articulated a flexible multi-factor test to aid courts in determining domicile, in which no one factor is determinative. The factors to be considered included:
(1) the subjective or declared intent of the person of remaining, either permanently or for an indefinite or unlimited length of time, in the place he contends is his “domicile” or “household; (2) the formality or informality of the relationship between the person and the members of the household; (3) whether the place where the person lives is in the same house, within the same curtilage or upon the same premises, (4) the existence of another place of lodging by the person alleging “residence” or “domicile” in the household ... .[ ]
In articulating this test, the Court stated:
Although the statutory language of [MCL 500.3114(1)] refers to persons “domiciled in the same household” as an insured, we believe this body of law [that deals with the question of whether a person is a ‘resident’ of an insured’s ‘household’ under particular insurance policies,] is analytically applicable to the consideration before us. We conclude this because, in this state, the terms “domicile” and “residence” are legally synonymous (except in special circumstances)[ ]
It is this final phrase — “the terms ‘domicile’ and ‘residence’ are legally synonymous” — on which Farm Bureau and the Court of Appeals rely. This statement, however, when read in context of the entire opinion, does not stand for the proposition that domicile is the equivalent of residence under MCL 500.3114(1). Rather, Workman merely acknowledged that, generally, “residence” has sometimes been given the equivalent meaning of “domicile.” Workman did not, however, establish that interpretation as an absolute rule. Indeed, this point is bolstered by the cases Workman cites in support of its statement that “the terms ‘domicile’ and ‘residence’ are legally synonymous.” Workman first cited to Gluc v Klein, where this Court recognized the traditional common-law distinction between “residence” and “domicile,” but noted that sometimes the Legislature has given residence the same meaning as domicile. We later made the same point in both Hartzler v Radeka and Reaume & Silloway, Inc v Tetzlaff. Further, the two cases Workman cited as “special circumstances” in which “domicile” and “residence” are not synonymous both involved determining a minor’s domicile for purposes of applying relevant statutes.
However, the corollary — that domicile has sometimes been given the same meaning as residence — is simply not true. This Court has never interpreted “domicile” to be the equivalent of “residence,” as demonstrated by the cases Workman cites and the preceding discussion regarding the common-law meaning of domicile. Indeed, Workman itself cannot reasonably be interpreted to advocate such a conclusion, given that Workman adopts a multifactor domicile test that is analytically the same as the traditional domicile test employed for more than a century at common law. Stated otherwise, Workman is entirely consistent with our conclusion that the term “domicile” is to be interpreted the same as its common-law meaning.
Our holding thus clarifies, that to the extent that Workman has been understood to imply that “domicile” and “residence” retain no independent significance for the purposes of the no-fault act, such a conclusion is not valid and that “domicile” must be understood consistent with its historical underpinnings. Further, although Workman recognized that “domicile” and “residence” are often used interchangeably by the Legislature in other contexts and, therefore described the terms as synonymous in those situations, Workman also explained that it is often necessary to distinguish between the terms consistent with the Legislature’s intent, as in the instant case.
The Court of Appeals in Grange therefore erred by interpreting Workman to mean that domicile is the equivalent of residence and that a minor child can be “domiciled” for purposes of MCL 500.3114(1) in multiple residences. Neither Workman nor the plain lan guage of MCL 500.3114(1) support this conclusion. The Court of Appeals’ holding in Grange, and Farm Bureau’s adherence to that position, is plainly inconsistent with our jurisprudence regarding the meaning of “domicile” and the clear language of MCL 500.3114(1) which, as we have explained, incorporates the common-law meaning of that term.
B. DETERMINING A CHILD’S DOMICILE
Our holding, that a child may have only one domicile at any one time consistent with traditional common-law principles, does not establish how a child’s single domicile is determined. Workman and its progeny applying the traditional domicile test defined domicile in relation to an adult but, for reasons that we will explain, these factors are not helpful in determining a child’s domicile. To resolve how a child’s domicile is determined — and given our conclusion that the Legislature intended that the term “domiciled,” as used in MCL 500.3114(1), be interpreted consistent with its common-law meaning — we further consider the law of domicile as it pertains to minors.
i. THE COMMON LAW OF DOMICILE PERTAINING TO MINORS
Our common law recognizes three means of acquiring a domicile, which are generally applicable to all persons depending on the factual circumstances, including: (1) domicile of origin or of nativity; (2) domicile of choice; and (3) domicile by operation of law. A domicile of origin or of nativity is established when a person is born, fulfilling the maxim that every person has a domicile from the time of birth. Meanwhile, a domicile by choice occurs when a person replaces his current domicile by choosing another, consistent with the proposition that every person must have a domicile until a new domicile is determined. Finally, a domicile by operation of law occurs when a person with a legal disability lacks the capacity to acquire a domicile of choice, and thus the domicile is established by operation of law.
Typically, as indicated in the preceding discussion and demonstrated by the Workman factors, an adult acquires a new domicile by choosing one of his or her choice, which makes the question of intent a preeminent concern in determining an adult’s domicile. One of the requisites for acquiring a domicile of choice, then, is the legal capacity necessary to form the intent required to select a new domicile.
Regarding children, a child’s ability to acquire a new domicile is limited in ways that an adult’s ability to acquire a domicile is not. This is because, for purposes of our legal system, an unemancipated child, unlike a competent adult, lacks the legal capacity to make legally binding determinations for him or herself and, therefore, a child lacks the capacity to acquire a domicile of choice. Thus, while intent is critical for determining the domicile of an adult, a child’s intent regarding domicile is simply irrelevant, and the traditional factors applied in determining an adult’s domicile are likewise irrelevant. Instead, the child’s domicile is determined by reference to the domicile of his or her parents. For instance, our common law has recognized that when a child is born, the child acquires a domicile of origin, which is that of his father. The child’s domicile of origin remains the child’s domicile until a new domicile is acquired through the actions of the child’s parents or until that point in time when the minor, either through emancipation or by reaching the age of majority, can acquire a domicile of choice.
The inquiry into a child’s domicile becomes more complicated when the child’s parents are divorced. Our common law, however, has accounted for these types of familial situations. Specifically, nearly a century ago in In re Volk, this Court considered the domicile of a child for purposes of determining whether Michigan courts must accord full faith and credit to Ohio judgments pertaining to a child. In that case, the parents of the minor child had previously lived in Ohio, but after their divorce the mother established a new domicile in Michigan. The Court explained:
[U]nder the decree of divorce, the mother was given [the child’s] unrestricted custody. His domicile thereafter became that of his mother, and, when she removed to this State and became domiciled here, the domicile of the child was in Michigan.[ ]
By acknowledging that the child’s domicile changed by operation of law as a result of the decree of divorce, this Court expressly recognized that a child’s domicile, upon the divorce or separation of the child’s parents, is the same as that of the parent to whose custody he has been legally given pursuant to a custody order. More simply put, In re Volk held that a custody determination is determinative of a child’s domicile. Under our common law, then, a child’s domicile upon the divorce of his parents and entry of a custody order is established by operation of law consistent with the terms of the custody order.
We reaffirm these common-law principles and, in doing so, we emphasize that domicile is a singular concept. Just as a person does not have two domiciles, a person likewise does not have a domicile set by operation of law for some purposes and perhaps a different domicile for other purposes — such as for consideration under the no-fault act or any other statute that uses the term “domicile.” A person’s domicile for one purpose is his domicile for all purposes; similarly, a child does not have a domicile set by court order only for certain purposes, but not others. The Legislature made a deliberate choice in selecting the term “domiciled” in Michigan’s no-fault act, and where domicile is set by operation of law, that determination must be given full legal effect.
Our analysis could end with articulation of this common-law rule and affirmation of these principles. We would be remiss, however, not to acknowledge that child custody orders are created pursuant to the provisions of the Child Custody Act, which was enacted 40 years after In re Volk was decided. Consequently, because we have concluded that MCL 500.3114(1) incorporates the common law of domicile, which provides that a custody order is determinative of a child’s domicile, it is necessary to further consider whether the Child Custody Act is consistent with this common-law directive. We conclude that the Child Custody Act is consistent with the common-law rule and that the Act’s provisions enforce the traditional determinations regarding what entities have the legal capacity to establish a minor child’s domicile.
ii. THE CHILD CUSTODY ACT AND DOMICILE
The Child Custody Act governs the creation of child custody orders and provides a comprehensive statutory scheme for resolving custody disputes. With it, the Legislature has sought to promote the best interests of children, which is the hallmark of any custody order. To this end, the Legislature has charged courts, in any dispute regarding custody, with “declaring] the child’s inherent rights and establishing] the rights and duties as to the child’s custody... in accordance with this act.”
At the outset, we note that the Child Custody Act is consistent with the notion that a child may have only a single domicile at any given point in time. Nowhere does the Child Custody Act indicate that a child may have dual domiciles, as Farm Bureau suggests. Rather, while the Child Custody Act permits a child to have a “legal residence with each parent,” that language serves merely as an acknowledgment that a child may have more than one residence. Absent an express indication that the Legislature intended a different result, we will not presume that the Legislature intended to modify the common-law rule applicable to children and adults alike that a person may have only a single domicile at a given point in time.
However, no provision of the Child Custody Act expressly provides that an order establishing custody or domicile is conclusive evidence of a child’s domicile for purposes of the no-fault act or otherwise. Moreover, the Act allows for myriad possible scenarios in postdivorce familial relationships, recognizing different combina tions of legal and physical custody, and offering flexibility in terms of parenting time arrangements. Ultimately though, we believe that the Child Custody Act and related court rules lend further support to the conclusion that a child’s domicile is established by a custody determination of the family court because that entity is the single entity entrusted by our laws with the capacity to determine domicile under these circumstances.
Once a custody order is entered pursuant to a judgment of divorce or otherwise, that custody order is legally binding on the parents and the order cannot be modified absent court approval or compliance with the applicable provisions of the Child Custody Act. Because parents are legally bound by the terms of the custody order, the order therefore negates the parents’ legal capacity, which is necessary to establish a domicile of choice for the minor child that is different from that established in the custody order. Specific provisions of the Child Custody Act support the notion that a parent’s ultra vires acts do not, as a matter of law, effect a change in a child’s court-ordered domicile: If a parent wishes to modify a custody order, the Act requires a parent to move for modification of the custody order and to demonstrate a proper cause or change of circumstances related to the established custodial environment. And, in the instance that a parent seeks to change the child’s legal residence, the parent is prohibited from moving a child across state lines without court approval and, in some situations, is prohibited from moving the child more than 100 miles without prior court approval. Therefore, that parents are legally bound by custody orders mandates the conclusion that a child’s domicile is established by the court order as a matter of law.
We thus believe that our prior conclusion — that in the instance where a child’s parents are divorced, the family court’s custody order entered pursuant to the Child Custody Act establishes the child’s domicile by operation of law and is determinative of the child’s domicile for purposes of the no-fault act — is consistent with the Child Custody Act itself. This holding gives the best effect to the provisions of the Child Custody Act, which entrusts courts with making custody determinations in a child’s “best interests,” including those related to living arrangements. Any contrary rule could foster noncompliance with custody orders entered under the Child Custody Act by implicitly sanctioning conduct that might establish a minor child’s domicile in contravention of a controlling custody order. Instead, adherence to the rule that the custody order controls the determination of a minor child’s domicile encourages compliance with legally binding court orders and statutory law.
Therefore, courts presiding over an insurance coverage dispute involving the minor child of divorced parents must treat a custody order as conclusive evidence of a child’s domicile. Where a court order sets a child’s custody or domicile by operation of law, the factual circumstances or the parents’ or child’s intentions are irrelevant to the domicile determination. Rather, the appropriate analysis is focused on the terms of the custody order. In directing courts to abide by the custody order, we are cognizant that the Child Custody Act draws a distinction between physical custody and legal custody: Physical custody pertains to where the child shall physically “reside,” whereas legal custody is understood to mean decision-making authority as to important decisions affecting the child’s welfare. Because the focus under our common law with respect to domicile mostly concerns a question of location and the same is true with respect to a child’s domicile in the instance that the parents are divorced, the relevant consideration is which parent has physical custody under the terms of the order. By way of example, a child’s domicile will be with a parent if the custody order grants that parent primary or sole physical custody, or expressly establishes domicile with that parent through a domicile provision, regardless of whether the parents share joint legal custody.
C. APPLICATION
i. GRANGE V LAWRENCE
When the family court entered the 2005 judgment of divorce between Lawrence and Rosinski, their child Josalyn acquired a domicile by operation of law consistent with the terms of the judgment of divorce. Specifically, the order granted Lawrence and Rosinski joint legal custody, while Rosinski was granted primary physical custody and Lawrence liberal parenting time. Because the order granted Rosinski primary physical custody, Josalyn’s domicile was with Rosinski. So long as Josalyn lacked the legal capacity to acquire a new domicile of choice and neither of her parents successfully moved to modify the order through a motion to change custody or residence under MCL 722.27 or MCL 722.31 in a family court of continuing jurisdiction, Josalyn’s domicile would remain with Rosinski pursuant to the terms of the judgment of divorce.
At the time of the accident in 2009 the judgment of divorce had never been modified pursuant to the provisions of the Child Custody Act. Nor had Josalyn reached the age of majority or become emancipated, such that she could acquire a different domicile of her own choosing. Therefore, at the time of the accident, Josa-lyn’s domicile was with Rosinski pursuant to the terms of the judgment of divorce. In reaching the contrary conclusion that Josalyn was domiciled with both parents, the lower courts erred by concluding that a person could have dual domiciles, erred by failing to recognize the legal effect of the family court’s custody order, and erred by applying the Workman factors that are inapplicable to a person whose domicile is set by operation of law.
Therefore, because Josalyn can only have one domicile, it follows that she was not domiciled with Lawrence, Grange’s insured. The terms of the judgment of divorce provide conclusive evidence of Josalyn’s domicile and, there being no ambiguity in that order, there is no question of fact that Josalyn was domiciled in Rosinski’s household. It further follows that because Josalyn was not domiciled with Lawrence, Grange is not liable for Josa-lyn’s PIP benefits under MCL 500.3114(1). For this same reason, Grange is not an insurer of equal priority with Farm Bureau and, thus, Grange is not required to reimburse Farm Bureau under MCL 500.3115(2) for the PIP benefits it paid for Josalyn’s care following her accident. The lower courts therefore erred by denying Grange summary disposition.
ii. ACIA V STATE FARM
In ACIA, the 1995 judgment of divorce granted Taylor and Campanelli joint legal custody, Campanelli primary physical custody, and, in an express domicile provision, established Sarah’s domicile in Michigan with Campanelli. Upon entry of this order, Sarah’s domicile was established by operation of law and her parents no longer had the legal capacity to establish a different domicile of choice on Sarah’s behalf, and nor could Sarah, not having reached the age of majority and not being emancipated, acquire a new domicile of her own choosing. Campanelli, however, successfully moved for a change of residency in 1996 and the family court entered an order modifying the judgment of divorce by changing Sarah’s domicile to Tennessee. Taylor and Campanelli retained joint legal custody and Campanelli retained primary physical custody. Sarah’s domicile, then, was changed by operation of law to Tennessee upon entry of the 1996 order.
There is no dispute that the 1996 order expressly establishing Sarah’s domicile in Tennessee remained in effect at the time of the accident in 2007, when Sarah was only 16 years of age. Although Sarah was then residing with her mother in Michigan, Sarah was domiciled in Tennessee at the time of the accident as established by the 1996 order. There being no question of fact as to Sarah’s domicile in Tennessee, it is clear that ACIA, the insurer of the Michigan household, is not liable for Sarah’s PIP benefits under MCL 500.3114(1). Instead, State Farm is the insurer in first priority to pay PIP benefits, and the lower courts thus erred by denying ACIA summary disposition.
IV CONCLUSION
It has long been established in our common law that a person, including a child, may have only a single domicile at any one time. We reaffirm this principle and hold that a child of divorced parents who may have more than one legal residence, nevertheless still has only one domicile at a given point in time, including for purposes of the no-fault act. In the instance that the child’s parents are divorced and a family court has entered an order relating to custody, we hold, consistent with our common law and the Child Custody Act, that the child’s domicile is established by operation of law and that the custody order is determinative of the child’s domicile for purposes of the no-fault act.
In Grange, the judgment of divorce conclusively established the minor child’s domicile with her mother at the time of the accident and, thus, Grange is not hable for providing PIP benefits following the child’s automobile accident. Accordingly, we reverse the judgment of the Court of Appeals in Grange and we remand to the circuit court for entry of summary disposition in favor of Grange.
In ACIA, the custody order conclusively established the minor child’s domicile with her father at the time of the accident and, thus, ACIA is not liable for providing PIP benefits following the child’s automobile accident. We thus reverse the judgment of the Court of Appeals and we remand to the circuit court for entry of summary disposition in favor of ACIA.
Young, C.J., and Cavanagh and Viviano, JJ., concurred with Kelly, J.
MCL 500.3101, et seq.
At the time of the accident, the 2005 judgment of divorce was still in effect. However, Lawrence had moved into a two-bedroom apartment, while Rosinski continued to reside in the former marital home.
The pertinent portion of Grange’s policy provided PIP “benefits to or for an insured who sustains bodily injury... caused by an accident.” The Grange policy defined “insured” to include ‘You or any family member injured in an auto accident.” The Grange policy further defined “family member” as:
[A] person related to you by blood, marriage or adoption and whose principal residence is at the location shown on the Declarations page. If a court has adjudicated that one parent is the custodial parent, that adjudication shall be conclusive with respect to the minor child’s principal residence. [Emphasis added.]
Workman v Detroit Auto Inter-Ins Exch, 404 Mich 477, 496-497; 274 NW2d 373 (1979).
Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675, 682; 333 NW2d 322 (1983).
Grange Ins Co of Mich v Lawrence, 296 Mich App 319, 325; 819 NW2d 580 (2012).
Id. at 323, 324.
Id. at 324.
Id. at 325.
Grange Ins Co v Lawrence, 493 Mich 851 (2012). We directed the parties to address:
(1) whether a person, and in particular the minor child of divorced parents, can have two domiciles for the purpose of determining coverage under MCL 500.3114(1) of the Michigan no-fault act; (2) whether, in answering the first issue, a court order determining the minor’s custody has any effect; and (3) whether an insurance policy provision giving preclusive effect to a court-ordered custody arrangement is enforceable. [Id.]
The family court’s order was entitled “Order Permitting Defendant to Change Children’s Domicile to the State of Tennessee.”
Taylor provided Sarah with a room of her own in her uncle’s home, filed an affidavit of residence with the Howell Public Schools, affirming that Taylor lived in Howell and that Sarah resided with her. Taylor listed Gravelle’s address as their residence.
In the meantime, Taylor, after learning that Campanelli was planning to have Sarah flown back to Tennessee for medical care, obtained an ex parte order from the Wayne Circuit Court purporting to transfer Sarah’s custody to Taylor and her domicile to Taylor’s Michigan address. The Wayne Circuit Court later reversed itself on January 7, 2008, vacating the ex parte order and declaring it void ah initio. By that time, however, Sarah had passed away from her injuries. Sarah’s parents, however, continued to litigate. Taylor sought to open an estate for Sarah in Livingston County Probate Court, contending that Sarah was domiciled in Michigan when she died. After a two-day testimonial hearing, the probate court ruled that, consistent with the provisions of the family court’s orders in the divorce proceedings, Sarah was domiciled in Tennessee, not in Michigan, on the date of her death. The probate court entered orders pursuant to its ruling, declaring Sarah to be a “nonresident of Michigan” and giving Campanelli the right to make decisions regarding funeral arrangements for Sarah.
The circuit court concluded that it was not bound by the probate court’s determination that Sarah was domiciled in Tennessee, see note 13, because the parties to the probate court proceedings were different.
Auto Club Ins Ass’n v State Farm Mut Auto Ins Co, unpublished opinion per curiam of the Court of Appeals, issued June 21, 2011 (Docket No. 294324).
Id. at 4-5.
Auto Club Ins Ass’n v State Farm Mut Auto Ins Co, 491 Mich 875 (2012). We directed the parties to address “whether legal residence and domicile of the insured minor were conclusively established in Tennessee pursuant to the judgment of divorce entered by the Wayne Circuit Court, as amended, or whether the minor had the capacity to acquire a different legal residence or domicile of choice.” Id., citing Vanguard Ins Co v Racine, 224 Mich App 229, 233; 568 NW2d 156 (1997); MCR 3.211(C)(1) and (3); 8 Mich Civ Jur, Domicile, § 7; Restatement, Conflict of Laws, 2d, §§ 15 and 22(1) comments a and d.
Elba Twp v Gratiot Co Drain Com’r, 493 Mich 265, 277; 831 NW2d 204 (2013).
Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
Hartzler v Radeka, 265 Mich 451, 452; 251 NW 554 (1933).
Elba Twp, 493 Mich at 278.
See MCL 500.3105.
MCL 500.3107; MCL 500.3108.
MCL 500.3114(1) (emphasis added).
MCL 500.3115(2) provides:
When 2 or more insurers are in the same order of priority to provide personal protection insurance benefits an insurer paying benefits due is entitled to partial recoupment from the other insurers in the same order of priority, together with a reasonable amount of partial recoupment of the expense of processing the claim, in order to accomplish equitable distribution of the loss among such insurers.
Emphasis added.
Title Office, Inc v Van Buren Co Treasurer, 469 Mich 516, 519; 676 NW2d 207 (2004).
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).
MCL 8.3a.
In re High, 2 Doug 515, 523 (Mich, 1847).
Henry v Henry, 362 Mich 85, 101-102; 106 NW2d 570 (1960), quoting Williams v North Carolina, 325 US 226, 236; 65 S Ct 1092; 89 L Ed 1577 (1945) (quotation marks omitted).
In re High, 2 Doug at 523 (emphasis added); see also In re Scheyer’s Estate, 336 Mich 645, 651-652; 59 NW2d 33 (1953) (“One cannot he permanently located in more than 1 place; one cannot be domiciled in more than 1 place; one cannot intend to remain for an extended period of time in more than 1 place.”).
In re High, 2 Doug at 523.
Gluc v Klein, 226 Mich 175, 177-178; 197 NW 691 (1924).
In re Scheyer’s Estate, 336 Mich at 651-652.
Beecher v Common Council of Detroit, 114 Mich 228, 230; 72 NW 206 (1897).
In re High, 2 Doug 523-524 (“The question of domicile, is then, a question of fact and intent, and if these elements are found, the reference of the domicile to one place or another depends upon the comparative weight of the circumstances.”).
For reasons we explain later in this opinion, the Child Custody Act, MCL 722.21 et seq., which governs the creation of child custody orders, does not abrogate the common-law rule that a person can have only a single domicile and does not create a dual-domicile situation.
This Court has acknowledged that the no-fault act is modeled after the Uniform Motor Vehicle Reparations Act, see MacDonald v State Farm Mut Ins Co, 419 Mich 146, 151; 350 NW2d 233 (1984). Section 1(a)(3)(ii) of 14 ULA, Civil Procedural and Remedial Laws, Uniform Motor Vehicle Accident Reparations Act, p 43, includes those “residing in the same household with a named insured” within the definition of “basic reparation insured,” of whom are eligible for benefits. See id. at § 4(b), p 56. In other words, under the model act, a person need only reside in the same household as the policy holder to be considered a basic reparation insured who may claim benefits against the policyholder’s insurance company. Id. at 57.
Workman, 404 Mich at 495-496.
Id. at 496-497 (citations omitted). Later, in Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App at 682, the Court of Appeals added five more factors relevant for determining no-fault domicile, with a particular focus on adult children of an insured who may have complicated living arrangements:
Other relevant indicia of domicile include such factors as [1] whether the claimant continues to use his parents’ home as his mailing address, [2] whether he maintains some possessions with his parents, [3] whether he uses his parents’ address on his driver’s license or other documents, [4] whether a room is maintained for the claimant at the parents’ home, and [5] whether the claimant is dependent upon the parents for support.
The Workman-Dairyland multifactored framework comprises the one now commonly employed by Michigan courts when a question of fact exists as to where a person is domiciled.
Workman, 404 Mich at 495 (second emphasis added). In support of the statement, “the terms ‘domicile’ and ‘residence’ are legally synonymous,” Workman provides the following in footnote 4, id. at 495 n 4:
Gluc v Klein, 226 Mich 175, 178; 197 NW 691 (1924); Hartzler v Radeka, 265 Mich 451, 452; 251 NW 554 (1933); Reaume & Silloway, Inc v Tetzlaff, 315 Mich 95; 23 NW2d 219 (1946). For an example of such a “special circumstance”, see School District No 1, Fractional, of Mancelona Twp v School District No 1 of Custer Twp, 236 Mich 677, 681; 211 NW 60 (1926); Ortman v Miller, 33 Mich App 451, 458; 190 NW2d 242 (1971).
Gluc, 226 Mich at 175, 178.
Hartzler, 265 Mich at 451, 452.
Reaume & Silloway, Inc, 315 Mich at 95, 99.
See Sch Dist No 1 Fractional of Mancelona Twp, 236 Mich at 681 (concluding that the Legislature, in the context of a school statute, intended to give the terms “residence” and “domicile” their traditional, distinctive common-law meanings); and Ortman, 33 Mich App at 458 (reaching the same conclusion in the context of a motor vehicle accident claims fund statute).
Similarly, see Feaster v Portage Pub Sch, 451 Mich 351, 356; 547 NW2d 328 (1996) (quoting Feaster v Portage Pub Sch, 210 Mich App 643, 657; 534 NW2d 242 (1995), rev’d 451 Mich 351 (1996), in turn citing Sch Dist No 1 Fractional of Mancelona Twp, 236 Mich at 681-682), where this Court more recently reasserted the legal difference between the terms “domicile” and “residence” in the context of applying school statutes to minor children, concluding that “[i]t is well established that residency for educational purposes is not the equivalent of legal domicile.” Likewise, construing “domicile” and “residence” as synonymous under the no-fault act would entirely defeat the specific legislative choice to employ the more restrictive term “domiciled” in place of broader term “resided.”
For this same reason, Farm Bureau’s suggestion that this Court follow the holding of a Sixth Circuit Court of Appeals case, Walbro Corp v Amerisure Cos, 133 F3d 961 (CA 6, 1988), is unavailing. In Walbro, the Sixth Circuit interpreted Workman to permit dual domiciles where the minor child had a legal residence with both parents as a result of a joint legal and physical custody order. Aside from its lack of any precedential value, Walbro misconstrued Workman and the statutory language of MCL 500.3114(1) in the same manner as the Court of Appeals in Grange as permitting a person to have more than one domicile at a given point in time. Walbro also wrongly applied, for reasons we explain later in this opinion, the Workman domicile factors to determine the child’s domicile.
8 Mich Civ Jur, Domicile, § 1.
See In re High, 2 Doug at 523-524.
Restatement, Conflict of Laws, 2d, §§ 22, 23; 8 Mich Civ Jur, Domicile, § 5.
Comments a and b of the Restatement, § 15 provide:
a. Requirements for acquisition of domicil of choice. The requirements for acquiring a domicil of choice are (1) legal capacity to do so, (2) physical presence as described in § 16 and (3) the existence of the attitude of mind described in § 18 toward the place in question....
b. A person may acquire a domicil of choice if
(1) having had a domicil by operation of law, such as a domicil of origin, he acquires a domicil of choice in a place other than his former domicil; or
(2) having had a domicil of choice in one place, he acquires a new domicil of choice in another place. [Emphasis added.]
See id. It is basic black letter law that an unemancipated minor lacks the legal capacity to acquire a domicile of choice. See Yarborough v Yarborough, 290 US 202, 211; 54 S Ct 181; 78 L Ed 269 (1933) (“[Minor child] was not capable by her own act of changing her domicile.”); Miss Band of Choctaw Indians v Holy field, 490 US 30, 48; 109 S Ct 1597; 104 L Ed 2d 29 (1989) (“[M]ost minors are legally incapable of forming the requisite intent to establish a domicile . ...”). Our Legislature has recognized that unemancipated minors lack the necessary legal capacity to acquire a domicile of choice by expressly granting emancipated minors “the right to establish a separate domicile.” MCL 722.4e(1)(d).
See Holy field, 490 US at 48 (“[Generally, a child’s] domicile is determined by that of their parents.”); see also Lamar v Micou, 112 US 452, 470; 5 S Ct 221; 28 L Ed 751 (1884) (stating the general rule that the domicile of an infant follows that of his father).
See In re High, 2 Doug at 523-524 (recognizing that a child acquires a domicile of origin upon birth that is the same as his parents); Hering v Mosher, 144 Mich 152, 154; 107 NW 907 (1906) (noting that a child’s domicile of origin is the same as his father’s domicile).
See In re High, 2 Doug at 524 (explaining that a child who “was bom in Vermont, about the year 1812, where he continued to reside with his parents, who were domiciled there, until he went south some time prior to 1832, and before he had attained the age of twenty-one[,]” was domiciled in Vermont, as “Vermont, then, was the domicile of his birth or nativity ... and it continued to be his domicile until he acquired another, which he could not do until he arrived at foil age....” [emphasis added]). Indeed, in the instance where a child’s parents remain married, when the parents acquire a new domicile of choice, the child also acquires that same domicile consistent with the parents’ intent. Under these circumstances, because the child’s domicile is determined in relation to his parents’ domicile, the Workman factors remain relevant only to the extent that they are used to determine the parents’ intentions. See Holyfield, 490 US at 48.
In re Volk, 254 Mich 25; 235 NW 854 (1931), overruled in part on other grounds by Hentz v Hentz, 371 Mich 335 (1963).
In re Volk at 31-32 (emphasis added).
The United States Supreme Court recognized the same principle in Yarborough, 290 US at 211, when it indicated that the child’s “domicile continued to be [the same as her father’s] until entry of the [divorce] judgment in question [which granted the mother custody of the child].” Likewise, the Restatement, § 22, comment d states in part, “A child’s domicil, in the case of the divorce or separation of his parents, is the same as that of the parent to whose custody he has been legally given.”
In re Volk, 254 Mich at 31-32. Similarly, and more recently, in Vanguard Ins Co v Racine, 224 Mich App 229, 233; 568 NW2d 156 (1997), the Court of Appeals noted that a party has only one domicile, and, in the case of a minor child of divorced parents, the one domicile would be that parent’s home where the minor “spent the majority of his time and where [the parent] had physical custody . .. under the divorce judgment.” (Emphasis added.)
In an effort to avoid creating a two-domicile situation under its rebuttable presumption test, i.e., the concurrence would allow a child to have one domicile for purposes of the no-fault act and another different domicile in the family law context, the concurrence argues that the family court lacks the authority to determine a minor child’s domicile in its custody orders. This position, however, conflicts with the concurrence’s rebuttable presumption test, which recognizes the family court’s authority in this regard by treating the custody order as presumptive evidence of a minor child’s domicile.
Child Custody Act, MCL 722.21 et seq.
MCL 722.26.
MCL 722.24(1).
See MCL 722.31, which pertains to the requirements necessary to change a child’s residence, and provides in part that “[a] child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent.” Notably, the caselaw addressing disputes related to motions for a change of residency also interchangeably describe these motions as motions for a change of domicile. See Rains v Rains, 301 Mich App 313; _ NW2d _ (2013); McKimmy v Melling, 291 Mich App 577, 580-582; 805 NW2d 615 (2011). The courts loose use of the terms “residency” and “domicile” in the context of motions to change residency under MCL 722.31, however, has no impact on the Legislature’s express decision to use the term “residence,” as opposed to domicile, and does not inform the meaning of the Child Custody Act.
See Const 1963, art 3, § 7 (indicating that the common law remains in force until it is “changed, amended or repealed”); see also Dawe v Dr Reuven Bar-Levav & Assocs, PC, 485 Mich 20, 28; 780 NW2d 272 (2010) (“[T]he Legislature ‘should speak in no uncertain terms’ when it exercises its authority to modify the common law.”).
For example, MCL 722.26a recognizes the possibility of “joint custody,” which may consist of either joint physical custody or joint legal custody or both joint physical and legal custody. MCL 722.26a(7) defines “joint custody” to mean
an order of the court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents.
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
“Although not specifically designated in the statute, the custody described in [MCL 722.26a(7)(a)] is commonly referred to as joint physical custody, and that described in [MCL 722.26a(7)(b)] is referred to as joint legal custody.” Dailey v Kloenhamer, 291 Mich App 660, 670; 811 NW2d 501 (2011).
See Harvey v Harvey, 470 Mich 186, 194; 680 NW2d 835 (2004) (indicating that custody orders are binding once entered by court order); Brausch v Brausch, 283 Mich App 339, 354; 770 NW2d 77 (2009) (indicating that a family court’s custody order is valid and binding for all purposes until properly set aside or otherwise modified).
See MCL 722.27(1)(c), which indicates that a family court may “modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age .. . [and that the] court shall not. .. 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.”
See MCL 722.31, which provides in relevant part:
(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.
(2) A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. This section does not apply if the order governing the child’s custody grants sole legal custody to 1 of the child’s parents.
See also MCR 3.211(C)(3), which provides:
A judgment or order awarding custody of a minor must provide that
(1) the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge’s successor,* * *
(3) a parent whose custody or parenting time of a child is governed by the order shall not change the legal residence of the child except in compliance with section 11 of the Child Custody Act, MCL 722.31.
The concurrence' acknowledges that parents are legally bound by custody orders, but then concludes that parents retain the ability to establish a minor child’s domicile in contravention of a custody order. This reasoning — and the rebuttable presumption test that stems from it — departs from established principles of Michigan’s domiciliary common law and statutory law and, instead, is based on the concern that domicile dictated by a custody order may not be aligned with the minor child’s actual living arrangements. This approach is not supportable in our law and we decline to give legal effect to the fact that a child’s living situation may not be consistent with the custody order.
We recognize that parents often reach informal agreements concerning custody matters or, having established a formal arrangement through court order, may through mutual agreement decide to deviate from that arrangement such that a child’s living situation is not aligned with the custody order. Our holding does not, in reality, restrict parents in their ability to address custody arrangements in these regards, but courts should be cognizant that parents’ informal modifications to the custody arrangement established in a custody order have no effect on a child’s domicile.
Despite this clear directive, the concurrence argues that our holding injects uncertainty into the realm of no-fault law. We believe that it is the concurrence’s rebuttable presumption test that would create uncertainty because it would require insurers to evaluate parents’ claims of domicile or leave an insurer guessing regarding its risk of exposure to liability.
A domicile set by operation of law — for example, by court order— obviates the need to engage in an analysis of the Workman-Dairyland factors, which were designed to help determine a person’s domicile when it was an open or contested question.
Compare MCL 722.26a(7)(a) (physical custody) with MCL 722.26a(7)(b) (legal custody).
See In re Volk, 254 Mich at 31-32, which determined that a child’s domicile was with that parent who had been given physical custody of the child.
We recognize that a custody order may allow for reasonable or flexible parenting time. However, the physical-custody inquiry, which governs the domicile determination, has to do with the child’s primary physical location under the express terms of the custody order and not with how the order allots “parenting time.” Indeed, by allowing for reasonable or flexible parenting time in a custody order, a family court has not relinquished its authority to establish the physical custody of the minor child.
Although not presently before this Court, we recognize that determining domicile by reference to a custody order may appear to lead to a perplexing result where the order grants each parent joint physical custody under MCL 722.26a(7) and creates an equal 50/50 division of physical custody. To begin with, we emphasize that an award of joint physical custody alone does not automatically create this potentially perplexing situation because although an order may award joint physical custody, it may also establish that one parent has primary physical custody. Alternatively, the details of the physical custody division may reveal that one parent has physical custody of the child more often than the other parent despite the joint physical custody arrangement. Thus, it is only in the very rare event that a custody order awards joint physical custody and grants both parents an equal amount of time to exercise physical custody that this issue arises. Indeed, MCL 722.26a(7) does not require that parents share equal physical custodial time for a court to award joint physical custody; rather, [MCL 722.26a(7)(a)] merely defines joint physical custody as an order “[t]hat the child shall reside alternately for specific periods with each of the parents.” Emphasis added. The statute does not, however, require that the child reside with each parent for an equal amount of time to constitute joint physical custody.
In the unusual event that a custody order does grant an equal division of physical custody, and only in this instance, then the child’s domicile would alternate between the parents so as to he the same as that of the parent with whom he is living at the time. Restatement, § 22 (1971). Thus, the child’s domicile is with the parent who has physical custody as established by the custody order at the specific time of the incident at issue. This approach is consistent with the terms of the custody order and avoids a finding that the child has dual coexisting domiciles. Such a rule is consistent with In re Volk and retains our traditional understanding that a person can only have one domicile at a time.
Given our holding that a custody determination of a minor child governs domicile, Farm Bureau’s argument that Grange’s policy conflicts with the no-fault act is unavailing. Recall that the pertinent portion of Grange’s policy states: “If a court has adjudicated that one parent is the custodial parent, that adjudication shall be conclusive with respect to the minor child’s principal residence.” This provision is plainly consistent with our holding and does not, as the Court of Appeals held, restrict coverage that otherwise would have been permitted under the no-fault act. | [
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Markman, J.
The Judicial Tenure Commission (JTC) has recommended that respondent, 3rd Circuit Court Judge Deborah Ross Adams, be suspended without pay for 180 days and be ordered to pay costs in the amount of $8,498.40. Respondent has filed a petition asking this Court to reject that recommendation. We affirm the JTC’s factual findings and conclusions of law, but conclude at the same time that it is necessary and appropriate to remove respondent from office for the remainder of her term. The evidence establishes that respondent: (a) committed perjury; (b) signed her former attorney’s name on legal documents without the latter’s permission and filed these documents also without such permission; and (c) made numerous misrepre sentations of fact under oath during the JTC proceedings. The cumulative effect of respondent’s misconduct convinces this Court that respondent should not remain in judicial office, and we therefore remove her from such office. In addition, because respondent engaged in conduct involving “deceit or intentional misrepresentation,” pursuant to MCR 9.205(B), we order respondent to pay costs of $8,498.40 to the JTC.
I. FACTS AND HISTORY
On April 17, 2012, the JTC filed Formal Complaint No. 89 against respondent, alleging three counts of misconduct. It asserted that respondent had engaged in: (a) “misrepresentations under oath;” (b) “forgery and filing of forged and unauthorized pleadings;” and (c) “misrepresentations to the commission.” With regard to count one, the complaint asserted that while respondent was the defendant in a divorce case before Oakland Circuit Court Judge Mary Ellen Brennan, respondent repeatedly called Judge Brennan’s chambers despite being advised each time by Judge Brennan’s staff that such contact was improper while respondent was represented by counsel. At a subsequent hearing and while under oath, when Judge Brennan told respondent that she must stop calling her chambers, respondent denied ever doing so while she was represented by counsel. Respondent stated that she had her clerk call Judge Brennan’s chambers on one occasion to determine if the time of the hearing could be changed. Judge Brennan’s secretary, Kirsten Turner, testified that on March 15, 2011, she spoke to a woman who identified herself as Judge Adams. In response, respondent stated, “that’s not correct.” When Judge Brennan noted that respondent had previously stated that she had her clerk call Judge Brennan’s chambers, respondent denied ever having said that.
With regard to count two, the complaint alleged that after attorney Andra Dudley was released from representing respondent, respondent prepared a motion to set aside or modify the judgment of divorce, a supporting brief, and a notice of hearing, to all of which she signed Ms. Dudley’s name without the latter’s knowledge or permission and filed them with the court, also without such knowledge or permission.
With regard to count three, the complaint alleged that respondent falsely told the JTC that: (a) she had been walking away from counsel’s table, on her way out of the courtroom, when Judge Brennan asked respondent about calling her chambers the day before; (b) she had only contacted Judge Brennan’s chambers on four occasions; (c) nobody in Judge Brennan’s chambers had told her that it was improper for her to call Judge Brennan’s chambers while she was represented by counsel; (d) she had Ms. Dudley’s permission to file pleadings on Ms. Dudley’s behalf; (e) she also had permission to sign Ms. Dudley’s name to the motion that was filed on May 5, 2011; (f) she had provided a copy of the motion to Ms. Dudley; and (g) she had provided Ms. Dudley with notice of the hearing date for the motion.
Also on April 17, 2012, the JTC filed a request for the appointment of a master. Nine days later on April 26, 2012, this Court appointed the Honorable Donald G. Miller as the master, and a hearing began on September 11, 2012, and concluded on September 17, 2012. On October 9, 2012, the master filed his findings of fact and conclusions of law with the JTC. With regard to count one, the master concluded that “the Examiner has, by a preponderance of the evidence,[ ] shown that Respondent did in fact violate MCL 750.423 by making false statements under oath.” With regard to count two, the master concluded that there was insufficient evidence to find that respondent violated the forgery statute, MCL 750.248, or the uttering and publishing statute, MCL 750.249, because there was no evidence presented to indicate that respondent had acted with an “intent to injure or defraud” when she signed Ms. Dudley’s name on the legal documents and filed them with the court.
Finally, with regard to count three, the master concluded that there was sufficient evidence to support three out of the seven allegations of misrepresentations to the JTC. Specifically, the master concluded that there was sufficient evidence that respondent had lied to the JTC about: (a) having contacted Judge Brennan’s chambers on only four occasions; (b) having never been told by Judge Brennan’s staff that it was improper for her to call them while she was represented by counsel; and (c) having Ms. Dudley’s permission to affix her signature to the motion filed on May 5, 2011. But the master found that there was insufficient evidence to find that respondent had lied about: (a) having been walking out of Judge Brennan’s courtroom when Judge Brennan asked her about calling her chambers the day before; (b) having Ms. Dudley’s permission to file pleadings on her behalf; (c) having supplied a copy of the motion to Ms. Dudley; and (d) having supplied a copy of the notice of the hearing to Ms. Dudley.
The JTC then held a hearing on December 3, 2012, and issued its decision and recommendation for discipline on December 28, 2012. The JTC adopted the master’s findings except, unlike the master, the JTC determined that: (a) “Respondent could not possibly believe that she had Ms. Dudley’s permission to sign and file pleadings under Ms. Dudley’s signature;” and (b) “Respondent failed to provide Ms. Dudley with a copy of the May 5, 2011 Motion and accompanying documents.” The JTC concluded that the examiner had proven by a preponderance of the evidence all the allegations in counts one and two of the complaint and, with a single exception, all the allegations in count three of the complaint. It concluded that respondent violated MRPC 3.3(a)(1), MCR 9.104(A), MCR 9.208(B), and Canons 1 and 2 of the Code of Judicial Conduct. In determining an appropriate sanction, the JTC considered the seven factors that this Court set forth in In re Brown, 461 Mich 1291, 1292-1293; 625 NW2d 744 (2000). Finding that respondent’s misconduct implicated at least five of the seven Brown factors and recognizing that this Court has held that “[l]ying under oath is the antithesis of judicial integrity,” In re James, 492 Mich 553, 582; 821 NW2d 144 (2012) (Markman, J., concurring in part and dissenting in part), the JTC recommended that respondent be suspended without pay for 180 days and be ordered to pay costs in the amount of $8,498.40.
II. STANDARD OF REVIEW
Const 1963, art 6, § 4 provides that “[t]he supreme court shall have general superintending control over all courts.” Const 1963, art 6, § 30(2) provides that
[o]n recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent failure to perform his duties, habitual intemperance or conduct that is clearly prejudicial to the administration of justice.
MCR 9.225 provides that “[t]he Supreme Court shall review the record of the proceedings and file a written opinion and judgment, which may accept or reject the recommendations of the commission, or modify the recommendations by imposing a greater, lesser, or entirely different sanction.” This Court reviews de novo the JTC’s factual findings, conclusions of law, and disciplinary recommendations. In re James, 492 Mich at 560; In re Halloran, 466 Mich 1219, 1219; 647 NW2d 505 (2002).
III. ANALYSIS
A. FACTUAL FINDINGS
After reviewing the record and hearing oral arguments, we agree with and adopt the factual findings of the JTC.
1. COUNT ONE: PERJURY
The master and the JTC both found that respondent made false statements under oath in Judge Brennan’s courtroom. We agree. While respondent was under oath in Judge Brennan’s courtroom, Judge Brennan asked respondent whether she had called Judge Brennan’s chambers on the preceding day, March 15, 2011, and respondent said that she had not. Indeed, respondent repeatedly denied ever having called Judge Brennan’s chambers while she was represented by counsel. How ever, both Judge Brennan’s secretary, Kirsten Turner, and her clerk, Ryan Mathews, testified that respondent had called Judge Brennan’s chambers on several occasions while represented by counsel. Respondent herself now admits that she did call Judge Brennan’s chambers on March 15, 2011.
Respondent argues, however, that she did not intentionally or willfully make any false statements because when she denied calling Judge Brennan’s chambers, she was under the impression that she was simply denying that she had tried to speak directly with Judge Brennan. This is belied by the fact that respondent did not just say, “I didn’t call your chambers directly,” but also repeatedly said, “I did not call your staff directly,” and then, after Judge Brennan asked her, “Are you telling me that you did not have a conversation with anybody from my staff, from my office yesterday,” respondent said, “I did not call anyone,” “I did not have any conversation,” and, finally, when Judge Brennan told respondent, “do not call my chambers[;] [d]on’t call members of the staff, don’t speak with clerks, don’t speak with legal secretaries, don’t speak with research attorneys, anybody who’s a member of the staff; it’s not appropriate,” respondent replied, “the only time I’ve called your chambers was when I was unrepresented.” At this point in the colloquy it was perfectly clear that Judge Brennan was asking respondent if she had called and talked to any of her staff and respondent clearly denied that she had ever done so while represented by counsel.
After this occurred, Judge Brennan had her secretary, Kirsten Turner, brought into the courtroom and placed under oath, and when Ms. Turner testified that respondent had called the day before, respondent replied, “That is not correct.” Again, at this point, respondent had to have known that she was being asked whether she had called and spoken to Judge Brennan’s secretary, not just whether she had tried to call Judge Brennan herself, and yet respondent still refused to admit that she had called and spoken to Judge Brennan’s secretary. Respondent also testified falsely about whether her clerk had called Judge Brennan’s chambers. Respondent first said that her clerk had called Judge Brennan’s chambers to see if the hearing could be rescheduled, but then about one minute later denied ever having said that. On the basis of this evidence, we agree with and adopt the JTC’s finding that respondent made false statements under oath in Judge Brennan’s courtroom.
2. COUNT TWO: FORGERY
The JTC found that respondent signed her former attorney’s (Ms. Dudley’s) name on legal documents (motion, brief, praecipe, and notice of hearing) without her permission and filed these documents with the court, also without her permission. We agree. While respondent admits that she signed Ms. Dudley’s name on the documents and filed them with the court, she asserts that she believed that she did have Ms. Dudley’s permission to do so. Ms. Dudley testified that she did not sign the documents and she did not give respondent permission to sign or file the documents on her behalf. Indeed, she testified that she had never given respon dent permission to sign her name on any documents. She also testified that respondent did not send her a copy of the legal documents. Finally, Ms. Dudley testified that when she became aware that the documents had been signed and filed without her permission by way of a telephone call from respondent’s now ex-husband’s attorney, she emailed respondent, stating:
I did not receive any contact from you this week and hopefully you did not file any pleadings with my name without me first reviewing them and without my permission.
We agree with the JTC that respondent’s contention that she believed that she had Ms. Dudley’s permission to sign Ms. Dudley’s name on the legal documents and file them with the court is not credible. To begin with, Ms. Dudley was not even representing respondent when respondent signed and filed the documents under Ms. Dudley’s name. The judgment of divorce expressly released Ms. Dudley from any further representation of respondent, and respondent was well-aware that Ms. Dudley was no longer representing her as evidenced by her May 5, 2011 email stating, “In the unlikely event the issue is not resolved tomorrow, I will retain an appellate person to handle the matter.”
In addition, after respondent signed Ms. Dudley’s name on the legal documents and filed them, respondent sent Ms. Dudley an email stating, “I tried contacting you earlier this week to obtain permission to file a quick pleading on my behalf under your name.” Respondent would not have tried to contact Ms. Dudley to obtain her permission to sign and file the documents under Ms. Dudley’s name if she already had Ms. Dudley’s permission to do so. Respondent also did not indicate in any manner, on any of the documents, that she was signing Ms. Dudley’s name with her permission. Finally, as discussed above, Ms. Dudley testified that she had never given respondent permission to sign her name or file documents on her behalf. On the basis of this evidence, we agree with the JTC that respondent signed Ms. Dudley’s name on legal documents absent Ms. Dudley’s permission and filed these documents with the court, also without Ms. Dudley’s permission.
3. COUNT THREE: MISREPRESENTATIONS
Both the master and the JTC found that respondent made factual misrepresentations to the JTC. We agree. Specifically, both the master and the JTC found that respondent lied to the JTC about: (a) having contacted Judge Brennan’s court on only four occasions; (b) having never been told by Judge Brennan’s staff that it was improper for her to make calls to them while she was represented by counsel; and (c) having Ms. Dudley’s permission to affix her signature to the motion filed on May 5, 2011. We agree.
Judge Brennan’s secretary, Kirsten Turner, testified that there were between five to fifteen occasions on which respondent called Judge Brennan’s chambers and she (Kirsten Turner) answered the telephone. In addition, Judge Brennan’s clerk, Ryan Matthews, testified that there were between six to eight occasions on which respondent called Judge Brennan’s chamber and he (Ryan Turner) answered the telephone. Both Ms. Turner and Mr. Matthews also testified that when respondent called while she was represented, they told her that she had to call her attorney and have her attorney call the office. On the basis of this evidence, we agree with and adopt the master’s and JTC’s findings that respondent lied to the JTC about having contacted Judge Brennan’s court on only four occasions and having never been told by Judge Brennan’s staff that it was improper for her to call them while she was represented by counsel. And, for the reasons already discussed with regard to count two, we agree with and adopt the master’s and JTC’s finding that respondent lied to the JTC about having Ms. Dudley’s permission to affix her signature to the motion filed on May 5, 2011.
The JTC also found that respondent lied to the JTC about: (a) having Ms. Dudley’s permission to file pleadings on her behalf; (b) having supplied a copy of the motion to Ms. Dudley; and (c) having supplied a copy of the notice of the hearing to Ms. Dudley. We agree. As already discussed above with regard to count two, Ms. Dudley testified that she never gave respondent permission to file pleadings on her behalf and respondent never supplied her with a copy of the motion or the notice of the hearing. Respondent’s former attorney, Ms. Burns, testified that respondent had done the same thing to her- signed her name on a motion without her permission, filed the motion without her permission, and never provided her with a copy of the motion. After respondent signed Ms. Dudley’s name on the legal documents and filed them, respondent sent Ms. Dudley an email stating, “I tried contacting you earlier this week to obtain permission to file a quick pleading on my behalf under your name.” This email demonstrates that respondent was aware that she did not have Ms. Dudley’s permission to file the pleading under her name at the time that she filed it. Ms. Dudley testified that she did not know that respondent had filed pleadings under her name until respondent’s now ex-husband’s attorney, William Brukoff, called her to discuss the pleadings. At this point, Ms. Dudley asked Mr. Brukoff to send her copies of the pleadings, and he did. According to Ms. Dudley, the only copies of the pleadings that she received were the ones sent to her by Mr. Brukoff. On the basis of this evidence, we agree with and adopt the JTC’s findings that respondent lied to the JTC about: (a) having Ms. Dudley’s permission to file pleadings on her behalf; (b) having supplied a copy of the motion to Ms. Dudley; and (c) having supplied a copy of the notice of the hearing to Ms. Dudley.
In addition to the factual misrepresentations identified by the JTC, we find that respondent also testified falsely about several other matters of varying significance. In one instance, respondent testified that she “didn’t have control over scheduling” the March 16th hearing, and that she did not find out about this hearing until late on March 15th. However, Mr. Matthews testified that both parties were required to consent to the hearing date, and Ms. Dudley testified that she had told respondent about the March 16th hearing as early as March 11th, but no later than March 14th. Respondent also testified that she had never referred to herself as “Judge Adams” when she called Judge Brennan’s chambers. Yet Mr. Matthews testified that “the majority of time[s]” that respondent called, she had referred to herself in this manner. Finally, respondent testified that she sent the May 5th email to Ms. Dudley about how she had tried to contact Ms. Dudley to obtain her permission to file a pleading under Ms. Dudley’s name because she was “trying to give [Ms. Dudley] another opportunity to file the motion” and respondent “was busy and.. . needed [Ms. Dudley] to do it.” However, given that the motion had already been filed by respondent at the time this email was sent, it is clear that respondent did not send the email for this purpose.
B. CONCLUSIONS OF LAW
The JTC concluded that respondent violated MRPC 3.3(a)(1), MCR 9.104(A), MCR 9.208(B), and Canons 1 and 2 of the Code of Judicial Conduct. After reviewing the record and hearing oral arguments, we agree with and adopt the JTC’s conclusions of law. Respondent violated MRPC 3.3(a)(1) by testifying falsely under oath in Judge Brennan’s courtroom and also by lying under oath during the JTC proceedings. She violated MCR 9.104(A)(l)-(5) by engaging in “conduct prejudicial to the proper administration of justice;” “conduct that exposes the legal profession or the court to obloquy, contempt, censure, or reproach;” “conduct that is contrary to justice, ethics, honesty, or good morals;” “conduct that violates the standards or rules of professional responsibility adopted by the Supreme Court;” and “conduct that violates a criminal law of a state or of the United States.” Respondent also violated MCR 9.104(A)(6) by making a “knowing misrepresentation of any facts or circumstances surrounding a request for investigation or complaint,” and she violated MCR 9.208 by lying to the JTC. Respondent violated Canon 1 by failing to maintain “high standards of conduct so that the integrity and independence of the judiciary may be preserved.” Finally, respondent violated Canon 2 by failing to “avoid impropriety and appearance of impropriety” and by failing to “respect and observe the law.”
C. SANCTIONS
The purpose of judicial disciplinary proceedings is to “protect the people from corruption and abuse on the part of those who wield judicial power.” In re Leon Jenkins, 437 Mich 15, 28; 465 NW2d 317 (1991). “In determining appropriate sanctions, we seek to ‘restore and maintain the dignity and impartiality of the judiciary and to protect the public.’ ” In re James, 492 Mich at 569, quoting In re Ferrara, 458 Mich 350, 372; 582 NW2d 817 (1998). We agree with the JTC’s assessment of the Brown factors- the considerations that this Court set forth to guide the formation of judicial-discipline recommendations.
The first Brown factor states that “misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct.” In re Brown, 461 Mich at 1292. As the JTC explained, “Respondent’s acts of calling Judge Brennan’s chambers while represented, after Respondent had been warned not to do so, and her repeated unauthorized signing of her attorneys’ names, Ms. Burns and Ms. Dudley, to various documents during the course of Respondent’s divorce constituted a pattern and practice of misconduct during that period.” In addition, respondent engaged in a pattern or practice of testifying falsely. To begin with, respondent repeatedly testified falsely under oath in Judge Brennan’s courtroom. Respondent did not just mistakenly state that she had not called Judge Brennan’s chambers on March 15, 2011. Instead, she repeatedly and quite vehemently denied ever calling Judge Brennan’s chambers while she was represented by counsel. Further, she lied to the JTC about a variety of different matters, such as the number of times she had called Judge Brennan’s chambers, whether anybody in Judge Brennan’s chambers had told her that it was improper for her to call there while she was represented by counsel, whether she had Ms. Dudley’s permission to sign her name and file pleadings on her behalf, whether she had provided a copy of the motion and notice of hearing to Ms. Dudley, when she was notified about the March 16th hearing, whether she referred to herself as “Judge Adams” when she called Judge Brennan’s chambers, and why she had sent the May 5th email to Ms. Dudley. And now, respondent continues to lie to this Court about the very same matters. She continues to shirk any responsibility for her wrongdoings or express any indication of remorse. Although she now admits that she did call Judge Brennan’s chambers, she claims that she did not intentionally testify falsely under oath when she vehemently and repeatedly denied calling Judge Brennan’s chambers because she simply misunderstood Judge Brennan’s questions. We believe this is disingenuous. As both the master and the JTC, and now this Court, have each concluded, this excuse is wholly unbelievable given the reality of the exchange that took place between Judge Brennan and respondent. Respondent lied to Judge Brennan, lied to the JTC, lied to the master, and lied to this Court. Therefore, respondent did not just engage in an “isolated instance of misconduct.” As Justice YOUNG offered in In re Noecker:
Where a respondent judge readily acknowledges his [or her] shortcomings and is completely honest and forthcoming during the course of the Judicial Tenure Commission investigation,... the sanction correspondingly can be less severe. However, where a respondent is not repentant, but engages in deceitful behavior during the course of a Judicial Tenure Commission disciplinary investigation, the sanction must be measurably greater. [In re Noecker, 472 Mich 1, 18; 691 NW2d 440 (2005) (YOUNG, J., concurring).]
The second Brown factor states that “misconduct on the bench is usually more serious than the same misconduct off the bench.” Id. Again, we agree with the JTC that although there is no evidence that respondent committed misconduct on the bench, she did “attempt[] to leverage her position as a [Wayne County Circuit Court] judge in order to obtain special treatment not available to other non-judicial litigants.” Despite being told by her attorney that Judge Brennan’s staff stated that the March 16, 2011 hearing could not be rescheduled, respondent took it upon herself to personally call Judge Brennan’s chambers in an attempt to reschedule the hearing. In addition, although respondent’s misconduct did not occur while she herself was on the bench, she did repeatedly testify falsely under oath in a courtroom, with all the gravity that such a venue should communicate, especially to a judge, in response to questions asked of her by a judge on the bench.
The third Brown factor states that “misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety.” Id. at 1293. We agree with the JTC that respondent’s misconduct was prejudicial to the actual administration of justice. Indeed, there is not much, if anything, that is more prejudicial to the actual administration of justice than testifying falsely under oath. Similarly, the fourth Brown factor states that “misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does.” Id. Again, we agree with the JTC that respondent’s misconduct implicated the actual administration of justice.
The fifth Brown factor states that “misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated.” Id. While respondent’s lying under oath in Judge Brennan’s courtroom may not have been premeditated, her continuingly disingenuous protestations before both the JTC and this Court of not having done this intentionally were most certainly premeditated, as were her other false statements before the JTC and this Court. That is, although respondent’s initial false testimony about never having called Judge Brennan’s chambers while she was represented may have been “spontaneous,” all of her lies thereafter were made after she had time to reflect upon these matters, i.e., after periods of “deliberations.” Respondent deliberately lied about: (a) misunderstanding Judge Brennan’s questions; (b) how many times she had called Judge Brennan’s chambers; (c) whether anybody in Judge Brennan’s chambers had told her that it was improper for her to call Judge Brennan’s chambers while she was represented by counsel; (d) whether she had Ms. Dudley’s permission to sign her name and file pleadings on her behalf; (e) whether she had provided a copy of the motion and notice of hearing to Ms. Dudley; (f) when she was notified about the March 16th hearing; (g) whether she referred to herself as “Judge Adams” when she called Judge Brennan’s chambers; and (h) why she had sent the May 5th email to Ms. Dudley. Respondent’s signing of Ms. Dudley’s name on legal documents and filing them with the court without Ms. Dudley’s permission was also premeditated.
The sixth Brown factor states that “misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery.” Id. Testifying falsely under oath- conduct in which respondent repeatedly engaged- is certainly “misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy.”
Finally, the seventh Brown factor states that “misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship.” Id. There is no evidence that respondent did anything to “disparage the integrity of the system on the basis of a class of citizenship.”
Despite finding that at least five of the Brown factors weigh in favor of more severe sanctions, and despite recognizing that testifying falsely under oath is the “antithesis of judicial integrity,” In re James, 492 Mich at 582 (Markman, J., concurring in part and dissenting in part), the JTC concluded that a suspension for 180 days without pay would constitute a sufficient sanction. We respectfully disagree. We do not believe that such a sanction would sufficiently address the harm done to the integrity of the judiciary. Indeed, just last term this Court held that testifying falsely under oath “is entirely incompatible with judicial office and warrants removal.” In re Justin, 490 Mich 394, 419; 809 NW2d 126 (2012). The “act of lying under oath categorically renders [a judge] unfit for office.” Id. at 424.
“Our judicial system has long recognized the sanctity and importance of the oath. An oath is a significant act, establishing that the oath taker promises to be truthful. As the “focal point of the administration of justice,” a judge is entrusted by the public and has the responsibility to seek truth and justice by evaluating the testimony given under oath. When a judge lies under oath, he or she has failed to internalize one of the central standards of justice and becomes unfit to sit in judgment of others.
Certainly, Judicial Tenure Commission proceedings are intended to be remedial, not penal. The vast majority of misconduct found by the Judicial Tenure Commission is not fatal; rather, it reflects oversight or poor judgment on the part of a fallible human being who is a judge. However, some misconduct, such as lying under oath, goes to the very core of judicial duty and demonstrates the lack of character of such a person to be entrusted with judicial privilege.
... Lying under oath, as the respondent has been adjudged to have done, makes him unfit for judicial office.” [Id. at 424, quoting In re Noecker, 472 Mich at 17-18 (Young, J., concurring).]
“Judges occupying the watchtower of our system of justice, should preserve, if not uplift, the standard of truth, not trample it underfoot or hide in its shady recesses.” In re Ferrara, 458 Mich at 372. “The effectiveness of our judicial system is dependent upon the public’s trust.” Id. When a judge lies under oath, the public’s trust and confidence in the judiciary is seriously eroded. In re Noecker, 472 Mich at 13; In re Ferrara, 458 at 364 (“When a judge’s character and morals come into question not only do the people lose respect for him as a person, but worse, respect for the Court over which he presides is lost as well.”). (Quotation marks and citation omitted.)
“The most fundamental premise of the rule of law is that equivalent misconduct should be treated equivalently.” In re Brown, 461 Mich at 1292. “[U]n-explained disparities in punishment cannot be countenanced by a system with hopes of maintaining the public’s faith in its just and fair administration.” Id. at 1293. This Court has consistently imposed the most severe sanction by removing judges for testifying falsely under oath. See In re Ryman, 394 Mich 637, 642-643; 232 NW2d 178 (1975); In re Loyd, 424 Mich 514, 516, 535-536; 384 NW2d 9 (1986); In re Ferrara, 458 Mich at 372-373; In re Noecker, 472 Mich at 3, 12-13; In re Nettles-Nickerson, 481 Mich 321, 322; 750 NW2d 560 (2008); In re Justin, 490 Mich at 396-397; In re James, 492 Mich at 568-570. Because we can discern no compelling reason to treat this case any differently, and because testifying falsely under oath is “antithetical to the role of a Judge who is sworn to uphold the law and seek the truth,” In re Ferrara, 458 Mich at 369 (quotation marks and citation omitted), and also because respondent has not demonstrated any apparent remorse for her misconduct and continues to deny responsibility for her actions, we believe that the only proportionate sanction is to remove respondent from office.
IV CONCLUSION
We remove respondent from judicial office because we find removal necessary to restore and maintain the dignity and honor of the judiciary and, most importantly,. to protect the public. In addition, because respondent engaged in conduct involving “deceit or intentional misrepresentation,” pursuant to MCR 9.205(B), we order respondent to pay costs of $8,498.40 to the JTC. Pursuant to MCR 7.317(C)(3), the clerk is directed to issue the judgment order forthwith.
Young, C.J., and Kelly, Zahra, and Viviano, JJ., concurred with Markman, J.
See MCR 9.211 (“The examiner shall present the evidence in support of the charges set forth in the complaint, and at all times shall have the burden of proving the allegations by a preponderance of the evidence.”).
MCL 750.423(1) provides:
Any person authorized by a statute of this state to take an oath, or any person of whom an oath is required by law, who willfully swears falsely in regard to any matter or thing respecting which the oath is authorized or required is guilty of perjury, a felony punishable by imprisonment for not more than 15 years.
MCL 750.248(1) provides:
A person who falsely makes, alters, forges, or counterfeits a public record, or a certificate, return, or attestation of a clerk of a court, register of deeds, notary public, township clerk, or any other public officer, in relation to a matter in which the certificate, return, or attestation may be received as legal proof, or a charter, will, testament, bond, writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or an order; acquittance of discharge for money or other property, or a waiver, release, claim or demand, or an acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for the payment of money, or an accountable receipt for money, goods, or other property with intent to injure or defraud another person is guilty of a felony punishable by imprisonment for not more than 14 years.
MCL 750.249(1) provides:
A person who utters and publishes as true a false, forged, altered, or counterfeit record, instrument, or other writing listed in [MCL 750.248] knowing it to be false, altered, forged, or counterfeit with intent to injure or defraud is guilty of a felony punishable by imprisonment for not more than 14 years.
The JTC determined that the master had erred by analyzing the allegations in count two of the complainant under the standards set forth in the criminal statutes for forgery and uttering and publishing. That is, the master could have found that respondent signed Ms. Dudley’s name on the motion and filed it without Ms. Dudley’s permission without having to also find that respondent did this with an “intent to injure or defraud.” We agree. We do not have to find that respondent violated a criminal statute to conclude that respondent engaged in judicial misconduct worthy of a sanction. See In re Halloran, 466 Mich 1219, 1220; 647 NW2d 505 (2002) (“[T]he Supreme Court has found a judge’s conduct to violate the Code of Judicial Conduct without regard to whether criminal charges were filed, or even in cases in which a judge has been acquitted in criminal proceedings.”). Similarly, respondent’s contention that the JTC violated Michigan’s ‘separation of powers’ doctrine, Const 1963, art 3, § 2, by charging respondent with felony violations is meritless. Although the JTC clearly does not possess the authority to bring criminal charges against a judge, it just as clearly does possess the authority to investigate and adjudicate the conduct of judges, including conduct that may also involve violations of criminal laws. See Canon 2(B) of the Michigan Code of Judicial Conduct (“A judge should respect and observe the law.”); In re Mikesell, 396 Mich 517, 528; 243 NW2d 86 (1976) (“The proceedings of the [JTC] are investigatory and advisory and are not binding upon the Supreme Court. No determination of criminal guilt is made, but merely a determination of the [JTC’s] view of the conformity of the subject of investigation to the state constitutional standards for judicial office. Similarly, the resulting Order of the Supreme Court does not operate as a sanction for criminal guilt but as a judgment on judicial fitness.”) (quotation marks and citation omitted).
The JTC did not address the allegation that respondent lied to the JTC about having been walking away from counsel’s table on her way out of the courtroom when Judge Brennan asked respondent about calling her chambers the day before.
MCR 9.205(B) provides:
In addition to any other sanction imposed, a judge maybe ordered to pay the costs, fees, and expenses incurred by the commission in prosecuting the complaint only if the judge engaged in conduct involving fraud, deceit, or intentional misrepresentation, or if the judge made misleading statements to the commission, the commission’s investigators, the master, or the Supreme Court.
“[I]t is the JTC’s, not the master’s conclusions and recommendations that are ultimately subject to review by this Court.” In re Chrzanowski, 465 Mich 468, 481; 636 NW2d 758 (2001).
Respondent argues that she was not under oath when she was asked about the telephone call. We agree with the master and the JTC that she was. It is undisputed that respondent was placed under oath near the beginning of the proceedings on March 16, 2011, while she was at counsel’s table. Respondent remained at counsel’s table during the entire proceeding, she did not leave the courtroom, and she was not at any point told that she was no longer under oath. Indeed, when respondent indicated that she had not spoken to anyone in Judge Brennan’s chambers the day before, Judge Brennan had her secretary, Kirsten Turner, brought into the courtroom and made it a point to place Ms. Turner under oath before asking Ms. Turner whether someone had called Judge Brennan’s chambers the day before and identified herself as Judge Adams. On the basis of this evidence, we agree with the master and the JTC that respondent was- and should have known that she was- still under oath when she repeatedly denied having called Judge Brennan’s chambers.
Specifically, respondent stated at one point or another in this regard, “I didn’t call your chambers directly;” I did not call your staff directly;” “I did not call anyone direct — your chambers directly;” “Again, I did not call your staff - your chambers directly;” “I did not call anyone - your chambers;” “I did not have any conversation;” “I did not call your chambers directly;” “The only time I’ve called your chambers was when I was unrepresented;” “I haven’t admitted to speaking with anyone;” “maybe someone from my court called but I did not call;” “I did not call here;” and “I’ve never called your chambers directly.”
In addition to testifying falsely under oath in Judge Brennan’s courtroom, we observe that respondent also treated Judge Brennan in a highly disrespectful manner. Respondent repeatedly interrupted Judge Brennan, spoke over her, and clearly sought to evade her questions.
Respondent argues that the admission of these emails violates the attorney-client privilege. We disagree. To begin with, as already discussed, when these emails were sent, Ms. Dudley was no longer respondent’s attorney. Furthermore, these emails do not contain “confidential communications between... a client and [her] attorney,” Schaibly v Vinton, 338 Mich 191, 196; 61 NW2d 122 (1953), made “for the purpose of obtaining [or giving] legal advice,” Alderman v People, 4 Mich 414, 423 (1857).
Respondent’s former attorney, Janice Burns, testified that respondent had also signed Ms. Burns’ name on a motion without her permission, filed the motion without her permission, and never provided her with a copy of the motion.
MRPC 3.3 provides, in pertinent part:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer[.]
At the very least, respondent violated the perjury statute, MCL 750.423(1).
MCR 9.208(B) (cooperation with investigation) provides, “A judge, clerk, court employee, member of the bar, or other officer of a court must comply with a reasonable request made by the commission in its investigation.”
Canon 1 provides:
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary. The provisions of this code should be construed and applied to farther those objectives.
Canon 2 provides, in pertinent part:
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might he viewed as burdensome by the ordinary citizen and should do so freely and willingly.
B. A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.
Although we ultimately agree with the examiner that a 180-day suspension constitutes an insufficient sanction under the instant circumstances and that this Court possesses the authority to remove respondent from office even though the JTC only recommended the suspension, see MCR 9.225, we question the examiner’s authority to argue before this Court that we should impose a sanction other than the one recommended by the JTC. MCR 9.202(G)(2)(a) expressly states that the examiner “shall not be present during the deliberations of the commission or participate in any other manner in the decision to file formal charges or to recommend action by the Supreme Court with regard to that judge[.]” (Emphasis added.) Although MCR 9.215 allows the examiner to file with the JTC a “statement of objections to the report of the master,” we are unaware of any provision that allows the examiner to file with this Court a statement of objections to the JTC’s recommendation. (Emphasis added.) MCR 9.224(A) provides that the respondent may file with this Court “a petition to reject or modify the commission’s recommendation,” and MCR 9.224(B) provides that, if such a petition is filed with this Court, the commission must file with this Court “a brief supporting its finding.” It says nothing about the examiner filing with this Court a brief supporting his personal objections to the commission’s recommendation. Instead, it appears that after the JTC has made its findings and its recommendation and the respondent has filed a petition to reject or modify the commissioner’s recommendation, the role of the examiner is to represent the JTC before this Court.
See also In re Servaas, 484 Mich 634, 702; 774 NW2d 46 (2009) (Markman, J., dissenting) (“Because respondent engaged in a prolonged and deliberate effort to mislead [the Supreme Court Administrative Office], the master, the JTC, and this Court.. . including and especially testifying falsely under oath, I believe the JTC has reasonably concluded that respondent should be removed from office.”), an opinion joined by three justices. The majority did not express disagreement concerning the propriety of removing a judge from office for lying under oath, but rather disagreed with the minority that the respondent had been shown to be lying in this case.
The only arguable exception of which we are aware is In re Thompson., 470 Mich 1347; 682 NW2d 477 (2004), in which the JTC and respondent reached a plea agreement for a 90-day suspension despite the complaint having included a generalized allegation that respondent had “demonstrated a lack of candor” before the JTC. | [
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Zahra, J.
At issue in this case is whether Michigan’s no-fault insurance act requires defendant, Auto-Owners Insurance Company, to pay the entire cost of a van modified to accommodate the plaintiffs wheelchair, including both the base price of the van and the separately introduced modifications. We conclude that defendant is only required to pay for the modifications because only the modifications are allowable expenses “for an injured person’s care, recovery, or rehabilitation” under MCL 500.3107(l)(a). Because the base price of the van is an ordinary transportation expense — an expense that is as necessary for the uninjured as the injured — and is easily separated from the modifications, defendant is not required to pay for it under the no-fault insurance act. Accordingly, we reverse the Court of Appeals’ decision to the extent it held otherwise. Furthermore, at the trial court, plaintiff, Kenneth Admire, never argued that defendant had contractually agreed to reimburse him for the base price of the van, thereby waiving that issue. Thus, we need not determine whether the Court of Appeals correctly concluded that the parties’ agreement was ambiguous, and we vacate that portion of the Court of Appeals’ judgment. Plaintiffs application for leave to appeal as cross-appellant is denied, and the case is remanded to the trial court for entry of summary disposition in defendant’s favor.
I. FACTS AND PROCEEDINGS
In 1987, plaintiff suffered catastrophic injuries when the motorcycle he was riding collided with a car being operated by an insured of defendant. Plaintiffs injuries left him unable to speak or walk and rendered his entire right side virtually useless. A family member tends to all of plaintiffs personal and financial affairs.
Plaintiff requires wheelchair-accessible transportation to go to work five days a week, visit his family, attend medical appointments, and get around the community. On three prior occasions, defendant agreed to pay the full cost of purchasing a van large enough for plaintiff to get in and out while remaining in his wheelchair. Defendant also agreed to pay the cost of modifying the vehicle to make it wheelchair-accessible. In 1988, 1994, and 2000, plaintiff and defendant entered into contracts under which defendant purchased a van and paid for the necessary modifications with the expectation that the van would last for seven years. At the end of the van’s life, plaintiff would give defendant notice of his intent to purchase a new van, and the parties would enter a new agreement. The most recent “Transportation Purchase Agreement” was executed on April 26,2000. It specified that plaintiff was to notify defendant 60 days before purchasing a new van and that the old van’s value would be applied to the purchase price of the new van.
In December 2006, plaintiff, through his guardian, notified defendant that it was time to purchase a new van. In January 2007, defendant informed plaintiff by letter that it had determined that it was not obligated to pay the base purchase price of a new van under the transportation purchase agreement or the no-fault insurance act. Defendant acknowledged that, pursuant to the transportation purchase agreement, the “current van should be traded in toward the price of a new van” should plaintiff choose to purchase a new van himself. Defendant further stated that it would “pay for the necessary medical modifications needed on any vehicle purchased... as well as . . . any medical mileage incurred in relation to Mr. Admire’s motor vehicle accident . . . .” Plaintiffs guardian purchased the van for him, and after the modifications were reimbursed and the trade-in value was applied, plaintiff was left with out-of-pocket expenses of $18,388.50.
Plaintiff sued defendant for reimbursement of the $18,388.50, claiming that it was an allowable expense under Michigan’s no-fault insurance act. Defendant moved for summary disposition, arguing that this Court’s decision in Griffith v State Farm Mutual Automobile Insurance Co required it to pay for medically necessary modifications, but not the base price of the van. Plaintiff argued that conflicting precedent interpreted the no-fault insurance act to require reimbursement for the entire modified van. The Ingham Circuit Court denied defendant’s motion for summary disposition and instead granted summary disposition in favor of plaintiff.
Defendant appealed by right in the Court of Appeals, which affirmed in an unpublished decision. In dicta, the Court of Appeals panel concluded that the transportation purchase agreement was ambiguous regarding who had the responsibility to pay the base price of a new van:
On its face, the contract does not provide that defendant is required to buy a new van. It says that the van shall be traded in on a replacement van but it does not say that defendant will pay for the replacement. However, the contract also does not say that plaintiff is responsible for buying the new van.[ ]
Accordingly, the panel held that “the trial court erred in evidently concluding that the transportation purchase agreement mandated that it grant summary disposition to plaintiff.”
The Court of Appeals panel then proceeded to address whether Michigan’s no-fault insurance act required reimbursement for both the purchase price of a van and the modifications to accommodate the insured’s disability. Defendant again relied primarily on this Court’s decision in Griffith, which held that the no-fault insurance act did not require the insurer to reimburse the insured for food costs absent evidence that the food was somehow different than what was required before the plaintiffs accident. So, reasoned defendant, the base price of the van was not compensable because plaintiff required transportation before and after the accident; the modifications were, however, compensable because they were not required before the accident.
The panel disagreed with defendant’s characterization of Griffith, instead relying on its own decision in Begin v Michigan Bell Telephone Co. As in this case, Begin involved an insurer that had refused to compen sate a claimant for a modified van. The panel in this case agreed with the reasoning in Begin that a van and its modifications are “so blended . . . that the whole cost is an allowable expense if it satisfies the statutory criteria for being sufficiently related to injuries sustained in a motor vehicle accident. . . .” Thus, like the Begin Court, the panel reasoned that a modified van was more like food provided at a care facility (which Griffith acknowledged was covered by the no-fault insurance act) than ordinary food eaten at home by an injured person (which Griffith determined was not covered). The panel concluded that because plaintiff could not drive an unmodified vehicle, unlike the Griffith plaintiff who could still eat ordinary food, the modified vehicle must be covered in its entirety.
Defendant sought leave to appeal. After hearing oral arguments on the application, we granted leave to appeal to determine whether the no-fault insurance act requires reimbursement for the entire cost of the modified vehicle.
II. STANDARD OF REVIEW
Whether MCL 500.3107(l)(a) requires an insurer to reimburse an insured claimant for the full cost of a vehicle and modifications necessary to accommodate the insured claimant’s disability is a question of statutory interpretation that this Court reviews de novo.
III. ANALYSIS
A. LEGAL BACKGROUND
MCL 500.3107(l)(a) permits an injured person to recover personal injury protection (PIP) benefits from an insurer for “[allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” This Court has often been called on to determine the reach of this provision. This case particularly implicates our 2005 decision in Griffith, in which we interpreted the clause “for an injured person’s care, recovery, or rehabilitation.” The plaintiff’s husband in Griffith, Douglas Griffith, suffered from severe brain damage stemming from a motor vehicle accident. For the duration of Griffith’s hospitalization and his stay at a 24-hour nursing facility, his insurer, State Farm Mutual Automobile Insurance Company, covered ordinary expenses, including Griffith’s food. On his return home he still required assistance with basic tasks like eating and bathing. State Farm refused to reimburse the plaintiff for Griffith’s food because it determined that the food costs were not an “allowable expense” under MCL 500.3107(l)(a).
In determining whether the particular expense was for “ ‘reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation,’ ” this Court defined the terms “care,” “recovery,” and “rehabilitation.” This Court gave “recoveiy” and “rehabilitation” their dictionary definitions, defining “recovery” as “ ‘restoration or return to any former and better condition, [especially] to health from sickness, injury, addiction, etc.,’ ” and “rehabilitate” as “ ‘to restore or bring to a condition of good health, ability to work, or productive activity.’ ” Defining “care” required this Court to consider the term’s meaning in light of the statutory terms “recovery” and “rehabilitation”:
Generally, “care” means “protection; charge,” and “to make provision.” Random House Webster’s College Dictionary (2001). Thus, taken in isolation, the word “care” can be broadly construed to encompass anything that is reasonably necessary to the provision of a person’s protection or charge. But we have consistently held that “[c]ourts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.” State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). Therefore, we must neither read “care” so broadly as to render nugatory “recoveiy and rehabilitation” nor construe “care” so narrowly that the term is mere surplusage. “Care” must have a meaning that is related to, but distinct from, “recovery and rehabilitation.”
As an initial matter, it is important to note that the statute does not require compensation for any item that is reasonably necessary to a person’s care in general. Instead, the statute specifically limits compensation to charges for products or services that are reasonably necessary “for an injured person’s care, recovery, or rehabilitation.” (Emphasis added.) This context suggests that “care” must be related to the insured’s injuries.
“Care” must have a meaning that is broader than “recovery” and “rehabilitation” but is not so broad as to render those terms nugatory. As noted above, both “recovery” and “rehabilitation” refer to an underlying injury; likewise, the statute as a whole applies only to an “injured person.” It follows that the Legislature intended to limit the scope of the term “care” to expenses for those products, services, or accommodations whose provision is necessitated by the injury sustained in the motor vehicle accident. “Care” is broader than “recovery” and “rehabilitation” because it may encompass expenses for products, services, and accommodations that are necessary because of the accident but that may not restore a person to his preinjury state.[ ]
Having determined at the outset that Griffith’s food could not be for recovery or rehabilitation because it lacked curative properties, this Court proceeded to explain that ordinary food also could not be for Grif fith’s care. This Court determined that Griffith’s food costs failed to satisfy the requirements of MCL 500.3107(l)(a) because the food was Griffith’s “ordinary means of sustenance” and “if Griffith had never sustained, or were to fully recover from, his injuries, his dietary needs would be no different than they are now.” Therefore, this Court concluded, the food costs were not an allowable expense under the statute.
This Court drew an important distinction between ordinary food eaten by an injured person at home and ordinary food provided by a hospital during the injured person’s stay, stating that
it is “reasonably necessary” for an insured to consume hospital food during in-patient treatment given the limited dining options available. Although an injured person would need to consume food regardless of his injuries, he would not need to eat that particular food or bear the cost associated with it. Thus, hospital food is analogous to a type of special diet or select diet necessary for an injured person’s recovery. Because an insured in an institutional setting is required to eat “hospital food,” such food costs are necessary for an insured’s “care, recovery, or rehabilitation” while in such a setting. Once an injured person leaves the institutional setting, however, he may resume eating a normal diet just as he would have had he not suffered any injury and is no longer required to bear the costs of hospital food, which are part of the unqualified unit cost of hospital treatment.[ ]
This Court specifically noted that MCL 500.3107(l)(a) requires insurers to cover hospital food as an allowable expense for the care of an injured person because the person is required to eat hospital food precisely because of his or her need for care in the hospital. Finally, this Court concluded that requiring an insurer to reimburse the insured for ordinary, everyday expenses merely because of a remote relationship to the insured’s care undermines the no-fault insurance act’s goal of cost containment.
Several Court of Appeals decisions have attempted to interpret MCL 500.3107(1)(a) in light of Griffith, yet they have taken inconsistent approaches in Griffith’s application. For instance, the Court of Appeals applied Griffith to housing expenses in Ward v Titan Insurance Co. The majority adopted an incremental approach to allowable expenses and stated the following:
Under the Griffith analysis, plaintiffs housing costs are only compensable to the extent that those costs became greater as a result of the accident. Plaintiff must show that his housing expenses are different from those of an uninjured person, for example, by showing that the rental cost for handicapped accessible housing is higher than the rental cost of ordinary housing. In the absence of that kind of factual record, the trial court erred by concluding that plaintiff was entitled to housing costs compensation merely on the basis of the amount plaintiff was currently paying in rent, for a residence that the record does not even demonstrate was handicapped accessible.[ ]
As a result, the court reversed the trial court’s award of the entire amount of the insured’s postinjury housing, instead holding that an insurer is only liable for the increase in housing costs attributable to the injury.
Similarly, in Hoover v Michigan Mutual Insurance Co, the Court of Appeals applied Griffith to other household expenses, including real estate tax bills, utility bills, homeowner’s insurance, home maintenance, telephone bills, and security system costs. The Hoover Court understood Griffith as requiring “but for” causation between the claimed expense and the injury:
At its core, the holding in Griffith requires a court to determine whether expenses would not have been incurred but for the accident and resulting injuries. Stated otherwise, the question is whether the expenses would have been incurred in the course of an ordinary life unmarred by an accident. And if they would have been incurred, like the ordinary food costs at issue in Griffith, a causal connection between the expenses and the accidental bodily injury would be lacking and it could not be said that the act of providing products, services, and accommodations was necessitated by the accidental bodily injury.[ ]
The Hoover Court understood Griffith as requiring a comparison of the injured person’s preinjury expenses to the injured person’s postinjury expenses, with the insurer covering the difference.
But the Court of Appeals adopted a different approach in Begin, which presented a similar factual situation to the instant case: a dispute over whether an insurer was responsible for the base price of a van for the insured plaintiff. The Begin Court disavowed any interpretation of Griffith that required a comparison to the injured person’s preinjury expenses:
[T]he Griffith Court, when discussing the cost of food provided to an injured person in an institutional setting, did not suggest that only the marginal increase in the cost of such food served in an institutional setting would be an allowable expense. Nor did the Court suggest that only the marginal cost of modifying regular shoes would be a recoverable “allowable expense” under MCL 500.3107(1)(a). Rather, in each example, the product, service, or accommodation used by the injured person before the accident is so blended with another product, service, or accommodation that the whole cost is an allowable expense if it satisfies the statutory criteria of being sufficiently related to injuries sustained in a motor vehicle accident and if it is a reasonable charge and reasonably necessary for the injured person’s care, recovery, or rehabilitation under MCL 500.3107(1)(a).[ ]
Thus, Begin held, if a particular product, service, or accommodation satisfies the requirements of MCL 500.3107(1)(a), then the insurer must also cover as “allowable expenses” all associated expenses that are “blended” with the qualifying expense. This view directly conflicts with the “setoff” analysis promulgated in Ward and Hoover. Because the statutory language plainly cannot support these divergent interpretations, we now seek to clarify the reach of MCL 500.3107(1)(a).
B. INTERPRETATION
As stated, MCL 500.3107(1)(a) permits an injured person to recover PIP benefits from an insurer for, “[allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” Under Griffith, this provision requires that “an ‘allowable expense’ must be ‘for’ one of the following: (1) an injured person’s care, (2) his recovery, or (3) his rehabilitation.”
This case requires us to clarify when a particular product, service, or accommodation is actually “for” the injured person’s “care, recovery, or rehabilitation.” In this context, the word “for” as a preposition “implies a causal connection” and is defined as “ ‘with the object or purpose of. . ..’ ” Accordingly, a claimant can recover as an allowable expense the charge for a product, service, or accommodation that has the object or purpose of effectuating the injured person’s care, recovery, or rehabilitation. The causal connection is further implied in the statutoxy language making compensable only those products, services, or accommodations that are “for an injured person’s care, recovery, and rehabilitation.” This language suggests that any product, service, or accommodation consumed by an uninjured person over the course of his or her everyday life cannot qualify because it lacks the requisite causal connection with effectuating the injured person’s care, recovery, or rehabilitation. An ordinary, everyday expense simply cannot have the object or purpose of effectuating an injured person’s care, recovery, or rehabilitation because it is incurred by everyone whether injured or not. For instance, Griffith explained that “the food that Griffith consumes is simply an ordinary means of sustenance rather than a treatment for his ‘care, recovery, or rehabilitation,’ ” because “if Griffith had never sustained, or were to fully recover from, his injuries, his dietary needs would be no different than they are now.” In sum, an ordinary, everyday product, service, or accommodation is not compensable under MCL 500.3107(1)(a) because that expense cannot he for the claimant’s care, recovery, or rehabilitation.
Further, nothing in the statutory language of MCL 500.3107(1)(a) supports the notion that postinjury allowable expenses should be reduced by the margin of the injured person’s preinjury expenses of the same character. Complying with MCL 500.3107(1)(a) and determining what products, services, and accommodations are actually for the injured person’s care, recovery, or rehabilitation requires a careful examination of the injured person’s postaccident expenses. A mere change in the injured person’s postaccident expenses is insufficient to satisfy MCL 500.3107(1)(a); the new expense must be of a wholly different essential character than expenses borne by the person before the accident to show that it is for the injured person’s care, recovery, or rehabilitation. But if an expense is new in its essential character, and thus actually for the injured person’s care, recovery, or rehabilitation, MCL 500.3107(1)(a) requires that it be covered in full regardless of whether the expense represents an increase or decrease in the injured person’s preaccident costs. Indeed, the provision states that allowable expenses consist of “all reasonable charges incurred for reasonably necessary products, services and accommodations . .. .” Thus, if a product, service, or accommodation satisfies the statutory criteria, it is fully compensable.
Special accommodations or modifications to an ordinary item present a particular challenge. A “combined” product or accommodation results from an ordinary expense, unchanged as a result of the injury, being joined with an accommodation or product that is actually for the injured person’s care, recovery, or rehabilitation. An “integrated” product or accommodation involves the blending of an ordinary expense with one that is for the injured person’s care, recovery, or rehabilitation in a way that the resulting product or accommodation cannot be separated easily into unit costs. Unlike an integrated product or accommodation, a combined product or accommodation can be separated easily, both conceptually and physically, so that the fact-finder can identify which costs are of a new character and are thus for the injured person’s care, recovery, or rehabilitation and which costs are ordinary, everyday expenses that are unchanged after the accident. As this Court suggested in Griffith, MCL 500.3107(1)(a) requires the insurer to cover a truly integrated product or accommodation in full because the entire expense, including the portions that might otherwise be considered ordinary, is necessary for the injured person’s care, recovery, or rehabilitation. But because a combined product or accommodation can be easily separated into components related to the injured person’s care, recovery, or rehabilitation and components unrelated to that care, recovery, or rehabilitation, only the related expenses are actually compensable. MCL 500.3107(1)(a) mandates this result because, when the product or accommodation can be easily separated into an ordinary expense and an expense for care, recovery, or rehabilitation, requiring the insurer to pay for the ordinary expenses would destroy the cost-containment aspect of the no-fault insurance act, something of which this Court has long been mindful.
This analysis is consistent with this Court’s application of MCL 500.3107(1)(a) in Griffith. In its discussion of insurance coverage for hospital food during the insured’s hospital stay, the Griffith Court stated that compensation was required because the insured was required to eat “that particular food.” This is an example of an integrated accommodation. The food, clothing, shelter, and any other ordinary products that are provided by the hospital as part and parcel of the hospital stay are not easily separated from the products, services, and accommodations provided by the hospital for the injured person’s care. Thus, the statute requires the insurer to pay the entire cost. The same could be said for the custom medical shoes briefly discussed in Griffith. When a medical products company produces a custom shoe, the shoe is an integrated product because the medical nature of the shoe, which is for the injured person’s care, recovery, or rehabilitation, cannot be separated from the ordinary need for shoes by an uninjured person. Thus, the entire cost of the shoe is an allowable expense.
In sum, MCL 500.3107(1)(a) only requires an insurer to pay for products, services, and accommodations that are reasonably necessary to the object or purpose of “an injured person’s care, recovery, or rehabilitation.” Post-accident expenses of a wholly new essential character satisfy the statutorily required causal connection that expenses be for the injured person’s care, recovery, or rehabilitation. Ordinary expenses that are the same for an injured and an uninjured person are not recoverable at all because the claimant cannot show that the expense is for his or her care, recovery, or rehabilitation. However, if an expense satisfies the statute, then it is recoverable in full; there is no setoff based on the injured person’s preinjury expenses of the same character. Some products, services, or accommodations might otherwise be ordinary but are so integrated with a product, service, or accommodation that is actually for the injured person’s care, recovery, or rehabilitation that the entire product, service, or accommodation must be included as an allowable expense under MCL 500.3107(l)(a). But if the ordinary expense is merely combined with a product, service, or accommodation for the injured person’s care, recovery, or rehabilitation in a way that is physically and conceptually separable, the ordinary expense fails to satisfy the statute and is not compensable.
C. APPLICATION
Applying this standard here, we conclude that the base price of the van is not an allowable expense under MCL 500.3107(1)(a). The statute only entitles plaintiff to reimbursement for products, services, and accommodations that are actually for his care, recovery, or rehabilitation, and only the van’s modifications rise to that standard. The base price of the van is an ordinary transportation expense of the same essential character as plaintiff would have incurred regardless of whether he was injured in an accident. While plaintiffs choice of transportation before his injury might not have been a van, the essential character of plaintiffs preinjury need for transportation has not changed. Like Griffith’s need for sustenance, had plaintiff never sustained his injury, or were he to fully recover, his need for ordinary transportation would be unchanged. Accordingly, the statute does not require that defendant reimburse plaintiff for the base price of the van.
Certain transportation expenses may be recoverable under MCL 500.3107(1)(a) because they are part of plaintiffs care, recovery, or rehabilitation. For instance, plaintiff requires some form of transportation to and from his medical appointments. Medically necessary transportation needs represent a change in character from plaintiffs preinjury requirements because the trips would not have been necessary in a life unmarred by injury. But by paying for the van’s modifications and so-called medical mileage, defendant has met its statutory obligations. Indeed, defendant has made it possible — through mileage and modifications — for plaintiff to use his otherwise ordinary transportation to reach medical appointments. But plaintiff cannot show that the van itself, an ordinary form of transportation, is actually for his care, recovery, or rehabilitation. Thus, MCL 500.3107(1)(a) does not require defendant to compensate plaintiff for the base price of the van.
This Court’s decision in Griffith leads inexorably to this result. The van itself is akin to the food that Griffith was eating at home. The character of plaintiffs general need for transportation — like Griffith’s food requirements — did not change as a result of the accident. And unlike the hospital food in Griffith, the van does not constitute an integrated product because the modified van, as a whole, was not actually for plaintiffs care, recovery, or rehabilitation. Hospital food is com-pensable because the injured person is required to eat that particular food during the hospital stay for his or her care and recovery. The Court likened hospital food to a special diet. But plaintiff only requires some form of transportation for his care, not any particular form, so his transportation needs are not akin to a special diet. Indeed, if defendant provided plaintiff with a taxi service that accounted for his disability, defendant would only be required to provide that service for those trips that had the object or purpose of plaintiffs care, recovery, or rehabilitation.
The parties agreed that plaintiff should have a vehicle with modifications as the means for transporting plaintiff on his medically necessary trips. But because the van and the modifications are easily separable, we must determine which expenses are actually for plaintiffs care, recovery, and rehabilitation and which are not. The modifications indisputably have the object or purpose of effectuating plaintiffs care, recovery, or rehabilitation because without the modifications plaintiff could not make use of his ordinary transportation for medically necessary trips. Thus, defendant was required to and did compensate plaintiff for the cost of the modifications pursuant to MCL 500.3107(1)(a). But the van is just a van; and while a van may not have been plaintiffs transportation preference, it remains an ordinary means of transportation used by the injured and uninjured alike.
Because the character of plaintiffs ordinary transportation needs remains unchanged, he is free to meet those needs in the way that best suits him. If plaintiff had already owned a van, defendant could have modified that van. If plaintiff wanted a Mercedes van, he could pay for the added luxury, and defendant could modify the van as required by statute. However, only the modifications and medical mileage — separable elements that actually represent a change in character from plaintiffs general preinjury transportation requirements — must be compensated pursuant to MCL 500.3107(1)(a).
IV CONCLUSION
Our decision in Griffith was sound, and we reaffirm that decision here. To the extent that the Court of Appeals’ opinions in Ward, Hoover, or Begin are inconsistent with this opinion, they are overruled. In concluding that the base price of the van was compensable, the Court of Appeals in this case misapplied our holding in Griffith. We therefore reverse that portion of the Court of Appeals’ judgment.
Furthermore, the Court of Appeals erred by unnecessarily concluding that the parties’ transportation purchase agreement was ambiguous regarding whether defendant was contractually obligated to reimburse plaintiff for the base price of the van regardless of the no-fault insurance act’s requirements. In fact, plaintiff waived the contractual argument by failing to raise it in his complaint or argue it to the trial court at any point. Accordingly, we vacate the portion of the Court of Appeals’ judgment regarding the parties’ contract. Plaintiffs application for leave to appeal as cross-appellant is denied, and the case is remanded to the trial court for entry of summary disposition in favor of defendant.
YOUNG, C.J., and Markman and KELLY, JJ., concurred with ZAHRA, J.
MCL 500.3101 et seq.
Griffith v State Farm Mut Auto Ins Co, 472 Mich 521; 697 NW2d 895 (2005).
Admire v Auto-Owners Ins Co, unpublished opinion per curiam of the Court of Appeals, issued February 15, 2011 (Docket No. 289080).
Id. at 3.
Id. The Court of Appeals erred by considering the implications of the transportation purchase agreement because plaintiff never raised that issue in his complaint or argued it at the trial court. Therefore, the issue was waived. See Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (“Michigan generally follows the ‘raise or waive’ rule of appellate review. Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court.”) (citation omitted).
Griffith, 472 Mich at 535-536.
Begin v Mich Bell Tel Co, 284 Mich App 581; 773 NW2d 271 (2009).
Id. at 596-597.
Admire, unpub op at 5.
Admire v Auto-Owners Ins Co, 490 Mich 871 (2011).
Admire v Auto-Owners Ins Co, 491 Mich 874 (2012).
Griffith, 472 Mich at 525-526.
See, e.g., Johnson v Recca, 492 Mich 169, 178-180; 821 NW2d 520 (2012) (holding that replacement services did not qualify as allowable expenses); Douglas v Allstate Ins Co, 492 Mich 241, 277-278; 821 NW2d 472 (2012) (explaining the dichotomy between allowable expenses and replacement services as it related to spousal care); Krohn v Home-Owners Ins Co, 490 Mich 145, 163-167; 802 NW2d 281 (2011) (holding that an experimental procedure was not an allowable expense); United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 6; 795 NW2d 101 (2009) (holding that the reasonableness requirement of MCL 500.3107 did not apply to MCL 500.3104(2)).
Griffith, 472 Mich at 534-540.
Id. at 524.
Id. at 524-525.
Id. at 525.
Id., at 532-536, quoting MCL 500.3107(1)(a). Because there was no dispute that Griffith was an injured person, the key issue was whether the ordinary food he was eating was reasonably necessary for his care, recovery, or rehabilitation.
Griffith, 472 Mich at 534, citing Random House Webster’s College Dictionary (2001).
Griffith, 472 Mich at 533-535. Justice Cavanagh would employ the analysis from Justice Marilyn Kelly’s dissent in Griffith, defining “care” as “the provision of what is necessary for the welfare and protection of someone,” to conclude that defendant should reimburse plaintiff for the cost of a van because transportation is necessary for plaintiffs welfare. Id. at 547 (Kelly, J. dissenting) (citation and quotation marks omitted). While Justice Cavanagh’s position is unsurprising — he, after all, supported the dissent in Griffith — it was rejected by the collective wisdom of this Court as inconsistent with MCL 500.3107(1)(a) in Griffith, and we reject it again here. We reiterate that the Griffith dissent defined “care” so broadly that “recovery and rehabilitation” were impermissibly stripped of meaning. See id. at 534 n 10.
Id. at 536.
Id.
Id. at 537-538.
Id. at 538 n 14.
Id. at 539.
Ward v Titan Ins Co, 287 Mich App 552; 791 NW2d 488 (2010).
Id. at 557-558 (citation omitted).
Hoover v Mich Mut Ins Co, 281 Mich App 617; 761 NW2d 801 (2008).
Id. at 628.
Id. at 629-631.
Begin, 284 Mich App at 583-584.
Id. at 596-597.
Id.
Griffith, 472 Mich at 532 n 8.
Id. at 531.
Id. at 531 n 6, quoting Random House Webster’s College Dictionary (1997). The same definition is found in Random House Webster’s College Dictionary (2005).
MCL 500.3107(1)(a) (emphasis added).
Griffith, 472 Mich at 536.
The noncompensability of the ordinary food the insured in Griffith consumed at home exemplifies this principle.
For example, if before an accident the claimant wore budget shoes costing $10 but as a result of the accident required custom medical shoes costing $100, the claimant would be entitled to the full $100, not merely the $90 difference between the pre- and postaccident shoe expenses. But if before the accident the claimant wore designer shoes costing $300, the claimant would still be entitled to the full $100 cost of the custom shoes because the custom shoes represent a change in character from the claimant’s preinjury needs and are thus for the claimant’s care, recovery or rehabilitation. Of course, MCL 500.3107(1)(a) also requires allowable expenses to be “reasonable charges” and they must be “reasonably necessary” for the claimant’s care, recovery, or rehabilitation.
MCL 500.3107(1)(a) (emphasis added).
See Griffith, 472 Mich at 537-538.
For an example of a combined product or accommodation, consider a medical insole that an injured person might have to put in his or her shoe following an accident. Certainly the insole is compensable as a product or accommodation for the injured person’s care, recovery, or rehabilitation. But the easy physical and conceptual separability of the insole and the actual shoe means that the shoe itself — an ordinary expense — will not be compensable because it is not for the injured person’s care, recovery, or rehabilitation.
See, e.g., Griffith, 472 Mich at 539 (“We have always been cognizant of this potential problem [obliterating cost containment] when interpreting the no-fault act....”); Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84, 89; 549 NW2d 834 (1996) (stating that “the no-fault insurance system... is designed to provide victims with assured, adequate, and prompt reparations at the lowest cost to both the individuals and the no-fault system”); O’Donnell v State Farm Mut Auto Ins Co, 404 Mich 524, 547; 273 NW2d 829 (1979) (“Because the first-party insurance proposed by the act was to be compulsory, it was important that the premiums to be charged by the insurance companies be maintained as low as possible. Otherwise, the poor and the disadvantaged people of the state might not be able to obtain the necessary insurance.”).
Griffith, 472 Mich at 537.
Id. at 535 n 12.
Justice Cavanagh suggests that our interpretation injects language into the statute. Quite the opposite. As this Court has often done, we merely highlight guideposts inherent in the statutory language to assist Michigan’s citizens — inside and outside the litigation context — in faithfully administering the statute’s plain language in the myriad situations in which it applies. See, e.g., Krohn v Home-Owners Ins Co, 490 Mich 145, 163-164; 802 NW2d 281 (2011) (concluding that a surgical procedure cannot be “reasonably necessary” under MCL 500.3107(1)(a) unless a plaintiff provides objective and verifiable evidence of the procedure’s efficacy); Frazier v Allstate Ins Co, 490 Mich 381, 385-386; 808 NW2d 450 (2011) (expounding on the beginning and end of the process of “alighting” as that term is used in MCL 500.3106(1)(c)); Thornton v Allstate Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986) (explaining that an injury arises out of the use of a motor vehicle as a motor vehicle under MCL 500.3105(1) when the “causal connection between the injury and the use of a motor vehicle as a motor vehicle is more than incidental, fortuitous, or ‘but for’ ”).
Id. at 537.
Id.
Justice Cavanagh argues that defendant must pay for the van because the van cannot be separated from plaintiffs general need for transportation and the van itself is for plaintiffs care. But we never suggest that the van can be separated from the general need for transportation. Indeed, driving a van is consistent with plaintiffs general need for transportation. Our focus is on the medically necessary modifications and medical mileage, which are separable from plaintiffs general need for transportation. Thus, because only the modifications and medical mileage are for plaintiffs care, recovery, or rehabilitation, they are the only items for which defendant must reimburse plaintiff.
Justice Cavanagh says that the van must be compensable because plaintiff did not require a van before the accident, similar to how the van’s medical modifications were unnecessary before the accident. But this argument misconstrues why the modifications are compensable. What makes the modifications compensable is that they represent a change in character from plaintiffs preinjury transportation needs, without which plaintiff could not use ordinary transportation, so they must be for plaintiffs care, recovery, or rehabilitation. But the van itself is an ordinary means of transportation, just like the motorcycle plaintiff used for transportation before his accident.
See Walters, 481 Mich at 387 (“Michigan generally follows the ‘raise or waive’ rule of appellate review. Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court.”) (citation omitted); Napier v Jacobs, 429 Mich 222, 227; 414 NW2d 862 (1987) (“A general rule of trial practice is that failure to timely raise an issue waives review of that issue on appeal.”). | [
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Per Curiam.
The significant question in this case is whether a person claiming personal protection insurance (PIP) benefits under MCL 500.3114(5)(a) for injuries arising from a motor vehicle accident may also recover an award for those same injuries under a health insurance policy that contains a provision titled, “Care and Services That Are Not Payable,” which provides, “[w]e do not pay for the following care and services: Those for which you legally do not have to pay or for which you would not have been charged if you did not have coverage under this certificate.” The Court of Appeals majority in this case held that because plaintiff Brent Harris, for purposes of the no-fault act, incurred expenses on receiving treatment, he could seek a duplicate award from his health insurer, third-party defendant Blue Cross Blue Shield of Michigan (BCBSM), because these were services for which Harris legally had to pay. We conclude that, regardless of when Harris incurred expenses arising from the motor vehicle accident, he simply did not legally have to pay these expenses. When Harris sought treatment for his injuries under MCL 500.3114(5)(a), the legally assigned insurer, defendant Auto Club Insurance Association (ACIA), became hable for all of Harris’s PIP expenses. Because BCBSM’s policy plainly provides that BCBSM is not hable for expenses that Harris does not legally have to pay, Harris cannot cohect expenses from both ACIA and BCBSM. Accordingly, we reverse in part the December 27, 2011 judgment of the Court of Appeals and reinstate the judgment of the OaHand Circuit Court.
I. FACTS AND PROCEEDINGS
On July 11, 2008, Harris was injured when he was struck by a motor vehicle while operating a motorcycle. Harris had a health insurance policy, referred to as a Professional Services Group Benefit Certificate (the policy or the certificate), with BCBSM. The owner of the motor vehicle that struck Harris was insured under a no-fault insurance policy issued by ACIA. Under the no-fault act, MCL 500.3101 et seq., the statutory definition of motor vehicle expressly “does not include a motorcycle.” However, MCL 500.3114 provides in relevant part:
(5) A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) The insurer of the owner or registrant of the motor vehicle involved in the accident.
Accordingly, if Harris claimed PIP benefits, ACIA would be responsible for paying those benefits, despite the fact Harris did not purchase a no-fault insurance policy from ACIA.
Following his accident, Harris sought insurance coverage for his medical bills from both ACIA and BCBSM. Harris expected BCBSM to pay the bills submitted by his medical care providers and expected ACIA to send a check directly to him in the same amount as the BCBSM payments. BCBSM initially paid $19,801.75 in benefits, but then retracted those payments and denied coverage, relying on provisions in its policy that stated BCBSM would not pay for medical care and services for which benefits are paid by another plan. In light of BCBSM’s denial of coverage, ACIA paid all Harris’s medical bills, including those bill payments retracted by BCBSM. ACIA has paid in excess of $85,000.
Harris then filed this lawsuit naming ACIA as the only defendant. Harris alleged that ACIA was required to pay him directly the same amounts paid by BCBSM to any healthcare provider for medical expenses arising from the motor vehicle accident. ACIA subsequently filed a third-party complaint against BCBSM. Harris then filed an amended complaint naming BCBSM as a defendant.
BCBSM and Harris filed motions for summary disposition. ACIA opposed the motions. The circuit court determined that because ACIA’s policy was uncoordi nated, ACIA was the primary insurer. The court also opined that the BCBSM certificate coordinated benefits with the no-fault policy. The court emphasized that the BCBSM certificate included a “Coordination of Benefits” provision. The court additionally relied on the “Physician and Other Professional Provider Services That Are Not Payable” and “Care and Services That Are Not Payable” provisions in concluding that BCBSM does not pay for care and services for which the insured legally does not have to pay or for which the insured would not have been charged if the insured did not have coverage. The court held that ACIA was primarily responsible for the payment of Harris’s medical expenses. Accordingly, the court denied Harris’s motion for summary disposition, but granted BCBSM’s motion, resulting in the dismissal of all the claims asserted against BCBSM by Harris and ACIA. The court also granted summary disposition in favor of ACIA against Harris.
Harris appealed, challenging only the circuit court’s order dismissing his claims against BCBSM. ACIA did not appeal the circuit court’s order dismissing its third-party claims against BCBSM. A split panel of the Court of Appeals reversed the circuit court’s order to the extent that it granted summary disposition to BCBSM. The majority characterized the dispute as “whether the BCBSM certificate coordinates with the no-fault policy.” The majority rejected BCBSM’s reliance on several provisions in the certificate that the circuit court relied on to preclude coverage.
The majority expressly addressed the provision of the BCBSM certificate titled, “Care and Services That Are Not Payable,” which as previously stated, provides: “We do not pay for the following care and services: Those for which you legally do not have to pay or for which you would not have been charged if you did not have coverage under this certificate.” Rather than applying the language of this provision, however, the majority looked to the Court of Appeals’ decisions in Shanafelt v Allstate Ins Co and Bombalski v Auto Club Ins Ass’n. In those cases, the panels “examined the meaning of the term ‘incurred’ in MCL 500.3107(1) and considered the no-fault insurer’s contention that the plaintiff did not ‘incur []’ expenses that were paid by the health insurer.” As noted by the majority, Shanafelt explained that “[t]he primary definition of the word ‘incur’ is ‘to become liable for.’ ” In applying this definition, Shanafelt reasoned that
[o]bviously, [the] plaintiff became liable for her medical expenses when she accepted medical treatment. The fact that plaintiff had contracted with a health insurance company to compensate her for her medical expenses, or to pay directly the health care provider on her behalf, does not alter the fact that she was obligated to pay those expenses.[ ]
Relying on this reasoning, the majority concluded that Harris had incurred expenses when he sought treatment for his injuries that arose from the motor vehicle accident, and that once he became liable for those expenses, BCBSM was in turn liable to cover those expenses. The majority concluded in part that the circuit court “erred in determining that the BCBSM certificate coordinated with the no-fault policy.”
The majority also addressed BCBSM’s contention that Shanafelt and Bombalski were inapposite because they addressed the no-fault act while the instant case turns on the language of BCBSM’s certificate. The majority rejected this claim because the term “incurred” is synonymous with the phrase, “legally obligated to pay.” The majority opined that the rationale of Shanafelt and Bombalski was nonetheless applicable. That is, “that a party receiving services has a legal obligation to pay for them when rendered and incurs the expense even if the expense is paid by an insurer, is applicable here, although the phrase and context are different.”
Judge MURRAY partially dissented. Judge MURRAY found controlling the provision in the certificate, titled “Care and Services That Are Not Payable.” Judge MURRAY noted that this provision was stated in the present tense, and that “whether we look to the factual situation at the time the complaint was filed or when plaintiff submitted his demand upon BCBSM, we know that plaintiff did not legally have to pay anything.”
We granted BCBSM’s application for leave to appeal, instructing that “[t]he parties shall include among the issues to be briefed whether [Harris] is entitled to a double recovery from both [ACIA] and [BCBSM] of medical expenses arising from a motorcycle accident involving a motor vehicle.”
II. STANDARD OF REVIEW
This Court reviews a circuit court’s decision on a motion for summary judgment de novo. We also review de novo the proper interpretation of a contract.
III. ANALYSIS
In Smith v Physicians Health Plan, Inc, this Court acknowledged that an insured who had elected an uncoordinated no-fault policy may, under certain circumstances, be able to obtain a double recovery from both the no-fault insurer and the health insurer for medical expenses arising from the same accident. “It is when both the no-fault automobile insurance and the health insurance are uncoordinated policies that multiple recovery is possible for the insured.” Thus, for example, in Shanafelt, the Court of Appeals permitted an insured who had an uncoordinated no-fault policy, and was allegedly injured in a motor vehicle accident, to collect the costs of her PIP benefits from her no-fault insurer despite the fact that the insured’s health insurer had already covered the expense.
However, in this case, Harris’s claim is fundamentally at odds with those cases. Unlike the claimant in Shanafelt, and other cases in which a double recovery of insurance benefits was awarded, Harris is not claiming benefits under a no-fault insurance policy that he or anyone else procured. Harris is neither a third-party beneficiary nor a subrogee of the no-fault policy issued to the person that struck him and thus he is not eligible to receive benefits under that policy. Rather, Harris’s right to PIP benefits arises solely by statute. As previously noted, MCL 500.3114 provides in relevant part:
(5) A person suffering accidental bodily injury arising from a motor vehicle accident which shows evidence of the involvement of a motor vehicle while an operator or passenger of a motorcycle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) The insurer of the owner or registrant of the motor vehicle involved in the accident.
The Court of Appeals majority erred when it concluded that Harris was covered by the uncoordinated no-fault insurance policy held by the motor vehicle driver involved in the accident. Harris is entitled to PIP coverage because MCL 500.3114(5)(a) designates ACIA as the responsible insurer. This conclusion is consistent with our holding in Smith, where we concluded that an insured must pay a premium to obtain insurance policies that provide for double recovery. Harris has simply not shown that he paid the necessary premiums to receive a double recovery.
Under MCL 500.3114(5)(a), Harris was not obligated to pay his medical expenses because, as a matter of law, ACIA was liable for Harris’s PIP expenses. This dispo sition is generally consistent with Judge Murray’s partial dissenting opinion, except that it focused almost entirely on the present tense of the phrase “for which you legally do not have to pay,” to determine the applicability of MCL 500.3114(5)(a). Judge MURRAY considered only whether Harris had potential liability “at the time the complaint was filed or when [he] submitted his demand upon BCBSM.” We conclude, however, that ACIA was liable regardless of when Harris first received treatment, when Harris filed a complaint against BCBSM or when Harris submitted his demand to BCBSM. Consequently, the provision of the BCBSM certificate titled “Care and Services That Are Not Payable,” is directly applicable when Harris claimed PIP benefits under MCL 500.3114(5)(a). Regardless of when Harris sought treatment for his injuries, those services are “[t]hose for which [Harris] legally [did] not have to pay . .. .” Accordingly, Harris is not entitled to a double recovery. We reverse in part the December 27, 2011 judgment of the Court of Appeals and reinstate the judgment of the Oakland Circuit Court.
Young, C.J., and Markman, Kelly, Zahra, McCormack, and Viviano, JJ., concurred.
MCL 500.3107(1)(a) provides that “personal protection insurance benefits are payable for . . . [allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.”
Harris v Auto Club Ins Ass’n, unpublished opinion per curiam of the Court of Appeals, issued December 27, 2011 (Docket No. 300256), p 4.
MCL 500.3101(2)(e).
An uncoordinated policy means that an insurer pays benefits regardless of other insurance the insured may have. Smith v Physicians Health Plan, Inc, 444 Mich 743, 747; 514 NW2d 150 (1994).
Harris, unpub op at 2.
Id. at 1.
Id. at 2-4.
Id. at 3-4.
Id. at 2-3, citing Shanafelt v Allstate Ins Co, 217 Mich App 625; 552 NW2d 671 (1996) and Bombalski v Auto Club Ins Ass’n, 247 Mich App 536; 637 NW2d 251 (2001).
Harris, unpub op at 3.
Id. at 3-4, quoting Shanafelt, 217 Mich App at 638.
Shanafelt, 217 Mich App at 542-543.
Harris, unpub op at 4.
Id. at 6.
Id. at 4.
Id.
Id.
Id.
Judge Murray concurred in the majority’s decision to affirm the circuit court’s order denying Harris’s motion for summary disposition, as well as the dismissal of ACIA, but dissented from the majority’s decision to reverse the order granting BCBSM’s motion for summary disposition. Harris, unpublished opinion per curiam of the Court of Appeals, issued December 27, 2012 (Docket No. 300256), p 1 (Murray, J., concurring in part and dissenting in part).
Id. (Murray, J., concurring in part and dissenting in part).
Harris v Auto Club Ins Ass’n, 491 Mich 933 (2012).
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).
Smith v Physicians Plan, Inc, 444 Mich 743, 752; 747; 514 NW2d 150 (1994).
Id. at 752, citing Haefele v Meijer, Inc, 165 Mich App 485; 418 NW2d 900 (1987).
Shanafelt, 217 Mich App 625.
Harris also relies on Bombalski, hut this reliance is misplaced. Admittedly, the facts of Bombalski are very similar to the instant case. However, the court in Bombalski did not address whether the insured was entitled to a double recovery because the parties agreed that he was. Indeed, “the parties did not dispute [the] plaintiff[-insured]’s entitlement to uncoordinated personal protection benefits from defendant in addition to the coverage provided by BCBSM.” Id. at 539. Rather, “the only issue in [Bombalski] involved [the] [p]laintiff[-insured]’s claim for reimbursement of medical benefits and the rate of that reimbursement.” Id. That is not the case here.
MCL 600.1405, “Rights of third party beneficiaries,” provides in part that:
[a]ny person for whose benefit a promise is made by way of contract, as hereinafter defined, has the same right to enforce said promise that he would have had if the said promise had been made directly to him as the promisee.
(1) A promise shall be construed to have been made for the benefit of a person whenever the promisor of said promise had undertaken to give or to do or refrain from doing something directly to or for said person.
There is no allegation in this case that the no-fault insurance policy contained any promise to benefit Harris.
A subrogee is defined as “[o]ne who is substituted for another in having a right, duty, or claim.” Black’s Law Dictionary (9th ed). However, subrogation is based on equitable principles that are not present in this case because Harris has a statutory remedy. Auto Club Ins Ass’n v New York Life Ins Co, 440 Mich 126, 132; 485 NW2d 695 (1992).
Smith, 444 Mich at 760. We also note that denying Harris double recovery is in accord with the no-fault act’s stated objectives to maintain availability of insurance at affordable rates and cost-effective health care, neither of which are promoted when decisions about health care are influenced by the potential of a matching cash grant. Id. at 757.
Harris, unpub op at 1 (Murray, J. concurring in part and dissenting in part). | [
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Cavanagh, J.
In this case we are asked to determine whether the smell of marijuana alone provides sufficient probable cause to conduct a search of a parked motor vehicle without a warrant. We hold that in making a determination of probable cause the smell of marijuana is but one factor to consider in the totality of the circumstances.
i
Defendants are five African-American males who were sitting in a parked vehicle at the Anazeh Sands Pool Hall in the City of Wyoming, on March 9, 1994. Wyoming Police Officer Walendzik was on routine patrol that night. As part of his patrol, Officer Walendzik drove through the parking lot where defendants were sitting in their vehicle. There were no specific incidents reported that evening; however, the parking lot was known as a high-crime area and was frequently the site of drug and alcohol complaints.
The parking lot was a public-access lot. There were quite a few cars parked in the lot, and defendants’ vehicle was parked two spaces away from another vehicle. Testimony at the preliminary examination indicated that all areas of the parking lot were well lit. In fact, the parking lot was so well lit that one officer testified that you could drive through the lot without headlights.
When Officer Walendzik drove through the parking lot around midnight on March 9, he observed the five defendants sitting in a parked vehicle with the engine off. While the officer observed that the defendants were eating Burger King sandwiches, he saw no unusual activity or furtive gestures by the occupants before he approached it. Furthermore, he did not see any smoke or marijuana in the car.
Nevertheless, he stated that his attention was drawn to the vehicle because, “[t]he vehicle was not running and there were five subjects just seated in the vehicle, not attempting to exit the vehicle, just sitting inside of there.” Officer Waiendzik approached the driver’s side of the vehicle on foot, and made contact with the person seated in the driver’s seat. The driver rolled down the window and the officer could smell the odor of burnt marijuana coming from inside the vehicle. Officer Waiendzik stated that he had no special training in the smell of marijuana and that he had not been administered a test regarding the smell of marijuana. However, he did testify that during his four-month training period he arrested people for possession of marijuana, and the other officers would point out the smell to him on many occasions.
Officer Waiendzik asked the occupants of the vehicle for identification and if they had been smoking marijuana. The defendants stated that they did not have identification with them and that they were not smoking marijuana, and they accused the officer of harassing them. Officer Waiendzik testified, “At that time I called dispatch and advised them that I was on a possible vcsa [violation of controlled substances act] and asked for them to send me a back-up. . . . Approximately 30 seconds later Officer Bivins arrived on the scene.”
Before Officer Bivins smelled the marijuana himself, Officer Waiendzik informed him of the circumstances and that he had smelled burnt marijuana emanating from the vehicle. Officer Waiendzik then asked Officer Bivins to confirm the smell “and help [him] getting those subjects out of the vehicle.” Officer Bivins then approached the passenger side of the vehicle. He testified that he smelled marijuana when the front seat passenger rolled down the window. Officer Bivins had no special training in the smell of marijuana; however, in his two-year career as a police officer he came in contact with the smell of marijuana “occasionally.”
After smelling the marijuana, Officer Bivins ordered the passenger, defendant Pimpleton, out of the vehicle and did a Terry patdown. He immediately felt the outline of a revolver in the inside pocket of the defendant’s coat. Officer Bivins handcuffed defendant Pimpleton, yelled to Officer Walendzik that there was a gun, and ordered the defendant to the ground. Meanwhile, Officer Walendzik went to the back of the vehicle and summoned more back-up.
At that time, one of the passengers in the back seat, defendant Vazquez, jumped out of the vehicle. Defendant Vazquez got about three or four steps away from the car before Officer Bivins tackled him and handcuffed him. Shortly thereafter, more officers arrived on the scene. They ordered the remaining defendants out of the vehicle and handcuffed them. The officers conducted a search of the vehicle, which revealed three additional handguns. The officers also found pieces of a cigar on the floorboard of the vehicle that appeared to contain marijuana. The actual presence of marijuana was never confirmed.
Defendant Taylor was charged with two counts of transporting and concealing stolen firearms, MCL 750.535b; MSA 28.803(2), and with one count of carrying a concealed weapon in an automobile, MCL 750.227; MSA 28.424. Defendants Vazquez, Morgan, and Howland each were charged with one count of transporting and concealing stolen firearms, and of carrying a concealed weapon in an automobile. Defendant Pimpleton was charged with one count of carrying a concealed weapon on his person.
A joint preliminary examination was conducted for all the defendants except Taylor. At the time of the preliminary examination, Taylor had not retained an attorney, nor had one been appointed for him. On the advice of the judge, Taylor waived his preliminary examination with the right to remand should he receive an attorney.
Officer Walendzik was the first witness to testify for the prosecution. After he relayed the events leading up to his decision to call for back-up, the attorney for defendant Howland objected to any further testimony about the evidence obtained by the officers on the basis of an illegal search of the vehicle. Defense counsel asserted that the officers did not have probable cause to order any of the defendants out of the vehicle on the basis of People v Hilber, 403 Mich 312; 269 NW2d 159 (1978), and People v Chernowas, 111 Mich App 1, 5-6; 314 NW2d 505 (1981). The judge took the objection under advisement while he gave the prosecution a fifteen-minute opportunity to call the prosecutor’s office to find case law contrary to Hilber and Chemowas.
The preliminary examination continued in the meantime until the prosecution was forced to ask for an adjournment in order to bring in a key witness from Florida who was expected to testify that the weapons found in the defendants’ vehicle were stolen from him. However, the attorney for defendant Vazquez objected, stating that the question “with regard to the request for an adjournment, is whether or not that’s going to be necessary if the Court has heard sufficient testimony to rule on co-counsel’s original motion for suppression” of the evidence in light of Hilber and Chernowas. After hearing arguments from both sides, the judge dismissed the case, even though the preliminary examination had never been completed. The judge stated, “I do not know of any way I can get around [Chernowas] if I, in fact, did want to.”
On appeal by the prosecutor from the magistrate’s decision, the circuit court agreed that the searches were illegal and the charges were properly dismissed. A split panel of the Court of Appeals denied leave to appeal for lack of merit on the grounds presented. The prosecutor appealed, and we granted leave to consider whether the odor of marijuana alone provided sufficient probable cause to search the vehicle.
n
The Fourth Amendment of the federal constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .’’US Const, Am IV. SThis fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by a neutral and detached judicial officer. California v Carney, 471 US 386, 390; 105 S Ct 2066; 85 L Ed 2d 406 (1985). In Carroll v United States, 267 US 132; 45 S Ct 280; 69 L Ed 543 (1925), the United States Supreme Court established an exception to the warrant requirement for vehicles, recognizing
a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. [Id. at 153.]
Thus, the Court held that a search of an automobile without a warrant, based upon probable cause to believe that the vehicle contained evidence of a crime in light of the exigency arising out of the mobility of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment. Id. at 158-159.
In Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970), the United States Supreme Court refined the exigency requirement, holding that the existence of exigent circumstances justifying the search of a vehicle without a warrant was to be determined at the time the automobile is seized. The Court has held that regardless of whether the vehicle was actually moving at the time it was seized is irrelevant. “The capacity to be ‘quickly moved’ was clearly the basis of the holding in Carroll, and our cases have consistently recognized ready mobility as one of the principal bases of the automobile exception.” Carney, 471 US 390.
As this Court noted in People v Shabaz, 424 Mich 42, 52; 378 NW2d 451 (1985), the Fourth Amendment does not guarantee freedom from all searches and seizures, rather only from those that are unreasonable. United States v Sharpe 470 US 675; 105 S Ct 1568; 84 L Ed 2d 605 (1985). However, the Fourth Amendment applies to all seizures, including those that involve only a brief detention, short of a traditional arrest. United States v Brignoni-Ponce, 422 US 873, 878; 95 S Ct 2574; 45 L Ed 2d 607 (1975).
In Shabaz, we noted that in Florida v Royer, 460 US 491, 497-498; 103 S Ct 1319; 75 L Ed 2d 229 (1983), Justice White, writing for a plurality of the Court, stated:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . . Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. . . . The person approached, however, need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way. ... He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Emphasis added; citations omitted.]
Determining the point when the seizure took place is crucial to a Fourth Amendment inquiry because it is at that point that the officer must have probable cause.
hi
Officer Walendzik did not violate the Fourth Amendment by merely approaching the vehicle in a public place and asking defendants if they were willing to answer some questions. While this initial encounter was justified as a mere inquiry, and thus was reasonable without a showing of probable cause, the level of intrusion upon the defendants escalated to a seizure requiring probable cause when Officer Walendzik summoned dispatch for back-up.
As stated by Justice White in Florida v Royer at 498, a person approached by an officer “may not be detained even momentarily without reasonable, objective grounds for doing so . ...” In this case, Officer Walendzik testified that when defendants answered that they had not been smoking marijuana, he “called dispatch and . . . asked for them to send me a backup.” Furthermore, Officer Walendzik testified that when Officer Bivins arrived on the scene approximately thirty seconds later, he wanted Officer Bivins to “help [him] get[] those subjects out of the vehicle.” The testimony of Officer Walendzik demonstrates that the mere inquiry had progressed to a seizure. Not only were the defendants detained for the thirty seconds it took back-up to arrive, Officer Bivins did not even have the opportunity to approach the vehicle before Officer Walendzik told him he needed help getting the suspects out of the vehicle. Therefore, it is clear that Officer Walendzik was not only calling for back-up to confirm his suspicions about the smell; rather, he was calling for back-up so that he could have assistance in ordering the defendants out of the car. This amounted to a seizure, the justification for which requires probable cause.
IV
This Court has followed federal precedent in adopting the plain view and plain touch exceptions to the warrant requirement. See, e.g., People v Champion, 452 Mich 92; 549 NW2d 849 (1996). The plain view doctrine allows police officers to seize items in plain view without first obtaining a search warrant. Id. at 101. The plain touch exception allows an object felt during an authorized patdown search to be seized without a warrant if the officer develops probable cause to believe the item felt is contraband. Id. at 105-106.
This Court, in adopting the plain feel exception in Champion stated:
We emphasize that courts applying the plain feel exception must appreciate the totality of the circumstances in the given case. [Minnesota v Dickerson, 508 US 366; 113 S Ct 2130; 124 L Ed 2d 334 (1993)] requires an in-depth examination of probable cause. We therefore caution that our holding is limited to the facts before us. . . . It is only under the totality of the circumstances before us, i.e., the defendant’s furtive behavior, his refusal to remove his hands from his sweatpants, the officer’s recognition of defendant, and his knowledge of defendant’s past involvement in drug crimes, that we find that removal of this particular pill bottle was authorized. [Id. at 112-113.]
Later, this Court repeated, “We again emphasize that it is only under the totality of the circumstances that seizure of this pill bottle is authorized.” Id. at 113.
In this case we consider the plain smell exception to the warrant requirement. In Taylor v United States, 286 US 1, 6; 52 S Ct 466; 76 L Ed 951 (1932), the United States Supreme Court was faced with the question whether smell alone provides probable cause to search the home of an individual. While we recognize that in this case the search was not conducted in a home, but rather was a search of a vehicle, the Court’s analysis is equally applicable. The Court stated,
Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees against unreasonable search. [Id. at 6.]
Later, in Johnson v United States, 333 US 10, 13; 68 S Ct 367; 92 L Ed 436 (1948), the Court reiterated that Taylor held
only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.
Because the United States Supreme Court has held that odor alone is not sufficient to authorize a search of a building without a warrant, we hold that odor alone is not sufficient probable cause to search a vehicle. Rather, as these cases indicate, odor should be but one factor to consider in a totality of the circumstances.
Using the totality of the circumstances test to determine whether there was probable cause advances a concern associated with the reliability of smell in general. As noted by the dissent, we acknowledge that there is a difference between the plain view of an object and the plain touch and smell. With sight, the item to be seized is immediately present and no further searching is required. However, the senses of touch and smell establish the possible presence of contraband, the confirmation of which requires further searching. With the sense of smell, even more caution is required than with the senses of sight and touch. When an officer sees or feels contraband, he knows it is present and he can tell who has possession of that contraband. The same is not true with the sense of smell. The smell of smoke, whether from tobacco or from marijuana, can linger and can attach to someone coming into a vehicle, regardless of whether that person ever had possession of it, or whether it was smoked in that vehicle.
It is precisely for this reason that the Court should be even more cautious when basing probable cause on a smell. By requiring the officer to use smell as one factor in a totality of circumstances, it protects the rights of a defendant against unreasonable searches and seizures. Therefore, on the basis of both federal and state law, officers may not seize a person on the basis of odor alone.
We hold that the smell of marijuana is but one factor to consider in the totality of the circumstances in determining whether probable cause exists to conduct a search of a parked vehicle without a warrant.
v
Finally, the preliminary examination in this case was never completed because the trial judge dis missed the charges against the defendants. Typically, when reviewing a decision from a preliminary examination, the preliminary examination has been fully completed before any decision is appealed. However, it is clear from the record that the preliminary examination in this case was ended prematurely when the trial judge held that he was bound by Hilber and Chemowas. Because we have expressly declined to adopt the reasoning from Hilber and Chemowas, we now remand the case to the trial court for continuation of the preliminary examination. It is up to the trial judge to make the determination whether there was probable cause to seize the defendants at the time Officer Waiendzik called for back-up. In so doing, and in accordance with United States Supreme Court case law, the trial judge should consider the special training or experience of the officer regarding his ability to identify the odor of marijuana in determining the weight to give his testimony. Furthermore, probable cause must be based on a totality of the circumstances, in which odor is but one factor to consider.
Because we sit as a reviewing court only, we cannot make the initial determination whether there was probable cause in this case. “[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. A trial judge views the facts of a particular case in light of the distinctive features and events of the community . . . .” Ornelas-Ledesma v United States, 517 US 690, _; 116 S Ct 1657; 134 L Ed 2d 911, 920-921 (1996). We should not make a determination that the decision of the trial judge was clearly erroneous until (1) he has heard all the evidence and completed the preliminary examination, and (2) he has made his ruling.
Remanded for further proceedings.
Mallett, C.J., and Brickley and Kelly, JJ., concurred with Cavanagh, J.
Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
Unpublished order, entered April 24, 1995 (Docket No. 181651).
The Fourth Amendment of the federal constitution is applicable to the states through the Fourteenth Amendment. Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
The Michigan Constitution also prohibits unreasonable searches and seizures. Const 1963, art 1, § 11. However, the Michigan Constitution does not provide more protection than the Fourteenth Amendment under the circumstances of this case. People v Faucett, 442 Mich 153, 158; 499 NW2d 764 (1993).
In the case of a vehicle, because of the reduced expectation of privacy and the ready mobility of the vehicle, a search without a warrant has been found to be reasonable. The consequence of that reduced privacy has been to allow a search of the vehicle without a warrant, but only if based upon probable cause. The United States Supreme Court has never held that there should be two standards for probable cause: one lesser standard for vehicles and one greater standard for homes and buildings. In fact, the Court refers to only one standard for probable cause.
In California v Carney, supra at 392-394, the Court stated:
[T]he exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met. . . . Under the vehicle exception to the warrant requirement, “[only] the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize.” [Citation omitted; bracketed words supplied.]
Furthermore, in Almeida-Sanchez v United States, 413 US 266, 269; 93 S Ct 2535; 37 L Ed 2d 596 (1973), the Court stated, “Automobile or no automobile, there must be probable cause for the search.”
Finally, in South Dakota v Opperman, 428 US 364, 386; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), Justice Marshall, in his dissent, recognized the principle that there is only one standard for determining probable cause. He stated:
The Court correctly observes that some prior cases have drawn the distinction between automobiles and homes or offices in Fourth Amendment cases; but even as the Court’s discussion makes clear, the reasons for distinction in those cases are not present here. Thus, Chambers v Maroney, 399 US 42 (1970), and Carroll v United States, 267 US 132 (1925), permitted certain probable-cause searches to be carried out without warrants in view of the exigencies created by the mobility of automobiles, but both decisions reaffirmed that the standard of probable cause necessary to authorize such a search was no less than the standard applicable to search of a home or office. Chambers at 51; Carroll at 155-156.
Therefore, while a person in a vehicle may have a diminished expectation of privacy, the fact remains that a search of the vehicle without a warrant still must be based on probable cause, the same probable cause as is needed to obtain a warrant to search a home.
We note that the trial judge based his determination in this case on our decision in Hilber and the decision of the Court of Appeals in Chemowas, which addressed the distinction between the odor of burned and unburned marijuana. However, Hilber did not garner a majority of this Court. Therefore, we expressly decline to adopt the distinction between unbumed and burned marijuana as the basis for our decision today. | [
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Riley, J.
In this appeal, we address three issues: (1) whether Michigan recognizes a cause of action for the loss of an opportunity to avoid physical harm less than death, (2) whether the trial court abused its discretion in determining that plaintiffs complaint did not sufficiently plead á claim for pain and suffering from her pulmonary injury, and (3) whether the trial court abused its discretion in denying plaintiffs motion to amend her complaint to add a claim for pain and suffering from pulmonary injury. We hold that Michigan does not recognize a causé of action for the loss of an opportunity to avoid physical harm less than death. We also hold that the trial court did not abuse its discretion in ruling that plaintiffs complaint was inadequately specific and in refusing to allow plaintiff to amend her complaint. Accordingly, we reverse the Court of Appeals decision.
FACTS AND PROCEEDINGS
In early October 1990, plaintiff Kimberly Weymers, who was twenty years old, became ill with coughing, fever, nausea, aching, and chest congestion. After her condition did not improve for more than a week, she went to defendant Walled Lake Medical Center where she was initially examined by a physician’s assistant. The physician’s assistant concluded from plaintiff’s symptoms that she suffered from a respiratory infection and gave her antibiotics. After another week, plaintiff returned to the medical center because her symptoms intensified. The physician’s assistant diag nosed plaintiff with pneumonia and sent her home with a stronger prescription of antibiotics. On October 23, 1990, plaintiff visited the medical center a third time because her condition had not improved. A blood sample indicated that plaintiff suffered from severe anemia. Defendant Dr. Frank Fenton, the owner of the medical center, arranged for plaintiff to be admitted to defendant St. Joseph’s Hospital in Pontiac.
On the evening of October 23, 1990, plaintiff was admitted to St. Joseph’s intensive care unit and was given blood transfusions to combat the anemia. On October 24, 1990, defendant Dr. Rheka Khera examined plaintiff and suspected the possibility of a kidney problem and asked defendant Dr. Gregorio Ferrer, a nephrologist, to examine her. Dr. Ferrer examined her that day and concluded that she could have a rare disease, Goodpasture’s syndrome. He began an immunosuppressive therapy immediately, and scheduled a kidney biopsy for October 25, 1990. Plaintiff initially responded to the treatment, but soon after her condition began to deteriorate. Plaintiffs biopsy was postponed until October 26, 1990, and she was placed on a respirator.
On October 26, 1990, plaintiff was transferred to William Beaumont Hospital in Royal Oak and placed under the care of Dr. Isam Salah. At the time, plaintiff had only ten to fifteen percent of her kidney functions. The biopsy was delayed for another three days. The hospital performed a plasma exchange, but it failed to save plaintiffs kidney functioning. Plaintiff was placed on dialysis after her kidneys totally failed and eventually underwent a kidney transplant.
On August 16, 1991, plaintiff filed this medical malpractice suit against defendants Drs. Khera, Ferrer, and Fenton, and against Walled Lake Medical Center and St. Joseph Mercy Hospital. During discovery, plaintiff presented an affidavit by expert witness Dr. Eric Neilson, Chief of the Renal Division of the University of Pennsylvania Hospital, who testified that if defendants had given plaintiff proper care she would have had a thirty to forty percent chance of retaining the functioning of her kidneys. Dr. Neilson noted that plaintiffs life expectancy had been “significantly shortened” as a consequence of the loss of her kidneys, and that she would ultimately suffer a premature death. After discovery was closed, St. Joseph’s Hospital moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff had failed to demonstrate that the alleged negligence caused the loss of her kidneys. The other defendants joined the motion. In response to defendants’ motion, plaintiff asserted that she could recover for her kidney damage even though there was less than a fifty percent chance that defendants’ negligence caused the damage on the basis of the lost opportunity doctrine recognized in Falcon v Memorial Hosp, 436 Mich 443; 462 NW2d 44 (1990). Plaintiff also argued that her damages were not limited to the loss of her kidneys, but also included pain and suffering from her pulmonary injury. Defendants responded that plaintiff had failed to allege damages from her pulmonary injury.
The trial court agreed with defendants and granted their motion for summary disposition. The trial court noted that plaintiff had failed to show that it was more probable than not that her kidney failure was caused by defendants’ alleged negligence, and refused to extend the lost opportunity doctrine recognized in Falcon, a wrongful death case, to situations in which the injury did not result in death. The trial court further held that plaintiff’s claim of pulmonary injury was not sufficiently pleaded in her complaint. Plaintiff subsequently asked the trial court to allow her to amend her complaint to specifically allege pain and suffering from her pulmonary condition. The trial court denied this request.
Plaintiff appealed in the Court of Appeals, which reversed the decision of the trial court, holding that the lost opportunity doctrine applied to physical injury less than death. 210 Mich App 231, 236-237; 533 NW2d 334 (1995). The Court of Appeals also held that the trial court abused its discretion in not allowing plaintiff to amend her complaint because defendants were on notice of plaintiffs claim of pulmonary injury and therefore would not have been “unduly prejudiced” by the amendment. Id. at 241.
Defendant Drs. Khera and Ferrer appealed, and this Court granted leave to appeal on May 22, 1996.
I. LOST OPPORTUNITY DOCTRINE
A
Defendants brought their summary disposition motion pursuant to MCR 2.116(C)(10). Under that subsection, summary disposition is proper when “[e]xcfept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” In other words, the “court must be satisfied . . . that ‘it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.’ ” Stevens v McLouth Steel Products Corp, 433 Mich 365, 370; 446 NW2d 95 (1989), quoting Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). In making that determination, the court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed by the parties in the light most favorable to the party opposing the motion. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). We review summary disposition decisions de novo. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996).
B
We address whether the Court of Appeals erred in recognizing a cause of action for the loss of an opportunity to avoid physical harm less than death.
Under Michigan medical malpractice law, as part of its prima facie case, a plaintiff must prove that the defendant’s negligence proximately caused the plaintiff’s injuries. MCL 600.2912a; MSA 27A.2912(1); Locke v Pachtman, 446 Mich 216, 222; 521 NW2d 786 (1994). To establish proximate cause, the plaintiff must prove the existence of both cause in fact and legal cause. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). To establish cause in fact,
the plaintiff must present substantial evidence from which a jury may conclude that more likely than not)[ ] but for the defendant’s conduct, the plaintiff’s injuries would not have occurred.
* * *
“The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” [Id. at 164-165, quoting Prosser & Keeton, Torts (5th ed), § 41, p 269.][ ]
To establish legal cause, the plaintiff must show that it was foreseeable that the defendant’s conduct “may create a risk of harm to the victim, and . . . [that] the result of that conduct and intervening causes were foreseeable.” Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977).
The antithesis of proximate cause is the doctrine of lost opportunity. The lost opportunity doctrine allows a plaintiff to recover when the defendant’s negligence possibly, i.e., a probability of fifty percent or less, caused the plaintiff’s injury. See Reisig, The loss of a chance theory in medical malpractice cases: An overview, 13 Am J Trial Advocacy 1163 (1990). In Falcon, supra at 469-470 (Levin, J., lead opinion), 472-473 (Boyle, J., concurring), this Court adopted the lost opportunity doctrine in wrongful death cases. Our Legislature immediately rejected Falcon and the lost opportunity doctrine. MCL 600.2912a(2); MSA 27A.2912(1)(2). Accordingly, Falcon only applies to causes of action that arose before October 1, 1993. See 1993 PA 78, subsection 4(1) (providing the effective date of the amendment). We do not address the issue raised in Falcon because it is not now before this Court. However, for the reasons that follow, we refuse to extend Falcon. Specifically, we hold that no cause of action exists for the loss of an opportunity to avoid physical harm less than death.
C
There are three alternative approaches to the lost opportunity doctrine: (1) the pure lost chance approach, (2) the proportional approach, and (3) the substantial possibility approach. Each approach lowers the standard of causation, with the effect that a plaintiff is allowed to recover without establishing cause in fact.
The pure lost chance approach allows a plaintiff to recover for his injury even 'though it was more likely than not that he would have suffered the injury if the defendant had not been negligent. See Thompson v Sun City Community Hosp, 141 Ariz 597; 688 P2d 605 (1984). The plaintiff only has to show that the defendant’s negligence decreased the plaintiff’s chance, no matter how slight, of avoiding the injury. Id. If the plaintiff makes such a showing, he receives full damages. Id.
The proportional approach is identical to the pure lost chance approach; however, the plaintiff’s recovery is limited to the percent of chance lost multiplied by the total amount of damages that would ordinarily be recovered in that action. McKellips v St Francis Hosp, Inc, 741 P2d 467, 476 (Okla, 1987). For example,
if a patient had forty percent chance of recovering from breast cancer and a negligent physician’s misdiagnosis results in her chances dropping to ten percent, then the plaintiff can recover thirty percent of her total death-related injuries. Thus, if her damages totaled $100,000, the plaintiff could recover $30,000. [Moore, South Carolina rejects the lost-chance doctrine, 48 SC L R 201, 202 (1996).]
The last approach, the substantial possibility-approach, was adopted by this Court in Falcon for wrongful death cases. It also is a variation of the pure lost chance approach. Under this approach, the plaintiff must show that there is a substantial possibility that the defendant’s negligence caused his injury. See Falcon, supra at 469. It is unclear what constitutes a “substantial possibility.” See id. at 470 (holding that a 37.5 percent chance of survival was substantial, but refusing to state what constitutes a threshold showing of substantial). It is clear, however, that it does not have to be more than fifty percent. Id. Thus, the substantial possibility approach is identical to the other approaches to the extent that each approach allows a plaintiff to recover for his injury even though it was more likely than not that he would have suffered the injury if the defendant had not been negligent.
d
Turning to the case now before this Court, the Court of Appeals, relying on the substantial possibility approach, extended the lost opportunity doctrine to the loss of a substantial opportunity to avoid any physical harm. The Court justified its decision on the often proffered reason of deterrence:
If the lost opportunity doctrine is limited to cases only involving death, potentially flagrant examples of malpractice could go uncompensated in cases in which the same negligent failure to diagnose or treat results in a lost opportunity to avoid egregious harm, i.e., paralysis or coma. Thus, the deterrent and loss-allocation functions of tort law would be undermined if defendants could escape liability for the effects of negligent conduct that cause demonstrable losses. [210 Mich App 237.]
We acknowledge that the deterrent and loss-allocation functions of tort law are important. How ever, we reject scrapping causation (the bedrock of our tort law) in negligence cases where the injury alleged by the plaintiff is something less than death, for the lost opportunity doctrine’s deterrent effect. As the Texas Supreme Court succinctly stated:
[W]e reject the notion that the enhanced deterrence of the loss of chance approach might be so valuable as to justify scrapping our traditional concepts of causation. If deterrence were the sole value to be served by tort law, we could dispense with the notion of causation altogether and award damages on the basis of negligence alone. [Kramer v Lewisville Memorial Hosp, 858 SW2d 397, 406 (Tex, 1993).]
Furthermore, the South Carolina Supreme Court reflects our sentiments in this regard:
We are persuaded that “the loss of chance doctrine is fundamentally at odds with the requisite degree of medical certitude necessary to establish a causal link between the injury of a patient and the tortious conduct of a physician.” Legal responsibility in this approach is in reality assigned based on the mere possibility that a tortfeasor’s negligence was a cause of the ultimate harm. This formula is contrary to the most basic standards of proof which undergird the tort system. [Jones v Owings, 318 SC 72, 77; 456 SE2d 371 (1995) (emphasis in original, citations omitted).]
Accordingly, because we refuse to discard causation in negligence actions of this kind, we do not recognize a cause of action for the loss of an opportunity to avoid physical harm less than death. Therefore, the Court of Appeals recognition of such a cause of action was in error and is reversed.
H. SPECIFICITY AND AMENDMENT OF PLEADING
A
Decisions concerning the meaning and scope of pleading, and decisions granting or denying motions to amend pleadings, are within the sound discretion of the trial court and reversal is only appropriate when the trial court abuses that discretion. Dacon v Transue, 441 Mich 315, 328; 490 NW2d 369 (1992); Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 658; 213 NW2d 134 (1973).
B
We first address whether the trial court abused its discretion in holding that plaintiffs complaint did not sufficiently plead a claim for pain and suffering from her pulmonary injury.
MCR 2.111(B)(1) requires that a complaint be specific enough to reasonably inform the adverse party of the nature of the claims against him. This Court, in Dacon, supra at 329, explained that
[t]Ms rule is designed to avoid two opposite, but equivalent, evils. At one extreme lies the straightjacket of ancient forms of action. Courts would summarily dismiss suits when plaintiffs could not fit the facts into these abstract conceptual packages. At the other extreme lies ambiguous and uninformative pleading. Leaving a defendant to guess upon what grounds plaintiff believes recovery is justified violates basic notions of fair play and substantial justice. Extreme formalism and extreme ambiguity interfere equivalently with the ability of the judicial system to resolve a dispute on the merits. The former leads to dismissal of potentially meritorious claims while the latter undermines a defendant’s opportunity to present a defense. . . . Neither is acceptable.
In medical malpractice actions, a plaintiff must allege, with reasonable definiteness and certainty, every fact necessary to constitute a cause of action. Dacon, supra at 332-333; Simonelli v Cassidy, 336 Mich 635, 644; 59 NW2d 28 (1953). To establish medical malpractice, a plaintiff must establish the following elements: (1) the applicable standard of care, (2) breach of that standard, (3) injury, and (4) proximate causation between the alleged breach and the injury. Locke, supra at 222.
c
Turning to the case before this Court, plaintiff argues that the trial court abused its discretion in determining that her complaint did not sufficiently plead a claim for pain and suffering from her pulmonary injury. We disagree and hold that the trial court did not abuse its discretion.
Plaintiffs first amended complaint was not specific enough to reasonably inform defendants of a claim for pulmonary injury. Paragraph 29, the section of plaintiffs complaint addressing the proximate cause and injury elements of plaintiff’s malpractice claim, did not mention pulmonary injury. Rather, it only addressed the injury of plaintiff’s kidneys:
As a direct and proximate result of the aforementioned acts of negligence and malpractice as described in paragraphs 26 and 28, Plaintiff, Kimberly Weymers, has suffered and continues to suffer severe and grievous injuries and damages, including, but not limited to, the following:
A. Significant medical expenses, past, present and future.
B. Loss of earnings and earning capacity.
C. Severe physical and mental pain and suffering, anxiety, emotional anguish, embarrassment, humiliation and loss of natural enjoyments of life.
D. Permanent loss of all renalp[ ] function requiring periodic and frequent dialysis.[ ] [Emphasis added.]
We are not persuaded by plaintiffs argument that the trial court abused its discretion by refusing to recognize that plaintiffs general allegation of pain and suffering encompassed her claim for pulmonary injury. A plaintiff in a malpractice action cannot make a general allegation of pain and suffering and expect the defendant to determine without any guidance from the plaintiff which injury formed the basis of the pain and suffering. See Dacon, supra at 330 (concluding that pleadings that “alleg[e] everything . . . allege [] nothing [and] . . . are not proper under MCR 2.111”). Moreover, unlike plaintiffs claim for pulmonary injury, defendants were on notice of plaintiffs claim for pain and suffering resulting from her kidney failure because plaintiff specifically alleged in paragraph 29 of her complaint that she suffered injury to her kidneys.
The only arguable mention of pulmonary injury in plaintiffs complaint was in the sections addressing defendants Dr. Khera’s and Walled Lake Medical Center’s alleged breach of the standard of care:
Failure [of Dr. Khera] to obtain appropriate consultations in a timely manner, including a nephrology consult and a pulmonary consult. [¶ 32.][ ]
Failure [of Walled Lake Medical Center] to refer Kimberly Weymers for appropriate consultation in light of her presenting [sic] history, signs and symptoms, including a consultation with an internist, pulmonologist or nephrologist. [¶ 28.][ ]
We conclude that the trial court did not abuse its discretion in ruling that this hint of pulmonary injury was insufficient to put defendants on notice. Thus, the trial court’s determination that plaintiff’s claim for pulmonary injury was not sufficiently pleaded' was not an abuse of discretion.
D
We next address whether the trial court abused its discretion in refusing to allow plaintiff to amend her complaint to include a claim for pain and suffering from her pulmonary injury.
If a court grants summary disposition pursuant to MCR 2.116(C)(8), (9), or (10), the court must give the parties an opportunity to amend their pleadings pursuant to MCR 2.118, unless the amendment would be futile. MCR 2.116(I)(5). MCR 2.118(A)(2) provides that leave to amend a pleading “shall be freely given when justice so requires.” Under subrule A(3), the court can order the amending party to compensate the opposing party for the additional expense caused by the late amendment, including reasonable attorney fees.
A motion to amend ordinarily should be granted, and should be denied only for the following particularized reasons:
“[1] undue delay, [2] bad faith or dilatory motive on the part of the movant, [3] repeated failure to cure deficiencies by amendments previously allowed, [4] undue prejudice to the opposing party by virtue of allowance of the amendment, [and 5] futility . . . .” [Fyke, supra at 656.]
If a trial court denies a motion to amend, it should specifically state on the record the reasons for its decision. Id. at 656-657.
Delay, alone, does not warrant denial of a motion to amend. Fyke, supra at 663-664. However, a court may deny a motion to amend if the delay was in bad faith or if the opposing party suffered actual prejudice as a result. Id. “Prejudice” in this context does not mean that the allowance of the proffered amendment may cause the opposing party to ultimately lose on the merits. Id. at 657. Rather, “prejudice” exists if the amendment would prevent the opposing party from receiving a fair trial, if for example, the opposing party would not be able to properly contest the matter raised in the amendment because important witnesses have died or necessary evidence has been destroyed or lost. Id. at 663.
In Fyke, we suggested that there may be some cases in which the delay is so long and the amendment so substantial that the opposing party would be denied a fair trial by the delay, and therefore be prejudiced:
The litigation may proceed to a point where the opposing party cannot reasonably be expected to defend against the amendment; this is an especially pertinent factor on the eve of, during, or after trial. [Id.]
We reaffirm this principle, but clarify its application. We hold that a trial court may find prejudice when the moving party seeks to add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery is closed, just before trial, and the opposing party shows that he did not have reasonable notice, from any source, that the moving party would rely on the new claim or theory at trial. We recognize that parties ought to be afforded great latitude in amending their pleading before trial, however, that interest must be weighed against the parties’ and the public’s interest in the speedy resolution of disputes. As Judge John L. Coffey of the United States Court of Appeals for the Seventh Circuit explained:
While Fed R Civ P 15[ ) favors amendments when required by justice, it is not a license for carelessness or gamesmanship. Parties to litigation have an interest in speedy resolution of their disputes without undue expense. Substantive amendments to the complaint just before trial are not to be countenanced and only serve to defeat these interests. The district court must consider the harm when deciding whether to grant leave.
Defense of a new claim obviously will require additional rounds of discovery, in all probability interview of new witnesses, gathering of further evidence, and the identification of appropriate legal arguments. All this necessarily takes time. The parties must have an opportunity for preparation if trial is to be meaningful and clear. Some delay of trial therefore is inevitable — a natural consequence of allowing claims to be brought at all. In this sense, delay alone is not a sufficient basis for refusing an amendment. On the other hand, amendments near the time set for trial may require postponement when the same allegations made earlier would have afforded ample time to prepare without delay. Plaintiff is not entitled to impede justice by imposing even reasonable preparation intervals seriatim. Cf. Ins v Abudu, [485 US 94, 95] 108 S Ct 904, 913; 99 L Ed 2d 90 (1988) (“strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases”). Whether it results from bad faith or mere absentmindedness, a district judge may act to deter such artificial protraction of litigation, and its costs to all concerned, by denying the amendment. Zenith Radio Corp [v Hazeltine Research, Inc], 401 US [321], 330 [91 S Ct 795; 28 L Ed 2d 77 (1971)]; Bohen [v City of East Chicago, Ind], 799 F2d [1180], 1184-1185 [(CA 7, 1986)]. [Feldman v Allegheny Int'l, Inc, 850 F2d 1217, 1225-1226 (CA 7, 1988).]
The United States Court of Appeals for the Sixth Circuit further explained in Priddy v Edelman, 883 F2d 438, 446-447 (CA 6, 1989):
A party is not entitled to wait until the discovery cutoff date has passed and a motion for summary judgment has been filed on the basis of claims asserted in the original complaint before introducing entirely different legal theories in an amended complaint. ... In complex cases such as this one, ... it is particularly likely that drastic amendments on the eve of trial will prejudice the defendants. . . . Putting the defendants “through the time and expense of continued litigation on a new theory, with the possibility of additional discovery, would be manifestly unfair and unduly prejudicial.” [Citations omitted.][ ]
E
Turning to the case now before this Court, plaintiff attempted to amend paragraph 29 of her complaint to add the following subparagraph:
Physical and mental pain and suffering resulting from the aggravation of the pulmonary pathology.
Defendants opposed the motion, asserting that they would be prejudiced by the amendment because plaintiff was introducing her claim for pulmonary injury for the first time just before trial was scheduled to begin. The trial court denied plaintiffs motion, focusing on the length of the delay and on defendants’ lack of notice of plaintiff’s new claim:
The Court is satisfied that this is a 1991 case. The Defendants did not have notice that the general damage element of pain and suffering was specific to the damages arising out of pulmonary pathology. Defendants prepared for trial and the Defendants prepared for mediation, the Court is satisfied, due to the loss of renal function. And despite the Plaintiffs contentions, the Court’s [sic] satisfied that the Motion for Amendment of the Complaint, Second Amended Complaint, should be denied, and I do so.
The Court of Appeals reversed the decision of the trial court, holding that it abused its discretion in denying plaintiffs motion to amend because the evidence established that defendants “had notice of potential pulmonary complications and thus would not have been unduly prejudiced . . . 210 Mich App 241. In doing so, the Court of Appeals rejected defendants’ argument that plaintiff’s amendment sought to add a new theory to the case. Id. at 242.
Contrary to the Court of Appeals assertion, we hold that plaintiff’s amendment did seek to introduce a new theory or claim into the case and that defendants did not have reasonable notice that plaintiff would rely on that new theory at trial.
Plaintiff argues that her amendment sought to change the type of damages sought, not add a different claim or theory to the case, and that, therefore, on the basis of Sherrard v Stevens, 176 Mich App 650, 654; 440 NW2d 2 (1988), she was entitled to the amendment. In Sherrard, supra at 655, the Court of Appeals held:
While we note that the amendment came shortly before trial, we also note that the amendment did not raise new factual allegations, but merely claimed new types of damages arising from the same set of factual allegations. Accordingly, we do not believe that the trial court abused its discretion in granting the motion to amend the complaint.
Plaintiff’s argument is unpersuasive because her case is distinguishable from Sherrard. In Sherrard, the plaintiffs sought to amend their legal malpractice complaint to add a prayer for exemplary damages. Plaintiff Weymers, on the other hand, sought to amend her complaint to change the type of injury she claimed was proximately caused by defendants’ negli gence. Therefore, plaintiffs amendment is more appropriately characterized as raising a new claim or theory, not a new type of damages.
Plaintiffs argument that defendants had reasonable notice of her pulmonary claim is also unpersuasive. Although deposition testimony, medical records, and the mediation summary suggested that defendants had knowledge that Goodpasture’s syndrome causes pulmonary injury and that plaintiff suffered such injury, defendants had no notice that plaintiff was intending to assert a claim for pulmonary injury at trial. This distinction is significant. If defendants had no notice that plaintiff was intending to assert an independent claim for pulmonary injury, the brief mention of pulmonary injury during the discovery process cannot reasonably be said to automatically make its later appearance as a claim nonprejudicial against defendants. Given the wide latitude of the discovery rules, see MCR 2.302(B), as far as defendants were concerned, the sporadic mention of pulmonary injury during discovery could have been simply fortuitous.
Plaintiff also relies on Terhaar v Hoekwater, 182 Mich App 747, 752; 452 NW2d 905 (1990), in support of her contention that defendants had reasonable notice of her claim for pulmonary injury. Plaintiff’s reliance on Terhaar is misguided because in Terhaar, unlike the case now before us, the plaintiff not only investigated and pursued her new theory during dis covery, she also notified the defendant during discovery that she would pursue that theory at trial.
Therefore, we conclude that the trial court did not abuse its discretion in denying plaintiffs motion to amend because the amendment sought to introduce a new claim just before trial, after discovery had closed, and defendants demonstrated that they did not have knowledge that plaintiff was intending to rely on the new claim at trial.
CONCLUSION
We conclude that Michigan does not recognize a cause of action for the loss of an opportunity to avoid physical harm less than death. Thus, the trial court properly granted defendants’ summary disposition motion. We further conclude that the trial court did not abuse its discretion in determining that plaintiff did not sufficiently plead a claim for pain and suffering from her pulmonary injury. The trial court also did not abuse its discretion in denying plaintiff’s motion to amend her complaint to add a new claim for pulmonary injury. Accordingly, we reverse the Court of Appeals decision.
Mallett, C.J., and Brickley and Weaver, JJ., concurred with Riley, J.
Boyle, J., concurred only in the result.
For purposes of this appeal, we assume plaintiff suffered pulmonary injury.
Nephrology is “the branch of medical science that deals with the kidney.” Random House Webster’s College Dictionary.
Goodpasture’s syndrome is
[t]he condition of having glomerulonephritis (a type of kidney disease, but more under glomerulonephritis) associated with hemoptysis (the spitting up of blood). It is generally a fatal disease, and at autopsy the lungs are found to show hemosiderosis (abnormal deposits of iron) or hemorrhage. [2 Schmidt’s Attorney's Dictionary of Medicine, p G-120.]
Immunosuppressive therapy is
[t]he treatment of certain diseases (as multiple myeloma, chronic nephritis, autoimmune diseases, allergy) by medicines which suppress the immunity response of the body [Id., n 3 supra, p 1-41.]
At the time, St. Joseph’s Hospital was not equipped to provide a plasma exchange.
The statements from Dr. Neilson’s September 21, 1993, affidavit were only presented to the court in a motion for reconsideration after the trial court had granted summary disposition in favor of defendants.
Before the hearing on the motion, defendants St. Joseph’s Hospital, Walled Lake Medical Center, and Dr. Fenton settled their case with Weymers for approximately $300,000.
Plaintiff attached an affidavit by Dr. Eric Neilson which stated, in relevant part:
3. Additionally, I am of the opinion that while a patient at St. Joseph Hospital, Kimberly Weymers suffered extensive pulmonary damage.
4. Specifically, I am of the opinion that the failure of the staff at St. Joseph Hospital to arrange for plasmapheresis therapy [plasma exchange], in a timely manner, resulted in the extensive pulmonary hemorrhage and deterioration.
5. Kimberly Weymers’ pulmonary deterioration resulted in her placement on a ventilator for over two weeks, and she required extensive therapy thereafter.
The Court of Appeals did not address the issue whether plaintiff’s complaint sufficiently pleaded a claim for pain and suffering from her pulmonary injury because it found that the trial court abused its discretion in denying plaintiff’s motion to amend her complaint. See id. at 240, n 6.
451 Mich 898. On October 30, 1996, this Court dismissed Ferrer’s appeal for failure to pursue.
The phrase “more likely than not” means a probability more than fifty percent. Falcon, supra at 450, n 6.
See also Jordon v Whiting Corp, 396 Mich 145, 151; 240 NW2d 468 (1976) (“[t]he mere possibility that a defendant’s negligence may have been the cause, either theoretical or conjectural, of an accident is not sufficient to establish a causal link between the two”); Glinski v Szylling, 358 Mich 182, 201-202; 99 NW2d 637 (1959) (“[a]'case cannot go to a jury supported merely by sheer speculation that something might have been a cause, or, going one step further, that there was a possibility that something was the cause”); Daigneau v Young, 349 Mich 632, 636; 85 NW2d 88 (1957) (“ ‘[t]here must be more than a mere possibility that unreasonable conduct of the defendant caused the injury’ ”).
Stated another way, the lost opportunity doctrine permits a plaintiff to maintain an action for malpractice when, the malpractice denied the plaintiff an opportunity to avoid the injury, even where the opportunity was fifty percent or less.
Subsection 2912a(2) provides:
In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.
Plaintiff’s argument that her case falls within Falcon because defendants’ negligence will likely lead to a premature death is unpersuasive because plaintiff’s claim was for injury to her kidneys, it was not for wrongful death.
Although the case before us is a medical malpractice action, we note that our holding applies to all negligence actions. However, our decision today does not affect the situation where the inextricable combination of joint tortfeasors combines to cause harm in a manner where individual responsibility cannot be fixed. Thus, where several factors combine to produce an injury, and where any one of them, operating alone, would have been sufficient to cause the harm, a plaintiff may establish factual causation by showing that the defendant’s actions, more likely than not, were a “substantial factor” in producing a plaintiff’s injuries. Brisboy v Fibreboard Corp, 429 Mich 540, 547; 418 NW2d 650 (1988). See also Prosser & Keeton, supra, § 41, p 266. These situations are distinguishable from the lost opportunity doctrine because liability is fastened only after a judicial determination that the plaintiff’s injuries were caused by someone, but proof of that responsibility is impossible. In lost opportunity cases, the preponderance of the evidence suggests that no known person was at fault.
Only five states follow this extreme approach. See Moore, South Carolina rejects the lost chance doctrine, 48 SC L R 201, 207 (1996), citing Thompson, supra; Gooding v Univ Hosp Bldg, Inc, 445 So 2d 1015 (Fla, 1984); Hastings v Baton Rouge Gen’l Hosp, 498 So 2d 713 (La, 1986); Hamil v Bashline, 481 Pa 256; 392 A2d 1280 (1978); Thornton v CAMC, 172 W Va 360; 305 SE2d 316 (1983).
Furthermore, this Court in Falcon, supra at 471, combined the substantial possibility approach with the proportional approach and reduced the damage award to reflect the percentage of chance lost.
In Falcon, supra at 469, this Court defined the injury as the loss of opportunity to avoid the harm, i.e., the death, rather than the harm itself. Redefining the injury, however, does not solve the causation problem:
Whether the court lowers the standard of causation or redefines the injury as a lost chance, the result is the same in that a plaintiff receives compensation despite the greater probability that he or she would have suffered the injury even if the physician had used due care. [Moore, Lost chance doctrine, n 17 supra at 206-207.]
Professor Joseph H. King, Jr., championed the deterrence argument for the lost opportunity doctrine in his article, Causation, valuation, and chance in personal injury torts involving preexisting conditions and future consequences, 90 Yale L J 1353, 1377 (1981):
The all-or-nothing approach to loss of a chance also subverts the deterrence objectives of tort law by denying recovery for the effects of conduct that causes statistically demonstrable losses. By placing such losses outside tort law, the all-or-nothing approach distorts the loss-assigning role of that law. Over the universe of such cases, losses of chances of avoiding both the adverse effects of a preexisting condition and the occurrence of future consequences of an injury represent actual losses. We can be statistically certain, for example, that a number of patients with probably (but not necessarily) fatal preexisting conditions would have achieved the hoped-for cure in the absence of the tortious conduct, even if none individually had a better-than-even chance of doing so. A failure to allocate the costs of these losses to their tortious sources undermines the whole range of functions served by the causation-valuation process and strikes at the integrity of the torts system of loss allocation.
Renal is defined as “of or pertaining to the kidneys or the surrounding regions.” Random House Dictionary, n 2 supra.
Furthermore, the first section of the complaint, which set forth the general allegations with regard to all defendants, indicated that the asserted injury was limited to plaintiff’s kidneys:
19. Defendant, Dr. Rheka Khera’s admitting differential diagnosis included Goodpastures [sic] Syndrome.
20. On or about October 25, 1990, Defendant, Dr. Rheka Khera requested a consultation from Defendant, Dr. Gregorio Ferrer, a nephrologist, and the consultation was performed on that date.
21. Defendant, Dr. Gregorio Ferrer, also reached the impression of Goodpastures Syndrome, ordered the administration of steroid therapy and planned to perform a kidney biopsy the next day.
22. On October 26, 1990, before the kidney biopsy was performed, Kimberly Weymers was transferred to Beaumont Hospital in Royal Oak where she was admitted.
23. Plaintiff, Kimberly Weymers, remained hospitalized at Beaumont Hospital until November 20, 1990. During her confinement, she was diagnosed as having and was treated for Goodpastures Syndrome.
Similarly, the section of the complaint setting forth the applicable standards of care did not mention pulmonary medicine. The standards of care were as follows:
(1) Walled Lake Medical Center had the duty to provide plaintiff with the “standards of care applicable to physicians specializing in the field of family practice” (¶¶ 25, 27);
(2) Khera had the duty to provide plaintiff with the “standards of practice applicable to physicians who have specialized in the field of internal medicine” (¶ 31); and
(3) Ferrer had the duty to provide plaintiff with the “standards of practice applicable to physicians specializing in the field of internal medicine and nephrology” (¶ 35).
The significance of this allegation was diluted, however, because the next paragraph stated that plaintiff suffered the injuries mentioned in paragraph 29 of the complaint (which discusses kidney damage) as a proximate cause of the breach. See ¶ 33.
We note that the paragraph discussing defendant Dr. Ferrer’s alleged breach of duty suggests that the injury suffered was kidney failure:
Failure to promptly and timely perform a kidney biopsy, resulting in a delay in the proper management of Plaintiff’s condition. [¶ 36.]
For similar reasons, plaintiff’s argument that her claim for pulmonary injury was sufficiently alleged because the nature of Goodpasture’s syndrome is that it results in pulmonary hemorrhage and kidney damage is unpersuasive. It should not need repeating that a complaint alleging malpractice must state with reasonable specificity and certainty the facts necessary to establish the cause of action. See Dacon, supra at 332-333.
We note the distinction between the strict requirements for amendment at trial of MCR 2.118(C)(2) and the free amendment rule of MCR 2.118(A)(2). However, MCR 2.118(A)(2) is not limitless. Under MCR 2.118(A)(2), the proposed amendment should be granted unless the party opposing the amendment shows that one of the five particularized reasons specified in Fyke, supra at 656, which includes prejudice, exists.
MCR 2.118 is based on GCR 1963, 118. GCR 1963, 118 “is an adoption of Federal Rule 15.” LaBar v Cooper, 376 Mich 401, 405; 137 NW2d 136 (1965). Further, this Court has been guided by federal precedent in this area See Fyke, supra at 656. Rule 15(a) of the Federal Rules of Civil Procedure provides, in relevant part:
[A] party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Furthermore, federal courts are permitted to deny a motion to amend a pleading only if one of the five particularized reasons stated in Fyke, supra at 656, exists. See Foman v Davis, 371 US 178, 182; 83 S Ct 227; 9 L Ed 2d 222 (1962):
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, under prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.”
See also Acri v Int’l Ass’n of Machinists & Aerospace Workers, 781 F2d 1393, 1398 (CA 9, 1986); Stein v United Artists Corp, 691 F2d 885, 898 (CA 9, 1982); Addington v Farmer’s Elevator Mut Ins Co, 650 F2d 663, 666-667 (CA 5, 1981).
Thus, plaintiff’s amendment requested the court to change two of the four elements of her malpractice action — proximate cause and injury. Plaintiff would have to reestablish the proximate cause element by changing the injury element because the elements are interdependent. In other words, if a plaintiff is required to prove a new injury, she must, by definition, reestablish proximate cause.
Defendants’ questioning of plaintiff’s expert witness, Dr. Eric Neilson, is illustrative of their knowledge that Goodpasture’s syndrome attacks the lungs and that plaintiff suffered lung damage:
Q. Doctor, I’d like to talk a little bit about what Goodpasture’s syndrome is. It’s my understanding it’s an autoimmune disorder characterized by antiglomerular antibodies which attack the basement membranes of the lung and kidney; would that be correct?
A. Yes.
Q. . . . The diagnosis of Goodpasture’s is differentiated between other diseases which attack — attack the renal system in that it manifests itself both in the lungs and in the kidneys; correct?
A. Yes, there are groups of diseases that affect both the lung and the kidneys; simply that’s one of them.
* ** *
Q. Doctor, is there evidence that her [plaintiffs] lung hemorrhage got worse because she became ventilator dependent; is that the evidence?
A. No, I think her lung hemorrhage became more profound because she was in the middle of a very active disease .and it wasn’t treated.
Q. Okay. I am not asking if the ventilator caused or contributed to the lung hemorrhage, I want to know what evidence there is in the chart that the lung hemorrhage got worse from the time . . .
A. Her chest x-rays looked worse and the fact she was not able to ventilate herself suggested she had great difficulty in doing it on her own.
For instance, defendant Dr. Khera acknowledged in plaintiff’s pulmonary discharge summary that “[t]he patient ended up being on a respirator . . . .” Also, plaintiff’s medical records from William Beaumont Hospi tal state that plaintiff was on a respirator for two weeks: "For the respiratory failure, patient was being ventilated from Oct. 26, 1990 in Beaumont Hospital to Nov. 10, 1990.”
Plaintiffs mediation summary states that Goodpasture’s syndrome is believed to be a combination of diseases which attacks the lungs and kidneys.
In fact, in response to defendants’ interrogatory requesting plaintiff to “state specifically and in detail how the alleged negligence is causally related to the injury,” plaintiff replied:
Early diagnosis of Good Pasture [sic] Syndrome would have resulted in earlier initiation of therapy and would have prevented complete destruction of kidney function.
The plaintiff in Terhaar initially brought a medical malpractice action, alleging that the defendant was “negligent during a wisdom tooth extraction which allegedly resulted in paresthesia, or numbness, to her jaw.” Id. at 749. However, during discovery, both parties investigated whether the defendant had properly advised the plaintiff before the extraction of possible complications. Id. The plaintiff also indicated in her mediation summary that “she would pursue a theory of lack of informed consent.” Id. Furthermore, the plaintiff’s initial complaint even suggested that she would be pursuing that theory:
“On November 6, 1984, Defendant breached his duty to Plaintiff and was guilty of one or more of the following careless, negligent, and improper acts and/or omissions:
* ** *
“(f) Failure to examine, evaluate, treat and advise Plaintiff as any reasonably careful and prudent dentist in the same situation.” [Terhaar, supra at 749.]
In fact, the Court of Appeals held that “[defendant would not have been prejudiced by the amendment because he had notice of the generalized allegation of inadequate advice in paragraph seven, subsection (f) of plaintiff’s original complaint.” Id. at 752.
The plaintiff sought to amend her complaint to add the theory of lack of informed consent just before trial. The trial court denied the plaintiff’s motion, and the Court of Appeals reversed, holding that the defendant had reasonable notice of the plaintiff’s lack of informed consent claim. Id. at 752. | [
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Weaver, J.
Plaintiff-appellant places three issues before this Court. First, whether the Court of Appeals erred when it held defendant Higgins owed no duty to protect this plaintiff from reasonably foreseeable harm on these facts; second, whether the Court of Appeals erred in holding that the trial court erroneously instructed the jury on Michigan’s Child Protection Law, MCL 722.622; MSA 25.248(2); and, third, whether the Court of Appeals erred in finding that, as a matter of law, there was insufficient evidence to find that Higgins’ conduct was the proximate cause of plaintiff’s injuries.
We affirm the decision of the Court of Appeals. We hold that defendant Higgins owed no duty to plaintiff on the basis of these facts because no special relationship existed between Higgins and the plaintiff, or between Higgins and Kelley, the perpetrator. Further, we hold that the trial court erred in instructing the jury on Michigan’s Child Protection Law because the statute, by definition, does not apply to these facts.
i
In the summer of 1987, Christopher Murdock, the plaintiff-appellant, was a fifteen-year-old volunteer at the Kalamazoo County Department of Social Services (hereinafter DSS) Children’s Comer. The Kalamazoo County Juvenile Court ordered plaintiff to perform 150 hours of community service and referred plaintiff to the Kalamazoo County Dss Office of Volunteer Services. Defendant Mark Kelley was plaintiff’s supervisor at the Kalamazoo Dss and, eventually, befriended plaintiff. Defendant Kelley and plaintiff socialized with each other on their free time. On July 18, 1987, to celebrate the completion of plaintiff’s volunteer work, Kelley took plaintiff out to dinner. After dinner the two returned to Kelley’s home where they smoked Kelley’s marijuana. At that time, Kelley attempted to engage in sexual activities with plaintiff. Plaintiff, allegedly in an attempt to escape Kelley’s home, suggested that the two of them go to the hot tubs. Kelley took a bag containing soap, condoms, and lubricant.
Plaintiff fled from Kelley upon arriving at the hot tubs. At 1:00 A.M., plaintiff arrived at a friend’s house nearby and told the friend and that friend’s mother what had just occurred. The police were called and Kelley was arrested.
The DSS instituted an investigation of Kelley’s behavior. Their internal investigation revealed that Kelley had in fact provided plaintiff, a minor of fifteen years, with marijuana and had sexually assaulted him. On the basis of Kelley’s conduct, the DSS subsequently terminated Kelley.
Before working at the Kalamazoo Dss, Kelley worked at the Missaukee Dss. Defendant Charles Higgins, the director of the Missaukee County Department of Social Services, supervised Kelley while he worked with the Missaukee Dss. Higgins had hired Kelley about July 29, 1985, to coordinate volunteer services in Missaukee County. At trial, Higgins testified that he reviewed Kelley’s résumé and checked some references before deciding to hire Kelley, but he admitted that he failed to check Kelley’s last place of employment.
Testimony revealed that in August 1986, approximately one year after Higgins hired Kelley, another employee told Higgins that Kelley had been seen at a local park talking to teenage boys and taking them “for a ride.” Higgins testified that the alleged behavior raised minor concerns, and that he decided to discuss the allegations with Kelley.
On August 7, 1986, Higgins conducted the first of several meetings with Kelley regarding this alleged behavior, after and of which Higgins made brief notes. Higgins’ notes of this first meeting indicated that Kelley did not deny the “activity other than he ha[d] not picked up any males ‘under age 18.’ ” Higgins’ notes further read:
Suggested he consider resignation — if his activities became a problem, I would suspend/fire him as his position in the Dept. & the Dept’s function in the community could not tolerate this kind of activity/P.A. [sic]. Advised him to be extremely careful/discreet in his actions.
Higgins’ testimony and notes show that on the morning of August 8 he discussed the matter with the local sheriff and with Deputy Brooks. He discovered that no complaints about Kelley’s activity in the park had been filed or reported, but that the “park ranger has noticed Mark in the park on many occasions talking with young boys & taking them for rides.”
According to Higgins’ notes, later that day the sheriff’s department questioned Kelley. Kelley, in turn, discussed the sheriff department’s inquiries and warnings with Higgins, and Kelley told Higgins he would stay out of the park. Higgins testified that at that meeting he again warned Kelley that if a “problem” developed, Higgins would take “swift” action.
On August 11, 1986, Kelley called Higgins and said that he was upset that someone was spreading rumors about him. Kelley again assured Higgins that he would be more discreet.
Finally, on August 20, Higgins told Kelley that he was “not totally sure that all [of his] contacts are over 18.” Kelley told Higgins that he would have to leave town if he had “the urge to carry on.”
On November 7, 1986, Kelley transferred to the Kalamazoo Department of Social Services. On October 22, 1986, Higgins signed an “Employee Departure Report” to effectuate Kelley’s transfer to Kalamazoo. Higgins testified that when he learned of the transfer, he tried to telephone the director of the Kalamazoo County Dss, Vem Robert, to no avail. He did not follow-up with another telephone or a written inquiry, nor did he express his concerns about Kelley to the Kalamazoo Dss or to the Bureau of Labor Relations in Lansing. Higgins testified that he believed he could not report Kelley to the Lansing bureau without first receiving a formal complaint.
In 1988, plaintiff filed the instant action against Kelley, the Kalamazoo Dss, Donna Jarvis, Kelley’s DSS supervisor at the time of the incident, and Higgins, Kelley’s previous supervisor in Missaukee. A Kalamazoo Circuit Court jury found there was no cause of action against Donna Jarvis, but returned a verdict of approximately $120,000 against Kelley and Higgins. The jury found that Higgins was grossly negligent and that that was the proximate cause of plaintiff’s injuries.
Higgins appealed and claimed that he had no duty to plaintiff, that the trial court erred in instructing the jury on Michigan’s Child Protection Law, and that plaintiff had failed to prove that Higgins’ conduct was the proximate cause of plaintiff’s injuries.
The Court of Appeals reversed the jury’s determination against Higgins in a published per curiam opinion.
Plaintiff subsequently sought and we granted leave to appeal.
n
The first issue raised on appeal is whether the Court of Appeals erred when it held that Higgins owed no duty to plaintiff on the basis of these facts. Plaintiff alleged that defendant Higgins performed his job as DSS supervisor in a grossly negligent manner under MCL 691.1407(2)00; MSA 3.996(107)(2)(c) because he failed to properly investigate and supervise Kelley’s activities in Missaukee County or failed to disclose his suspicions about Kelley to the Kalamazoo County Dss officials.
The threshold question, whether a duty exists, is a question of law, an issue “solely for the court to decide . . . .” In determining whether to impose a duty, this Court evaluates factors such as: the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented. Buczkowski v McKay, 441 Mich 96, 100; 490 NW2d 330 (1992). Only after finding that a duty exists may the factfinder determine whether, in light of the particular facts of the case, there was a breach of the duty.
a
Generally, an individual has no duty to protect another who is endangered by a third person’s conduct. Where there is a duty to protect an individual from a harm by a third person, that duty to exercise reasonable care arises from a “special relationship” either between the defendant and the victim, or the defendant and the third party who caused the injury. Marcelletti v Bathani, 198 Mich App 655, 664; 500 NW2d 124 (1993). Such a special relationship must be sufficiently strong to require a defendant to take action to benefit the injured party. Samson v Saginaw Professional Bldg, Inc, 393 Mich 393, 406; 224 NW2d 843 (1975).
In this case, a special relationship would exist if the plaintiff had entrusted himself to the protection and control of defendant Higgins and, in so doing, lost the ability to protect himself. Dykema v Gus Macker, 196 Mich App 6, 9; 492 NW2d 472 (1992), citing Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). During his volunteer work with the Kalamazoo Dss, plaintiff arguably entrusted himself to the control of the Kalamazoo Dss. However, this plaintiff had no such trust relationship with defendant Higgins. The two never made each other’s acquaintance, and never spoke or otherwise communicated. Higgins, as the supervisor of Missaukee Dss personnel, had no contact with or control over Kalamazoo personnel or volunteers. In short, defendant Higgins had no duty to this plaintiff on the basis of a “special relationship” between himself and plaintiff because he had no knowledge of or communication with plaintiff.
Unlike cases in which this Court has recognized a special relationship between a plaintiff and a defendant, this plaintiff never surrendered control of himself to Higgins. Rather, this plaintiff was assaulted by Kelley during a voluntary social outing that occurred after the conclusion of plaintiffs volunteer work with the Kalamazoo Dss. Neither Higgins nor the dss had control over plaintiff outside his work with Children’s Comer. Therefore, we find that defendant Higgins had no “special relationship” with plaintiff from which a duty could be imposed because Higgins had no knowledge of, contact with, or control over plaintiff.
B
While we find that a special relationship did not exist between plaintiff and Higgins, Higgins could still owe this plaintiff a duty not to hire or supervise DSS personnel in a grossly negligent manner should a special relationship be found to exist between Higgins and Kelley, the perpetrator. The employment relation ship can form the basis for such a special relationship that would impose a duty and may impose liability on Higgins.
On the basis of this relationship, plaintiff claims that Higgins owed a duty to not be grossly negligent in the hiring and supervision of Missaukee Dss employees. While Higgins does have such an obligation, we find that he did not owe such a duty to this plaintiff. Plaintiff was injured by a Kalamazoo Dss employee, under the supervision of Donna Jarvis. Higgins’ supervision of Kelley concluded when Kelley transferred to Kalamazoo, approximately one year before Kelley assaulted plaintiff. Higgins did not owe plaintiff a duty to hire and supervise Kelley in a non-grossly negligent manner because, at the time of the assault, Higgins was not Kelley’s supervisor and the Missaukee Dss was no longer Kelley’s employer.
Plaintiff also claims that Higgins breached his duty to disclose Kelley’s dangerous propensities respecting minors to the Kalamazoo Dss. Plaintiff’s claim is based on Michigan common law recognizing a qualified privilege that allows former employers to disclose dangerous actions or violent tendencies of past employees to prospective employers without being subject to claims of libel or slander. This common-law qualified privilege has not, however, evolved into an affirmative duty to inform on the part of a prior employer. As stated in Moore v St Joseph Nursing Home, Inc, 184 Mich App 766, 768-769; 459 NW2d 100 (1990):
We agree that Michigan law recognizes an employer’s qualified privilege to divulge information about a former employee to a prospective employer. There is, however, nothing about the conditional privilege which magically transposes it into a legal obligation requiring employers to disclose adverse information concerning a former employee. Rather, it is quite clear that in Michigan a former employer’s duty to release information about a past employee is an imperfect obligation of a moral or social character. [Emphasis added; citations omitted.]
The Court of Appeals continuation of this analysis aptly addresses two additional concerns, the burden on the defendant and the nature of the risk presented, that this Court often evaluates when deciding whether or not a particular defendant owes an individual plaintiff a duty.
There is a great societal interest in insuring that employment records are kept confidential. It is all too easy to envision a career destroyed by malefic information released by a disgruntled former employer. To expand the qualified privilege presently enjoyed by employers to require the release of deleterious information without fear of a defamation suit represents a major change in the law. We note that, at present, Michigan has no less than nine statutory provisions addressing libel and slander. In light of this clearly demonstrated legislative intent to regulate defamation law, we feel the position urged upon this Court by the plaintiffs is the type of substantive change in the law which is best left to the Legislature. [Moore v St Joseph Nursing Home, supra at 769 (emphasis added; citations omitted).]
Essentially, plaintiff asks this Court to create a duty to disclose for intradepartmental or intracompany transfers, although we have refused to impose a duty for intercompany, or interdepartment, disclosures. Because we find that both intracompany and intercompany disclosures present the same concerns, we decline to create a new cause of action on the basis of the facts before this Court. The qualified privilege shields certain discretionary disclosures from liability for slander, but the privilege does not transform such discretionary disclosures into mandatory acts.
c
Moreover, Higgins did not have a duty to protect plaintiff from unreasonable harm because plaintiff was not one of “those persons readily identifiable as foreseeably endangered.” Marcelletti, supra at 665. First, Higgins had no idea that Kelley would have any professional contact with minors because Kelley’s similar position with the Missaukee Dss did not require that Kelley work, or have any contact, with minors. While plaintiff claims Higgins should have contacted the Kalamazoo office to become informed regarding the requirements of Kelley’s new position, plaintiff cannot show that Higgins was acting unreasonably in failing to become so informed.
Even if Higgins knew Kelley would have some professional contact with minors, Higgins could not foresee that Kelley posed a threat to those with whom he worked, such as the plaintiff. The information Higgins received regarding Kelley’s activities in the Missaukee park involved alleged conduct that occurred after work on Kelley’s free time with young men whom Kelley met on his own. There is no evidence that these contacts were introduced to Kelley by virtue, or through the course, of Kelley’s work, or their work, with the dss.
Moreover, even though Kelley told Higgins that he was not sure all his contacts were of consenting age, Kelley never confirmed that he, in fact, had any contact with minors. Plaintiff was not a reasonably foreseeable victim of Kelley’s alleged predation because Higgins had no indication that Kelley was uncontrollably attracted to minors. Rather, Kelley repeatedly assured Higgins that he would refrain from engaging in such behavior. When Higgins checked with the local sheriff he found no complaints or reports regarding Kelley’s activities in the park. This would indicate to Higgins that Kelley had no prior problems curtailing his behavior with minors, and that his behavior toward minors was controllable and appropriate.
On the basis of the above, we find that defendant Higgins could not foresee that Kelley would abuse his position with the DSS to assault plaintiff.
m
Although the following discussion regarding the trial court’s Child Protection Law instruction is not necessary to dispose of this case, for clarification purposes we address the issue.
The Court of Appeals found that the trial court erred in instructing the jury on Michigan’s Child Protection Law. We agree. Under Michigan law, it is error to instruct a jury about an issue unsustained by the evidence or the pleadings. Mills v White Castle Systems, Inc (After Remand), 199 Mich App 588, 591; 502 NW2d 331 (1992). However, there is no error requiring reversal if, on balance, the theories of the parties and the applicable law were adequately and fairly presented to the jury. Williams v Coleman, 194 Mich App 606, 623; 488 NW2d 464 (1992).
In this case, the trial judge’s instruction on Michigan’s Child Protection Law only served to confuse the issues for the jury. Plaintiff argues that the instruction was not erroneous because Higgins introduced the topic and solicited testimony, albeit indirectly, on the duty to report. Regardless of who solicited testi mony on the subject or first injected it into the case, Michigan law clearly provides that it is erroneous to instruct a jury on an issue unsustained by the evidence or the pleadings. Mills v White Castle Systems, Inc (After Remand), supra at 591. The statutory definitions within Michigan’s Child Protection Law clearly do not apply to this defendant under the facts of this case.
At the time of the incident in question, the Child Protection Law required, in pertinent part, that:
A . . . social worker, social work technician . . . who has reasonable cause to suspect child abuse or neglect shall make immediately, by telephone or otherwise, an oral report, or cause an oral report to be made, of the suspected child abuse or neglect to the department. [MCL 722.623(1); MSA 25.248(3)(1).]
Defendant Higgins, as a certified social worker, had a duty to make an oral report of suspected child abuse if he has “reasonable cause to suspect child abuse or neglect” as defined by MCL 722.623(1); MSA 25.248(3)(1). MCL 722.622(c); MSA 25.248(2)(c) defined “child abuse” as:
harm or threatened harm to a child’s health or welfare by a parent, legal guardian, or any other person responsible for the child’s health or welfare or by a teacher or teacher’s aide which occurs through nonaccidental physical or mental injury; sexual abuse; sexual exploitation; or maltreatment.
At the time in question, this only applied to the “known abuse of a specific child [by] a person [who was] responsible for that child’s health or welfare .. . .” 208 Mich App 210, 218; 527 NW2d 1 (1994).
We agree with the conclusion of the Court of Appeals in Marcelletti v Bathani, supra at 659, 661, when it said:
[T]he Legislature intended that liability under the statute be limited to claims for damages by the identified abused child about whom no report was made .... Michigan’s child abuse reporting statute creates a private right of action only in an identified abused child.
Therefore, under the statute, Higgins would have no duty to report if he had no information of any specific, individual child “abused” by Kelley. Indeed, in this case, Higgins did not know of a specific child that Kelley had abused. Kelley did not indicate that he knew the identity of any contacts he had that might have been minors and could not be sure that any of his contacts were minors. Moreover, Higgins had no knowledge that Kelley’s contacts were of a sexual nature or involved acts that would otherwise constitute “abuse” under the statute.
Furthermore, Kelley’s relationships with the park contacts were not the type addressed by the law. The Legislature limited the scope of the duty to report by the type of relationship between the suspected abuser and the child who was allegedly abused. MCL 722.622(h); MSA 25.248(2)(h) defined a “[p]erson responsible for the child’s health or welfare” as
a parent, legal guardian, person 18 years of age or older who resides for any length of time in the same home in which the child resides, or an owner, operator, volunteer, or employee of . . . [a] licensed or unlicensed child care organization . . . [or] licensed or unlicensed adult foster care family home or adult foster care small group home ....
In this case, Kelley was not responsible for the health or welfare of any of the individuals with whom he allegedly had contacts while in Missaukee. The youths were not introduced to Kelley or exposed to Kelley through his work with the DSS, therefore, he had no professional responsibility for these individuals.
In sum, Higgins had no duty under Michigan’s Child Protection Law, given the plain meaning of the statutory definitions, which serve as deliberate limits to the scope of the act. We, therefore, find that the Court of Appeals correctly reversed the trial court’s instruction on the Child Protection Law.
iv
Accordingly, we affirm the decision of the Court of Appeals and hold that defendant Higgins owed no duty to plaintiff on these facts because no special relationship existed between defendant Higgins and Kelley, or between defendant Higgins and the plaintiff. Because we find that there was no duty owed by Higgins to this particular plaintiff there is no need to address the further questions whether Higgins’ con duct was the proximate cause of Kelley’s behavior and plaintiff’s alleged injury.
We further affirm the decision of the Court of Appeals and hold that the trial court erroneously instructed the jury on Michigan’s Child Protection Law.
Mallett, C.J., and Brickley and Riley, JJ., concurred with Weaver, J.
Because we affirm the trial court’s holding that defendant Higgins owed no duty to plaintiff on the basis of these facts, we do not need to address whether there was insufficient evidence to find that defendant Higgins’ conduct proximately caused plaintiff’s injuries.
Moreover, Higgins asserts that the public-duty doctrine, most recently addressed by this Court in White v Beasley, 453 Mich 308; 552 NW2d 1 (1996), shields him from liability. In the relevant part of White v Beasley, this Court upheld the public-duty doctrine, which acts as a defense once a duty is found, and held that, as applied to police officers, the doctrine shields defendant officers from liability for negligent nonfeasance, or failure to provide police protection, unless the plaintiff can establish that a special relationship existed between the officers and the plaintiff. Because we hold that defendant Higgins owed no duty at common law to this plaintiff, it is unnecessary to address whether Higgins has a valid defense in the public-duty doctrine.
208 Mich App 210; 527 NW2d 1 (1994).
We note that the Court of Appeals incorrectly stated that plaintiff was eighteen years of age at the time Kelley assaulted him. Id., n 2 supra at 212.
Had Higgins investigated this matter, he would have found that Kelley was forced to resign as an assistant minister of a small church in Delhi, Michigan, because of allegations that he had homosexual relations with, and sexually assaulted, a minor. These charges were dismissed, however, when it was discovered that the young man involved was not in fact a minor, but was sixteen years old and had, therefore, reached the age of consent.
Higgins’ concerns were expressed in his personal notes as follows:
Received word from an interested person that an employee— Mark Kelley was spending a great deal of time driving in & out of the County Park & talking with young boys — on occasion picking them up & taking them for a ride.
This is of concern as Mark is known as being “Gay” by most all that know him.
The three officials were charged with negligent hiring and supervision of Kelley. Through a series of amended complaints, only the three individual defendants remained.
N 2 supra.
Pursuant to MCL 691.1407(2)(c); MSA 3.996(107)(2)(c), plaintiff must prove that defendant engaged in conduct so reckless as to demonstrate a substantial lack of concern for whether injury results from that conduct.
Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). See also Lorencz v Ford Motor Co, 439 Mich 370; 483 NW2d 844 (1992), and Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981).
Marcelletti v Bathani, 198 Mich App 655, 664; 500 NW2d 124 (1993). See also Buczkowski v McKay, supra, and Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988).
In Williams v Cunningham Drug Stores, Inc, supra at 498-499, this Court found that the owners of a drug store had a duty to protect the store’s patrons from unreasonable risk of harm caused by a dangerous condition in or at the store. The duty was based on the invitor-invitee “special relationship.” The Court, however, refused to extend this duty to require a merchant to provide armed, visible security guards to deter criminal acts of third parties. Id. at 501.
Some other generally recognized “special relationships” include the common carrier-passenger, innkeeper-guest, landlord-tenant, employer-employee, and doctor-patient/psyehiatrist-patient. Id. at 499. See also Moning, n 9 supra at 438-439, Preston v Sleziak, 383 Mich 442, 450; 175 NW2d 759 (1970), Romeo v Van Otterloo, 117 Mich App 333, 341-343; 323 NW2d 693 (1982), and Duvall v Goldin, 139 Mich App 342; 362 NW2d 275 (1984).
See Bradley v Stevens, 329 Mich 556; 46 NW2d 382 (1951), Hersh v Kentfield Builders, Inc, 385 Mich 410; 189 NW2d 286 (1971), and Romeo v Van Otterloo, n 11 supra at 341-343.
Moore v St Joseph Nursing Home, Inc, 184 Mich App 766; 459 NW2d 100 (1990). See also Carroll v Owen, 178 Mich 551; 146 NW 168 (1914).
In so finding we would note that Michigan common law does not distinguish between intercompany and intracompany disclosure. Rather, where the qualified privilege applies, it shields the individual, who releases the information to a prospective employer or a different department with the same employer, from liability for libel, slander, or defamation where “ ‘the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty.’ ” Wynn v Cole, 91 Mich App 517, 523, n 1; 284 NW2d 144 (1979) (regarding disclosures by prior employer) quoting Bacon v Michigan Central R Co, 66 Mich 166, 170; 33 NW 181 (1887). See also Parks v Johnson, 84 Mich App 162, 171; 269 NW2d 514 (1978) (involving disclosures about current employee).
Creating a duty to disclose would be particularly inappropriate in this case where the alleged park activity was never substantiated. In this case, defendant Higgins’ testimony indicated that he did not disclose his suspicions regarding Kelley because they were just that — suspicions. The reported park activity was never confirmed. Kelley testified only that it was possible that some of the young men were minors. Furthermore, the sheriff had no filed complaints regarding Kelley’s alleged activities in the park. Higgins’ testimony indicated that he suspected that the park “activity” was sexual in nature, but that Kelley never confirmed this suspicion during their meetings, particularly with respect to the conduct, if any, that Kelley may have had with minors.
In fact, defendant Higgins testified that he unsuccessfully attempted to telephone Vem Robert, the director of Kalamazoo County Dss. Higgins further testified that he would have communicated his concerns about Kelley to Robert if he had a complaint or some other form of concrete evidence to substantiate Kelley’s alleged inappropriate behavior.
Michigan’s Child Protection Law, at the relevant time, was codified at MCL 722.621 et seq.; MSA 25.248(1) et seq.
Originally, plaintiff’s fourth amended complaint did not allege that defendant Higgins failed to report suspected child abuse pursuant to Michigan’s Child Protection Law, MCL 722.621 et seq.; MSA 25.248(1) et seq. At the close of proofs, pursuant to MCR 2.118(C)(1), plaintiff amended the complaint to conform to the evidence presented regarding MCL 722.621; MSA 25.248(1). The issue was injected initially by defendant Higgins’ counsel.
Plaintiff called defendant Higgins to the stand as an adverse witness. During cross-examination, defense counsel asked defendant if Child Protective Services ever investigated Kelley. Plaintiff’s counsel then, on redirect examination, raised the Child Protection Law and the duty to report to Protective Services. Most of the remaining time at trial was devoted to the statutory duty to report issue. | [
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Boyle, J.
i
In this case we are asked to determine whether plaintiff has stated a valid claim of wrongful discharge from employment under Michigan’s Whistleblowers’ Protection Act (wpa), breach of' contract principles, and public policy. For the reasons that follow, we hold that plaintiff has failed to state a claim of wrongful discharge from employment under public policy and breach of contract principles, but has stated a valid claim under the WPA. Accordingly, we affirm the grant of summary disposition as it relates to the public policy and breach of contract claims, and reverse and remand for further proceedings on the wpa claim.
n
Plaintiff worked as a ticketing agent for defendant airlines at the Capitol City Airport in Lansing, Michi gan. In early 1991, as a means of tightening airport security during the Persian Gulf War, plaintiff and her colleagues were asked to stay alert to individuals purchasing tickets or otherwise contacting the airline who fit a designated profile description relating to drug trafficking or terrorist activities. Plaintiff did just that and, in January or February, 1991, she and a coworker informed airport security of individuals who fit the profile description. On the basis of plaintiffs tip, the Federal Drug Enforcement Agency intervened and made an arrest. Shortly thereafter, plaintiff again contacted the authorities to report yet another individual whom she believed fit the designated profile. The dea assured plaintiff that she would be rewarded.
On February 10, 1991, the general manager of Continental Express posted a written notice directing employees to seek management approval before contacting authorities to report individuals believed to fit the profile description. One month later, plaintiff was approached by the general manager and asked if she had contacted the DEA after February 10, 1991. Plaintiff claimed that she had not, but was sent home pending an investigation.
According to plaintiff, Continental’s investigation unearthed two individuals who agreed to provide written statements indicating that plaintiff had reported two passenger names to the dea after February 10, 1991. When confronted, plaintiff admitted that she contacted the dea after the February date, but insisted that she did so only because she wanted information on the status of her reward. Plaintiff contends that she did not report passenger names after the February 10 posting.
In March, 1991, the general manager of Continental Express contacted the plaintiff and told her that her relationship with Continental was over. The next day, plaintiff was shown one of two written statements that alleged that she had contacted the dea without Continental Express’ approval after February 10, 1991. Plaintiff was told that corporate headquarters would make the final determination on her employment status. Subsequently, plaintiff’s employment was terminated.
Plaintiff’s original complaint alleged wrongful discharge from employment under the Michigan Whistleblowers’ Protection Act and breach of contract principles. The circuit court granted defendant’s motion for summary disposition on the wpa claim. Shortly thereafter, plaintiff filed an amended complaint, adding a new charge of wrongful discharge from employment in violation of public policy. Defendant again sought dismissal of plaintiffs claims under MCR 2.116(C)(8). At the same time, plaintiff filed a motion for relief from the October 10, 1991, order granting defendant summary disposition on the wpa claim. After consolidating the matters, the court granted defendant’s motion to dismiss plaintiff’s first amended complaint with prejudice and denied plaintiff’s motion for relief from the October 10, 1991, order. The Court of Appeals affirmed. We granted leave to appeal. 452 Mich 867 (1996).
m
Plaintiff alleges that the court dismissed the wpa claim on the basis of a faulty interpretation of the law. According to plaintiff, the December 16, 1991, decision in Dudewicz v Norris Schmid, Inc, 192 Mich App 247, 254; 480 NW2d 612, aff’d in part and rev’d in part 443 Mich 68; 503 NW2d 645 (1993), extended the application of the act and required that the court grant relief from its earlier order dismissing the whistleblowers’ claim.
In considering plaintiff’s motion for relief from that order, the circuit court reviewed the whistleblowers’ claim in light of the Court of Appeals opinion in Dudewicz and determined that the grant of summary disposition had been appropriate. On appeal, the Court of Appeals, having the benefit of this Court’s analysis in Dudewicz, reduced the instant issue to whether the wpa was intended to protect “third parties whose violations, if any, have no connection to the business.” 208 Mich App 316, 318-319; 526 NW2d 922 (1995). The Court of Appeals found that the act did not apply, stating that “in order for the wpa to apply, the violation or suspected violation must be committed in the course of doing business.” Id. at 320.
IV
Michigan’s Whistleblowers’ Protection Act was first enacted in 1981, largely in response to the accidental PBB-contamination of livestock feed. The act “encourage[s] employees to assist in law enforcement and . . . protects] those employees who engage in whistleblowing activities.” It does so with an eye toward promoting public health and safety. The underlying purpose of the act is protection of the public. The act meets this objective by protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law. Without employees who axe willing to risk adverse employment consequences as a result of whistleblowing activities, the public would remain unaware of large-scale and potentially dangerous abuses.
To establish a prima facie case under the wpa, plaintiff must prove that she “reported] or [was] about to report ... a violation or a suspected violation of a law ... to a public body.” MCL 15.362; MSA 17.428(2). Plaintiff asserts that she was termi nated “because [she] reported and/or was perceived to report a violation or a suspected violation of a law . . . .” Because plaintiff appeals from a motion granting summary disposition, all factual allegations supporting her claims must be accepted as true.
v
A motion for summary disposition under MCR 2.116(C)(8), tests the legal basis of the claim and is granted if the claim is so manifestly unenforceable as a matter of law that no factual progression could possibly support recovery. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995). Motions for summary disposition are examined on the pleadings alone, absent consideration of supporting affidavits, depositions, admissions, or other documentary evidence, and all factual allegations contained in the complaint must be accepted as trae. Id. at 654.
VI
The pivotal question in this case is whether the plaintiff stated a valid claim of wrongful discharge from employment under the wpa where she alleged that she reported or was perceived to report a violation or suspected violation of the law. We find that she did.
A plain reading of the wpa reveals that employees who report violations or suspected violations of the law to a public body are entitled to protection under the act. As interpreted, the act provides protection to employees who report violations of law by either their employers or fellow employees. Dudewicz, 443 Mich 68. The act was intended to protect employees who alert the public to “corruption or criminally irresponsible behavior in the conduct of government or large businesses.” Id. at 75. Frequently, a close connection exists between the reported violation and the employment setting, although no such limitation is found in the statute. Id.
In Dudewicz, the plaintiff worked as a parts manager for the defendant automobile dealership. In an effort to gain better service for a customer, the plaintiff, along with the dealership’s owner, convinced the service manager to perform work for the customer under warranty. After the owner left the area, the ser vice manager allegedly assaulted the plaintiff. The plaintiff was fired when he refused to drop criminal charges against the service manager. A majority of this Court afforded the plaintiff protection under the WPA. While acknowledging that the connection between the violation and the employment setting was slightly more attenuated than “traditional notions of whistleblowing,” the majority found that the violation was “very much within the employer-employee setting.”
In light of the approach taken in Dudewicz, we decline to limit application of the wpa to reported violations of the employer alone. In accordance with the plain language of the act, plaintiff has alleged that she was fired because she reported or was believed to have reported a violation of the law. This allegation is sufficient to state a claim of wrongful discharge from employment under the wpa. In addition, we find that the reported violation in the present case was sufficiently related to the employment setting to be protected under the wpa. This is not to say that only those violations that are connected to the employment setting are contemplated under the wpa, only that the reported violation in the present case was sufficiently connected to the employment setting to be contemplated under the majority opinion in Dudewicz.
Accordingly, we find that the trial court erred in granting the defendant’s motion for summary disposition on the wpa claim. Because the wpa is the exclusive remedy against discharge in retaliation for the conduct at issue, the grant of the motion for summary disposition on the public policy claim is affirmed. Id. at 80.
vn
Lastly, plaintiff alleges that the defendant maintained written policies that gave rise to an express or implied contract of continued employment and a legitimate expectation that the plaintiff would not be terminated in a manner contrary to those policies. Both the circuit court and the Court of Appeals held that, as a matter of law, on the basis of defendant’s written disciplinary policies alone, plaintiff had no legitimate expectation of continued employment, nor could an inference be drawn that the relationship between the parties was a contract for termination for good cause only. We agree.
It is a settled tenet of Michigan law that employment contracts for an indefinite term produce a presumption of employment at will absent distinguishing features to the contrary. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). To overcome this presumption, evidence may be produced that proves the existence of an express contract for a definite term or an express provision in a contract that forbids termination absent just cause. Proof of a promise of job security implied in fact, such as employment for a particular term or a prom ise to terminate only for just cause, may also overcome the presumption. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). Furthermore, company policies and procedures may become an enforceable part of an employment relationship if such policies and procedures instill legitimate expectations of job security in employees. Rood v General Dynamics Corp, 444 Mich 107, 117-118; 507 NW2d 591 (1993). This presumption does not prevent proof of actual intent, nor should it sanction unjustified evasions of promissory liability.
A
Plaintiff does not allege that the defendant orally promised that her employment would continue indefinitely absent just cause for termination. Instead, she alleges that the defendant’s Human Resources Policy Manual incorporated written policies that established a progressive disciplinary system whereby plaintiff could be terminated only for cause. It is by virtue of these policies that plaintiff contends that an express or implied contract of employment arose and that a legitimate expectation was created that plaintiff would not be disciplined or terminated in a manner contrary to those stated policies.
In Toussaint, supra at 610, this Court acknowledged that written statements in a company policy and procedure manual could give rise to enforceable rights in contract or to a legitimate expectation of just-cause employ-ment. In Renny v Port Huron Hosp, 427 Mich 415; 398 NW2d 327 (1986), that same idea found expression when the Court held that an employee handbook could provide the basis of a just-cause employment contract. Later, in Rood, this Court once again considered whether written policy statements provided the basis for an employment agreement terminable only for cause. The Court opined that where policy manuals are distributed throughout the company
our inquiry is not limited to the question whether the employer sufficiently manifested an intention to enter a single contractual just-cause employment relationship with the party before the Court, but, rather whether the employer has sufficiently manifested an intention to enter such a relationship with all employees subject to the relevant policies and practices. [Id. at 136.][ ]
According to the Court in Rood, the mere dissemination of an employee handbook that implied a discharge-for-cause policy was insufficient as a matter of law to state a cause of action for breach of contract. Policies such as these “may become part of an employment contract only when the circumstances (e.g., the language in the handbook itself, or an employer’s oral statements or conduct) clearly and unambiguously indicate that the parties so intended.” Id. at 137.
Plaintiff alleges that she was wrongfully terminated from her employment contrary to defendant’s written policy statements that expressly or impliedly formed the basis of her employment agreement with the defendant. Plaintiff acknowledges that defendant’s policies were not unique to her, but were applicable to all the defendant’s employees. Absent allegations in the pleadings that clearly and unambiguously indicate the defendant’s intent to create a just-cause employment relationship with all its employees, or in particular with this plaintiff, we hold that plaintiff has not, as a matter of law, stated a claim on which relief can be granted.
B
Plaintiff next contends that she had a legitimate expectation that she would not be terminated, or otherwise disciplined, in a manner contrary to the policies set forth in the defendant’s policy and procedure manual. In other words, plaintiff contends that she had a legitimate expectation of just-cause employment.
The legitimate-expectations prong of Toussaint was founded on this Court’s common-law authority to rec ognize enforceable obligations that arise outside the scope of normal contract principles. The theory operates as a viable, independent basis for enforcing promises of job security contained in policy statements that are circulated “either ‘to the work force in general or to specific classifications of the work force, rather than to an individual employee.’ ” Having announced its policy, and presumably having been benefited by that policy, the employer may not then treat it as illusory. Employer policy statements that are “reasonably capable of being interpreted” as promises to discharge for just cause only, or that are capable of two reasonable interpretations, create an issue of fact for the jury.
Defendant’s policy manual states that its progressive disciplinary action plan “allows an employee the opportunity to make necessary corrections in their performance.” It also establishes that discipline “should be used only when other efforts have failed or if the violation in question precludes other alternatives.” Additionally, the manual states that “[t]he supervisor must investigate early and thoroughly to be fair as well as to prepare for possible testimony that just cause existed for disciplinary action.”
Defendant’s disciplinary policies also expressly indicate, however, that certain situations may require more severe action than that detailed in the policy manual. In situations where the appropriate disciplinary action is not designated in the manual, the supervisor is not precluded from taking the necessary action, but is required to contact the Human Resource Department to “discuss the proper approach.” Particularly relevant are defendant’s policies on involuntary terminations. Although the policies indicate that “[e]very effort will be made to improve employee performance and correct deficiencies to avoid termination of employment,” they also state that “[w]ith the exception of serious infractions, an employee will be given the opportunity to correct deficiencies.”
Infractions serious enough to require automatic termination are listed in the policy manual. Also listed are those infractions that may warrant dismissal on the first offense. Infractions resulting in possible first offense termination include “[r]efusing to follow directions from supervisors or showing gross insubordination.” The policy and procedure manual expressly states that the listed offenses are only “examples of common offenses for which employees may be terminated for cause” and is not an all-inclusive list. As this Court held in Rood, supra, “[a] nonexclusive list of common-sense rules of behavior that can lead to disciplinary action or discharge, clearly reserves the right of an employer to discharge an employee at will.” Accordingly, the grant of summary disposition on plaintiff’s breach of contract claim is affirmed.
vm
For these reasons, we affirm the grant of summary disposition on plaintiffs public policy and breach of contract claims, and reverse the grant of summary disposition on plaintiffs wpa claim. We remand this claim to the trial court for further proceedings consistent with this opinion.
Mallett, C.J., and Brickley, Cavanagh, Riley, Weaver, and Kelly, JJ., concurred with Boyle, J.
MCL 15.362; MSA 17.428(2).
The named defendant was Continental Airlines/Continental Express, a Delaware corporation. Defendant has informed this Court that no such corporation exists. Instead, according to defendant, plaintiff was employed by Britt Airways, Inc., doing business as Continental Express. Britt Airways, Inc., a Delaware corporation, is a wholly owned, but independent, subsidiary of Continental Airlines, Inc. For purposes of this opinion, defendant will be referred to as Continental Express.
The posted notice stated:
From Feb 10th on you must have my OK to call D.E.A. officials on any person or persons suspected of drug trafficing [sic]. If you cannot get ahold of me, you should . . . write down . . . why you feel this way, then place this in a sealed envelope in my mailbox. There are no exceptions.
According to the pleadings, the written statements alleged that plaintiff contacted the DEA on March 13, 1991, and provided them with two passenger names.
Plaintiff alleges that further discussions occurred between plaintiff and Continental Express after the general manager told plaintiff that it was “over” and before plaintiff’s employment officially ended.
The order was entered on October 10, 1991. The trial court held:
[T]he defendant may have been wrong in its assessment of her activity, but that’s not the point of the motion. The point of the motion is that it goes to a discharge based on particular kind of a motivation and the motivation forbidden by the statute is that of vindictiveness or revenge for action taken by the employee which is aimed at reporting illegal activity by the employer which is clearly not involved here, for precisely the reasons stated in the defendant’s motion. And the motion is granted.
Dudewicz, supra, 443 Mich 82-83 (Boyle, J., dissenting) (employees of the chemical company that mistakenly substituted poisonous fire retardant for nutritional supplements were warned not to volunteer information of the mistake to investigators or else they would be fired). See also Culp, Whistleblowers: Corporate anarchists or heroes? Towards a judicial perspective, 13 Hofstra Lab L J 109, 129 (1995) (Michigan was the first jurisdiction to provide general statutory protection for the whistleblower), and Barcia, Update on Michigan’s Whistleblowers’ Protection Act, 1988 Det C L R 1, 2.
Dudewicz, 443 Mich 83 (Boyle, J., dissenting).
The legislative analysis of the Whistleblowers’ Protection Act provides:
Violations of the law by corporations or by governments and by the men and women who have the power to manage them are among the greatest threats to the public welfare. . . . Because these institutions are large and impersonal, and because they are regulated by complex and, to most people, unfamiliar statutes and rules, specific violations of the law by them often go unnoticed by the public which is the victim. [House Legislative Analysis, HB 5088, 5089, February 5, 1981 (emphasis added).]
One commentator categorizes whistleblowers into three distinct groups:
[Group 1: Passive Whistleblowers — ]employees who do nothing more than respond to lawful requests for information from governmental authorities. [Also included are those] employees who refuse to carry out illegal instructions, but who do not publicly disclose such instructions [to others].
[Group 2: Active Whistleblowers — ] employees who voice their concerns regarding their employers’ illegal behavior, either internally or externally. . . . [This group] include[s] employees who take affirmative steps to oppose their employers’ conduct within the confines of their employers’ organizations, in addition • to employees who report illegal practices to persons outside of their employers’ organizations.
. [Group 3: Embryonic Whistleblowers — ]employees who are terminated before they have the opportunity to oppose their employers’ practices, ostensibly because their employers suspected that such employees harbored an intent to actively oppose illegal practices. [Westman, Whistleblowing: The Law of Retaliatory Discharge, pp 19-20.]
House Legislative Analysis, n 9 supra.
The Whistleblowers’ Protection Act provides:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee . . . reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state ... to a public body .... [MCL 15.362; MSA 17.428(2).]
Plaintiff contends that she was fired because she reported or was believed to have reported a violation or suspected violation of the law. At the same time, plaintiff admits that she did not report a violation or suspected violation when she contacted the DEA after February 10, 1991. Additionally, no allegations were made that plaintiff was about to report a violation or suspected violation of the law.
Despite the fact that no reports were made after February 10, plaintiff alleged that defendant believed she made additional reports and she was fired for doing so. Plaintiff asserts that any communication she had with the DEA after February 10, 1991, involved a continuation of the initial protected activity. Thus, any telephone call plaintiff made to the DEA after February 10, 1991, constituted potentially protected activity in that it was a continuation of the contact that occurred before the February 10 posting. Plaintiff’s position is that the employer may not make such activity the basis of unfavorable or adverse employment decisions.
This conclusion is predicated on the characterization of plaintiffs argument as a “continuing violation.” See n 13. We do not reach the question whether a perceived whistleblower is entitled to protection under the WPA. Chandler v Dowell Schlumberger, 214 Mich App 111; 542 NW2d 310 (1995).
House Legislative Analysis, n 9 supra.
Dudewicz, supra, 443 Mich 75.
Id. at 78.
The Dudewicz majority noted that the violation arose out of a dispute over the handling of company business that occurred on company premises during business hours. Id. at 80. In the present case, reports were made on company premises during business hours. The very fact that a corporate directive was set in order, dictating the manner and method by which reports to the DEA could be made, provides strong evidence that the violation was connected to the employment setting.
Rowe, supra at 676, n 14 (Boyle, J., concurring).
Plaintiff specifically alleges that she had a ‘‘reasonable and legitimate expectation that she wold [sic] not be involuntarily terminated from employment with the Defendant, or disciplined, in a manner contrary to the policies evidenced by [the policy manual].”
Toussaint held:
Since Blue Cross published and distributed a 260-page manual establishing elaborate procedures promising “[t]o provide for the administration of fair, consistent and reasonable corrective discipline” and “to treat employees leaving Blue Cross in a fair and consistent manner and to release employees for just cause only,” its employees could justifiably rely on those expressions and conduct themselves accordingly. [Id. at 617.]
The Court held:
[A] finding that the employee policy of discharge for cause contained in the GDLS employee handbooks became a part of Dr. Rood’s employment contract would necessarily constitute a finding that it became a part of the employment contract of every manager who had been employed at GDLS when the handbooks were in effect. Such a commitment should not be lightly inferred. [Id. at 136-137.]
Rood, supra at 118.
Id. at 138, quoting In re Certified Question, 432 Mich 438, 443, n 3; 443 NW2d 112 (1989).
See id. at 454-455.
Rood, supra at 140.
See Hale v Comerica Bank, 189 Mich App 382; 473 NW2d 725 (1991).
Rood, supra at 142.
See also Biggs v Hilton Hotel Corp, 194 Mich App 239; 486 NW2d 61 (1992) (the fact that the defendant had established a disciplinary system for its employees and, apparently, obligated the plaintiff to abide by that disciplinary system in dealing with his subordinates does not establish unequivocally the plaintiff's position that he was a just-cause employee rather than an employee at will); Stopczynski v Ford Motor Co, 200 Mich App 190; 503 NW2d 912 (1993) (by simply adopting disciplinary procedures applicable to the plaintiff, the defendant did not alter the at-will relationship); Brocklehurst v PPG Industries, Inc, 836 F Supp 1354, 1360 (ED Mich, 1993) (a listing of prohibited conduct is simply not enough to overcome the presumption of employment at will). | [
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Per Curiam.
This is a dispute between two insurance companies over a subrogation claim for property damage that occurred when a motorist struck a medical building. We address the question whether, on these facts, the defendant is estopped from asserting the one-year limitation period provided by statute for bringing this lawsuit. We hold that the doctrine of estoppel does apply, and we thus reverse the decision of the Court of Appeals and remand this matter to the circuit court for further proceedings.
i
On February 14, 1992, David W. Ward of Flushing crashed his vehicle into a medical building on Villa Lind Parkway in Flint. One of the offices that suffered extensive smoke damage was Family Urology, PC., which was insured by plaintiff Cincinnati Insurance Company.
In early March 1992, less than three weeks after the incident, Cincinnati claims specialist Timothy A. Kapala contacted Mr. Ward’s no-fault automobile insurer, defendant Citizens Insurance Company. In a letter to adjuster Virginia Jenkins of Citizens, Mr. Kapala explained that he was writing “to inform you of our insured’s loss and a future subrogation claim.” Referring to a telephone conversation with Ms. Jen kins the previous day, Mr. Kapala said that he would be providing additional information “[o]nce our insured’s loss has been documented . . . .” The letter stated that copies had been sent to Cincinnati’s home office and to a man named Tom Zimmerman.
The next document of significance to this appeal is a November 1992 letter from Mr. Kapala to Thomas Griggs, a branch claims manager for Citizens. This matter had been reassigned to him when Ms. Jenkins was transferred earlier in the year. In his letter, Mr. Kapala mentioned a telephone conversation with Mr. Griggs the previous day, and noted that Family Urology already had submitted documentation of approximately $315,000 in damages. Mr. Kapala said that Cincinnati’s policy limit for contents was $206,000, and that the insurer was in the process of determining both Family Urology’s contents loss and its loss due to business interruption. The letter concluded:
Once I have all the final figures and documentation, I will present it to you for consideration.
As before, the letter indicated that copies had been sent to Cincinnati’s home office and to Mr. Zimmerman.
In January 1993, Mr. Kapala again contacted Mr. Griggs by letter. He noted that Family Urology’s contents claim had been settled, but that the business-interruption claim was outstanding and “currently being addressed by our CPA.” Mr. Kapala referred to attached documentation for Family Urology’s damage claim of $315,963.18, and added:
To date we have made payment in the amount of $210,400.00 minus the salvage recovery of $3,000.00 for a net payment by the Cincinnati Insurance Company in the amount of $207,400.00. As mentioned previously, we asked that you review the attached documentation and forward payment to the undersigned made payable to the Cincinnati Insurance Company. Once we have the documentation for the business interruption loss, we will forward to you for consideration and payment.
Once again, the letter indicated that copies had been sent to the home office and to Mr. Zimmerman.
Mr. Kapala testified that he called Mr. Griggs to inquire about this case a couple of weeks after sending the January letter. It was then that Mr. Griggs said that Citizens did not want to handle the claim piecemeal, i.e., to handle the contents-damage part separately from the business-interruption loss.
Mr. Kapala sent yet another letter to Mr. Griggs in May 1993, which referred to earlier correspondence and a telephone conversation the previous week. Explaining that the final figures had been received regarding the business-interruption loss, Mr. Kapala requested that a check be forwarded to Cincinnati in the amount of $231,233. As before, there was a notation that copies had been sent to Cincinnati’s home office and to Mr. Zimmerman.
Another letter was sent by Mr. Kapala to Mr. Griggs in June 1993, asking when payment would be made. This was followed by a July 1993 letter that referred to a telephone conversation eleven days earlier between the two men, and asked to be advised within ten days regarding “your position as to payment of our subrogation claim.” Once again, each of these let ters stated that copies had been sent to the home office and to Mr. Zimmerman.
In an August 24, 1993, telephone conversation, Mr. Griggs advised Mr. Kapala that Citizens was not going to pay the subrogation claim. Mr. Griggs explained in a letter six days later that Citizens , was relying on MCL 500.3145(2); MSA 24.13145(2), which provides that an action for benefits due to property damage must be commenced within one year of the accident that gives rise to the claim.
Cincinnati initiated this lawsuit against Citizens in September 1993. The two-count complaint set forth a basis for the subrogation claim, and asserted that Citizens was estopped to rely on the statute of limitations because of Cincinnati’s timely filing of its claim and the ongoing discussions concerning it.
Following a hearing on Citizens’ subsequent motion for summary disposition, the circuit court granted the motion. Although the order does not cite a particular provision of MCR 2.116(C), we note that Citizens had requested summary disposition under subrules (7) and (10).
Cincinnati filed a claim of appeal with the Court of Appeals. In an unpublished opinion per curiam, the Court of Appeals affirmed by a vote of two to one.
Cincinnati has applied to this Court for leave to appeal.
n
Section 3145 of the Insurance Code of 1956 establishes the period for seeking recompense for property damage under Michigan’s no-fault automobile insurance act. Under § 3145(2):
An action for recovery of property protection insurance benefits shall not be commenced later than 1 year after the accident. [MCL 500.3145(2); MSA 24.13145(2).[ ]
Cincinnati argues that although its action against Citizens in circuit court was not begun until nineteen months after the accident, the action was timely because the statutory period was tolled from the time it submitted its property damage claim in mid-January 1993 until Citizens denied the claim in late August 1993. The circuit court was unpersuaded, as was the Court of Appeals. The majority explained:
In United States Fidelity & Guaranty Co v Amerisure Ins Co, 195 Mich App 1; 489 NW2d 115 (1992), this Court held that notice to a no-fault insurer of a claim for property protection benefits does not toll the running of the statutory one-yeax period of limitation for bringing an action for such benefits. This Court is bound under Administrative Order No. 1994-4, 445 Mich xci, to follow the United States Fidelity decision, and, in any event, we agree with its holding. Accordingly, we find no error in the trial court’s conclusion that plaintiff’s action was time-barred.
Nor was the majority persuaded that this is an instance in which an insurer should be estopped from asserting the statute of limitations as a defense:
Both equitable estoppel and promissory estoppel require justifiable reliance on the part of the party asserting estoppel. See, e.g., Soltis v First of America Bank-Muskegon, 203 Mich App 435, 444; 513 NW2d 148 (1994); Schipani v Ford Motor Co, 102 Mich App 606, 612-613; 302 NW2d 307 (1981). Here, as noted by the trial court, the deposition testimony of plaintiff’s representative unequivocally indicated that plaintiff was acting on its own mistaken understanding of the law, and not on any representation made by defendant.[ ]
Cincinnati urges this Court to reject the reasoning of the Court of Appeals majority and adopt the views of the dissenting judge. The dissent concluded that USF&G is distinguishable on important facts, and that this is an appropriate case for applying the judicial doctrine of tolling. As for whether Citizens should be estopped from asserting the statute of limitations, the dissent said:
[W]hile Kapala did testify that he understood the statute to require that he submit a claim within one year, and not that he file suit within one year, he also testified that the reason he felt he had no problem with the statute of limitations at the time was because Citizens had paid the other claim arising from the same incident and because Griggs indicated that it was just a matter of providing all the documentation for review. I believe there were genuine issues of material fact as to the estoppel issue.
m
In Lothian v Detroit, 414 Mich 160, 176; 324 NW2d 9 (1982), this Court emphasized that the doctrine of equitable estoppel is a judicially created exception to the general rule that statutes of limitation run without interruption. It is essentially a doctrine of waiver that extends the applicable period for filing a lawsuit by precluding the defendant from raising the statute of limitations as a bar.
One who seeks to invoke the doctrine generally must establish that there has been (1) a false representation or concealment of a material fact, (2) an expectation that the other party will rely on the misconduct, and (3) knowledge of the actual facts on the part of the representing or concealing party. This Court has been reluctant to recognize an estoppel absent intentional or negligent conduct designed to induce a plaintiff to refrain from bringing a timely action. Id. at 177. Negotiations intended to forestall bringing an action have been considered an inducement sufficient to invoke the doctrine, however. Friedberg v Ins Co of North America, 257 Mich 291; 241 NW 183 (1932).
Mr. Kapala testified by deposition that when he contacted Citizens in late January 1993 to check on the status of Cincinnati’s claim, he was informed by Mr. Griggs that Citizens wanted to deal with the whole matter — contents loss and business-interruption loss — at one time. The statute of limitations was not discussed.
Mr. Griggs testified essentially the same. He recalled telling Mr. Kapala that Citizens preferred not to handle claims piecemeal. The intent was not to delay the processing of the claim, but to get the entire matter reviewed at once, Mr. Griggs explained. He also said there was “a strong possibility” that Mr. Kapala was led to believe documents he had submitted were going to be reviewed to determine whether the loss was appropriate.
It would be unjust to allow Citizens to assert the statute of limitations where Cincinnati, through claims specialist Kapala, acted in apparent good faith and for the convenience of Citizens to defer his demand for payment until Family Urology’s total loss had been documented. The only alternative was for Cincinnati to initiate a lawsuit within the limitation period. One of the important reasons for enacting the no-fault system, however, was to reduce automobile-accident litigation. Lewis v DAIIE, 426 Mich 93, 98-103; 393 NW2d 167 (1986).
Moreover, this is not an instance where Citizens was left up in the air at any point regarding the nature of Cincinnati’s claim or a close approximation of the amount. Mr. Kapala promptly notified Citizens of Cincinnati’s subrogation claim within three weeks of the February 14, 1992, accident. After Citizens reassigned its file to Mr. Griggs, Mr. Kapala twice advised him in writing that Family Urology had submitted documents substantiating a loss of about $315,000, on a policy limit of $206,000. Mr. Kapala requested remittance of $207,400 in his January 1993 letter. This was within the limitation period and included the expense of Family Urology’s temporary move, minus the return on salvage.
Noticeably absent from the record is any indication that the manner of processing this claim by Cincinnati was unacceptable to Citizens. To the contrary, the record indicates that Cincinnati proceeded as it did at the request of Citizens. Mr. Kapala’s several letters refer to telephone conversations with Ms. Jenkins and Mr. Griggs, and we have located no return correspondence from anyone at Citizens refuting any of Mr. Kapala’s representations.
Further, Mr. Griggs testified that Ms. Jenkins’ only initial question about the claim was whether motorist Ward’s apparently intentional act of crashing into the building would affect coverage. Mr. Griggs advised her that it would not because Mr. Ward was the policyholder rather than the claimant. Mr. Griggs, who took over the file in April 1992, also testified that he was aware of Cincinnati’s difficulty in adjusting the loss with Family Urology.
In short, the record contains ample evidence that Cincinnati (through Mr. Kapala) was justified in relying, and did rely, on the representations of Citizens (through Mr. Griggs) that the subrogation claim would be processed without difficulty, once all the documentation was complete. The fact that Citizens did not intend to honor its representations is demonstrated by the fact that it did not honor them. It is not significant whether the final decision was made by Mr. Griggs or another Citizens’ employee, as long as both the intent and the decision can be imputed to Citizens.
IV
We agree with the dissenting judge in the Court of Appeals that summary disposition was not appropriate. Where Cincinnati had submitted a timely claim to Citizens for the primary contents loss, and the two insurers had agreed to cooperate regarding the processing of the matter in its entirety, Citizens was estopped from asserting the statute of limitations as a bar to Cincinnati’s circuit court action. Because of our resolution of the estoppel issue, we need not address the question of judicial tolling.
For the reasons given, we reverse the judgments of the Court of Appeals and the circuit court and remand this matter to the circuit court for further proceedings. MCR 7.201(F)(1).
Mallett, C.J., and Brickley, Cavanagh, Riley, and Weaver, JJ., concurred.
Mr. Kapala testified at Ms deposition that Mr. Zimmerman was a field claims manager for Cincinnati.
Issued March 5, 1996 (Docket No. 176801).
Subsection (1) pertains to actions for recovery of personal protection insurance benefits. While enacting the same one-year period of limitation as in subsection (2), the Legislature made the triggering event under subsection (1) either the date of the accident or the date that written notice of injury was furnished to the insurer, provided the notice was given within one year of the accident.
Mr. Kapala testified at his deposition that he thought an insurer had one year from the date of an accident to submit a subrogation claim to another insurer, not one year to file a lawsuit. | [
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Mallett, C.J.
In this choice of law case, an Ontario driver and an Ohio driver collided while on a Michigan highway. Plaintiffs filed suit in Michigan two years and twenty-two days after the accident. Both Ohio and Ontario have two-year statutes of limitations, while Michigan has a three-year statute of limitations. The trial court applied Ontario’s statute of limitations, holding that Michigan had no interest in the litigation. We reverse and hold that because neither Ohio nor Ontario have an interest in having its law applied, Michigan law will apply.
I
FACTS AND PROCEEDINGS
The facts in this case are fit for a law school choice of law examination. On August 14, 1989, two trucks collided on Interstate 75 in Monroe County, Michigan. The driver of one truck, Larry G. Sutherland, is a resident of Ohio and was operating a truck licensed in Ohio. The driver of the other truck, Gregory Zavitz, is a citizen of Ontario, Canada. He was employed by Kennington Truck Service, an Ontario corporation. Zavitz’ truck was owned by Elgin Leasing, which had leased the truck to Canadian Timkin. Both Elgin Leasing and Canadian Timkin are Ontario corporations.
On September 5, 1991, two years and twenty-two days after the accident, Mr. Sutherland and his wife sued defendants in Monroe Circuit Court, alleging negligence. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that the court should apply either Ohio’s or Ontario’s statute of limitations. Both of these jurisdictions bar negligence actions filed more than two years after the cause of action arose. In response, plaintiffs argued that the case should be governed by Michigan’s three-year statute of limitations.
The trial court granted the motion for summary disposition. Applying “interest analysis,” the court found that Michigan had no interest in the outcome of this litigation because none of the parties are Michigan citizens. The court further found that Ontario had an interest in protecting its citizens from stale claims. On this basis, the court held that Ontario’s two-year statute of limitations would apply.
In an unpublished opinion per curiam, the Court of Appeals affirmed. The Court stated:
The trial court did not err in applying the Ontario statute. The trial court properly conducted an interest analysis to decide which state had the greatest interest in applying its statute of limitation. Although Michigan law once favored application of the law of the forum to procedural matters, such is no longer the case. Recent decisions have criticized the distinction between procedure and substance for conflict of law analysis, recognizing that it has often been used in a manipulative manner. See Olmstead v Anderson, 428 Mich 1, 28; 400 NW2d 292 (1987); Sexton v Ryder Truck Rental, Inc, 413 Mich 406, 419-423; 320 NW2d 843 (1982); Mahne v Ford Motor Co, 900 F2d 83, 87 (CA 6, 1990); Penwest Development Corp v Dow Chemical Co, 667 F Supp 436, 442 (ED Mich, 1987); Farrell v Ford Motor Co, 199 Mich App 81; 501 NW2d 567 (1993). Neither party in this action is a citizen of this state, both parties are residents of states that have a two-year statute of limitations, and the statute of limitation issue is not an issue involving conduct. We find no error in the trial court’s analysis.
We granted leave to appeal on plaintiffs’ motion for reconsideration.
II
THE CHOICE OF LAW “REVOLUTION”
Before 1963, American choice of law jurisprudence for tort cases was uniform. All fifty states adhered to the doctrine of lex loci delicti, or the law of the place of the wrong, as espoused by Professor Beale in the First Restatement on Conflicts of Law. Under this doctrine, tort cases were governed by the law of the jurisdiction in which the wrong occurred. Thus, a suit by Michigan citizens who were involved in an accident in another jurisdiction would be governed by the law of the other jurisdiction, even if the suit were brought in this state. The primary advantage of this rule was that conflicts of law questions were easy to resolve, at least in theory. Parties in litigation could usually predict what law would govern the case by determining the state where the last act necessary to create liability occurred.
While all states purported to adhere to the rule of lex loci delicti in the first half of this century, many state courts expressed discomfort with the rigidity of the rule. In order to mitigate what were seen as harsh results, courts developed several “escape devices” to the lex loci delicti rule. For example, a forum court would decline to apply the law of another jurisdiction if that law conflicted with an important public policy of the forum state. Courts would also characterize issues as “procedural,” instead of substantive, in order to apply the law of the forum. While the appli cation of these escape devices avoided what were seen as unjust results, they also undermined the predictability of the lex loci delicti rule.
In 1963, New York became the first state to explicitly abandon the traditional approach to conflicts of law. In the seminal case of Babcock v Jackson, 12 NY2d 473, 484; 240 NYS2d 743; 191 NE2d 279 (1963), the New York Court of Appeals stated that the traditional rule “fail[ed] to take into account essential policy considerations and objectives . . . .” Instead of adhering to the lex loci delicti rule, the New York Court of Appeals asserted that it would consider the contacts of the tort with each jurisdiction and the interests that each government had in having its law applied.
Babcock sparked a “revolution” in conflicts of law jurisprudence. Freed from the monolithic adherence to the traditional rule, state after state revisited its conflicts rules and expressed its frustration with the lex loci delicti doctrine. By 1980, thirty-one states had abandoned the traditional rule. Currently, only ten states still purport to apply the lex loci delicti rule.
While Babcock slew the lex loci delicti dragon, it has not produced a consensus on how to deal with conflicts of law questions in the absence of the traditional rule. On lex loci’s grave, several competing theories have sprouted. The most prominent of these “modem” theories is “interest analysis,” an approach that the late Brainerd Currie has advocated. Under this approach, courts examine the governmental interests of the involved jurisdictions. If the forum state has no interest in having its law applied but the other jurisdiction does, the law of the other jurisdiction should be chosen. If the forum state has an interest and the other does not, the court should choose forum law. If both the forum state and the alternate have an interest in having its law applied and the laws conflict, then the court should apply the forum’s law. If neither jurisdiction is interested, the court should again apply forum law.
While several states have adopted interest analysis, it competes for attention with other theories. Under Professor Leflar’s “choice influencing considerations,” for example, courts ask which jurisdiction has the “better rule of law.” The approach that the Second Restatement on the Conflicts of Law proposes, on the other hand, would require courts to determine which jurisdiction has the “most significant relationship” to the tort. At least one state, Kentucky, has adopted a blanket lex fori approach, in which forum law will always be applied.
Proponents of these various approaches have engaged in a vigorous debate over the advantages and disadvantages of each approach. As Justice Riley has noted, conflicts of law has become a fecund milieu for academic scholarship. While this debate is illuminating, much of it ignores the fact that, in practice, all the modem approaches to conflicts of law are relatively uniform in the results they produce. Professor Borchers has surveyed cases that purport to apply the various modem approaches and concluded that none of the modem approaches differ significantly from the others in three important respects: the percentage of times that courts apply forum law, the percentage of times that plaintiffs recover, or the percentage of times that local parties prevail.
In fact, Professor Borchers’ research shows that each of the modem approaches tend to favor significantly the application of forum law. Applying the modem approaches, courts select forum law between approximately fifty-five and seventy-seven percent of the time. This has led one commentator to note:
On reading a substantial number of these cases over the years, one has a feeling that the courts may not be doing what they purport to do, that is, employing the modem choice-of-law theories in a neutral way to determine what law applies. Rather, one suspects that courts employing the new theories have a very strong preference for forum law that frequently causes them to manipulate the theories so that they end up applying forum law.[ ]
Likewise, Professor Sedler has noted:
[T]he results in actual cases that arise are not likely to differ depending on which particular “modem” approach a court is purportedly applying or on whether a court even commits itself to a particular approach. Moreover, there seems to be little dispute among the commentators that the courts are generally reaching functionally sound and fair results in the cases coming before them for decision.[ ]
This preference for forum law is hardly surprising. The tendency toward forum law promotes judicial economy: judges and attorneys are experts in their state’s law, but have to expend considerable time and resources to learn another state’s law.
Thus, on surveying current conflicts of law jurisprudence, one can reasonably conclude that only two distinct conflicts of law theories actually exist. One, followed by a distinct minority of states, mandates adherence to the lex loci delicti rule. The other, which bears different labels in different states, calls for courts to apply the law of the forum unless important policy considerations dictate otherwise.
m
THE DEVELOPMENT OF MICHIGAN’S CHOICE OF LAW JURISPRUDENCE
The evolution of Michigan’s choice of law jurisprudence has paralleled national trends. In Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969), this Court declined to join the emerging conflicts of law movement. In adhering to the doctrine of lex loci delicti, the Court asserted that
the quagmire of unanswered and perceivably unanswerable questions arising out of the proposed new doctrine appears less attractive than our admittedly hard and fast — and occasionally unjust, it is true — -rule that the law of the place of the wrong is applied when the forum is a Michigan court. [Id. at 516.]
Despite adherence to the traditional rule, Michigan courts continued to employ various “escape devices” in order to mitigate harsh consequences. See, e.g., Sweeney v Sweeney, 402 Mich 234; 262 NW2d 625 (1978); Shaheen v Schoenberger, 92 Mich App 491; 285 NW2d 343 (1979); Branyan v Alpena Flying Service, Inc, 65 Mich App 1; 236 NW2d 739 (1975). In these cases, courts readily found public policy reasons to displace the lex loci delicti with forum law.
A majority of this Court finally abandoned the lex loci delicti rule in the companion cases of Sexton v Ryder Truck Rental and Storie v Southfield Leasing, supra. After exhaustively reviewing the history of choice of law jurisprudence in Michigan, the Court noted that the purported advantages of the traditional rule were, in practice, nonexistent. The Court stated:
Review of the arguments for lex loci and the alternate choice-of-law methodologies convinces us that slavish devotion to the rigidities of lex loci no longer is either the reasonable policy to follow or the generally accepted law in the United States. As a matter of fact, the courts of Michigan have frequently departed from lex loci in individual instances. [Sexton, supra at 425.]
While Sexton marked the end of the lex loci delicti rule in Michigan, it did not produce a consensus on the appropriate choice of law methodology to be applied. Justice Williams’ opinion expressly declined to embrace any of the “modem” approaches to conflicts of law. Id. at 433. Instead, his opinion held that forum law would be applied when Michigan residents or corporations doing business in Michigan are involved in accidents in another state and appear as plaintiffs and defendants in Michigan courts. Id.
Justice Levin, on the other hand, wished to create a presumption in favor of forum law for all tort cases involving personal injury or property damage. He stated:
[W]e should go the distance and declare that Michigan law will apply in all personal injury and property damage actions without regard to whether the plaintiffs and defendants are all Michigan persons unless there is some compelling reason for applying the law of some other jurisdiction, and that merely because the injury arose out of an occurrence in another state is not such a reason. [Id. at 442 (Levin, J., concurring).]
Because Sexton did not produce a clear majority, lower courts struggled with its application. Some courts read Sexton to apply only to cases in which all the parties are Michigan residents and adhered to the lex loci delicti rule for all other cases. Other courts have read Sexton to require a balancing of interests of the various states in the event that one of the parties is not from Michigan.
This Court clarified much of the confusion surrounding Sexton in Olmstead v Anderson, supra. Olmstead involved an automobile accident in Wisconsin between a Michigan driver and two Minnesota residents. The plaintiff, the administratrix of the estates of the deceased Minnesota residents, originally filed suit in Minnesota, but this suit was dismissed for improper venue and lack of jurisdiction. The plaintiff then filed suit in Michigan.
The choice of law issue was vitally important in Olmstead, because Wisconsin law at the time limited recovery in wrongful death cases to $25,000. Neither Michigan nor Minnesota limited recoverable damages at that time. In addressing the choice of law question, this Court began with the presumption that Michigan law would apply. Id. at 24, 30-31. The Court then asked whether “reason requires that foreign law supersede the law of this state.” Id. at 24.
In analyzing whether a rational justification for displacing Michigan law existed, the Court in Olmstead reviewed Wisconsin’s interests in having its law applied. The Court noted that neither party was a resident of Wisconsin, and that Wisconsin therefore did not have any interest in seeing its limitation of damages provision applied to this case. The Court also noted that because the insurance companies of both parties knew of the possibility of unlimited liability, no unfairness would result from the application of Michigan law. Id. at 25. Because Wisconsin did not have an interest in having its law applied, the lex fori presumption was not overcome, and the Court did not undertake an analysis of Michigan’s interests.
iv
ANALYSIS
Olmstead provides the analytical framework for deciding this case. That is, we will apply Michigan law unless a “rational reason” to do otherwise exists. In determining whether a rational reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine if any foreign state has an interest in having its law applied. If no state has such' an interest, the presumption that Michigan law will apply cannot be overcome. If a foreign state does have an interest in having its law applied, we must then determine if Michigan’s interests mandate that Michigan law be applied, despite the foreign interests. Id. at 24, 29-30.
Ohio and Ontario are the only two foreign jurisdictions that potentially have an interest in having their law applied in this case. Ohio, where the plaintiffs reside, has a two-year statute of limitations for these types of actions.
However, a court could not apply Ohio law to this case without violating the defendants’ due process rights. As Justice Brennan stated in Allstate Ins v Hague, 449 US 302, 313; 101 S Ct 633; 66 L Ed 2d 521 (1981), in order for a court to choose a state’s law, “[the] State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” In this case, the only contact that Ohio has with this litigation is that plaintiffs are Ohio residents. The United States Supreme Court has stated that the plaintiff’s residence, with nothing more, is insufficient to support the choice of a state’s law. Home Ins Co v Dick, 281 US 397, 408; 50 S Ct 338; 74 L Ed 926 (1930); see also John Hancock Mut Life Ins Co v Yates, 299 US 178; 57 S Ct 129; 81 L Ed 106 (1936).
Because Ohio does not have an interest in seeing the court apply its law, Ontario is the only remaining candidate. Ontario, like Ohio, has a two-year statute of limitations. Defendants claim that because Ontario law would benefit the Ontario defendants by barring the claim, Ontario has an interest in having its statute of limitations applied. Certainly, one purpose of a statute of limitations is to protect defendants from stale claims. We do not agree, however, that Ontario has an interest in protecting the defendants from stale claims in this situation. In fact, according to Canadian and Ontario law, Ontario has an interest in having Michigan’s statute of limitations applied in this case.
In the companion cases of Tolofson v Jensen and Lucas v Gagnon, 120 DLR4th 289 (1994), the Supreme Court of Canada adopted the lex loci delicti rule and held that Canadian courts must apply the substantive law of the jurisdiction where the tort occurred. The court also stated that statutes of limitation are substantive, not procedural, for choice of law purposes. Tolofson, supra. Thus, under Tolofson, Canadian courts must apply the statute of limitations of the jurisdiction in which the tort occurred.
Tolofson involves residents of British Columbia who were injured in an automobile accident in Saskatchewan, and thus does not present an international choice of law problem. Justice La Forest, speaking for the court, noted that an exception to the lex loci delicti rule may exist in international tort litigation if application of the law of a foreign country “could give rise to [an] injustice.” Id. at 308. Justice La Forest continued, however, to state that he could only “imagine few cases where this would be necessary.” Id.
We seriously doubt that an Ontario court would find that the application of Michigan’s three-year statute of limitations in this case would “give rise to injustice.” Certainly, no Ontario court has expressed qualms about applying American law. In Ostronski v Global Upholstery Co, 1995 Ont C J LEXIS 4668, for example, the Ontario Court of Justice applied Pennsylvania’s statute of limitations to a tort suit commenced in Ontario. Ontario’s courts have even applied American law when that law is detrimental to Canadian litigants. See In re Hanlan, 1996 Ont C A LEXIS 754, rev’g Hanlan v Sernesky, 1996 Ont C J LEXIS 2538.
Thus, had plaintiffs filed this suit in Ontario, Ontario’s courts would have applied Michigan’s three-year statute of limitations. Because even Ontario courts would not allow the defendants to escape this claim through application of Ontario law, we do not see how Ontario can have an interest in having Michigan courts apply Ontario law.
Therefore, no foreign state has an interest in having its law applied to this case. The lex fori presumption is not overcome, and we need not evaluate Michigan’s interests. Olmstead at 30. Michigan’s three-year statute of limitations will apply to this case.
v
For these reasons, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings.
Cavanagh, Boyle, and Weaver, JJ., concurred with Mallett, C.J.
Ohio’s statute of limitations is Ohio Rev Code Ann 2305.10. Ontario’s is Ch H.8, Ont Rev Stat 206.
MCL 600.5805(8); MSA 27A.5805(8). Because the action accrued within the State of Michigan, Michigan’s borrowing statute, MCL 600.5861; MSA 27A.5861, does not apply. MCL 600.5861; MSA 27A.5861 states:
An action based upon a cause of action accruing without this state shall not be commenced after the expiration of the statute of limitations of either this state or the place without this state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of this state the statute of limitations of this state shall apply. This amendatory act shall be effective as to all actions hereinafter commenced and all actions heretofor commenced now pending in the trial or appellate courts.
Issued November 3, 1994 (Docket No. 152177).
See, e.g., Kaiser v North, 292 Mich 49; 289 NW 325 (1939) (applying Ontario’s guest statute to a suit by Michigan plaintiffs who were involved in an automobile accident in Ontario).
Scoles & Hay, Conflict of Laws (2d ed), § 17.2, pp 570-572.
Id., § 17.7, pp 577-580.
Babcock, supra at 482. In Babcock, the plaintiff and the defendant were taking a weekend trip together from New York to Ontario. Both parties were residents of New York, and the automobile was garaged and licensed in New York. While in Ontario, the defendant lost control of the car and crashed into a wall.
The plaintiff sued in New York. Under Ontario’s guest statute, the suit would have been barred. The New York Court of Appeals, however, stated that Ontario had no interest in seeing its law applied to this case, because all the parties were from New York.
These states are Alabama, Georgia, Kansas, Maryland, New Mexico, North Carolina, South Carolina, Virginia, West Virginia, and Wyoming. Solimine, The impact of Babcock v Jackson: An empirical note, 56 Alb L R 773 (1993).
Currie, Selected Essays on the Conflict of Laws, pp 177-187.
Leflar, Choice-influencing considerations in conflicts law, 41 NYU L R 267, 282 (1966). Three states, Minnesota, New Hampshire, and Wisconsin have adopted this approach. See Milkovich v Saari, 295 Minn 155; 203 NW2d 408 (1973); Clark v Clark, 107 NH 351; 222 A2d 205 (1966); Zelinger v State Sand & Gravel Co, 38 Wis 2d 98; 156 NW2d 466 (1968).
Restatement Conflicts of Law, 2d, § 145, p 414.
Foster v Leggett, 484 SW2d 827 (Ky App, 1972).
Olmstead v Anderson, supra at 9, n 6.
Borchers, The choice-of-law revolution: An empirical study, 49 Wash & Lee L R 357 (1992).
According to Professor Borchers’ research, the Second Restatement’s approach results in the application of forum law fifty-five percent of the time, with a margin of error of five percent. Interest analysis results in forum law sixty-three percent of the time, with a margin of error of ten percent. Leflar’s approach yields forum law in sixty-five percent of cases, with a margin of error of eleven percent The lex fori rule yields lex fori in seventy-seven percent of cases, with a twenty-three percent margin of error. When one considers the margins of error, one can conclude that there is no statistically significant difference between the modern approaches in terms of the application of forum law. Id., n 14 supra at 374-375.
McDougal, The real legacy of Babcock v Jackson: Lex fori instead of lex loci delicti and now it’s time for a real choice-of-law revolution, 56 Alb L R 795, 797 (1993).
Sedler, Choice of law in Michigan: Judicial method and the policy-centered conflict of laws, 29 Wayne L R 1193, 1198-1199 (1983).
This opinion was also signed by Justices Levin and Moody.
See, e.g., Severine v Ford Aerospace & Communications Corp, 118 Mich App 769; 325 NW2d 572 (1982); Hamann v American Motors Corp, 131 Mich App 605; 345 NW2d 699 (1983).
See, e.g., Bennett v Enstrom Helicopter Corp (On Reconsideration), 686 F2d 406 (CA 6, 1982); Vogh v American Int'l Rent-A-Car, Inc, 134 Mich App 362, 368; 350 NW2d 882 (1984); Hampshire v Ford Motor Co, 155 Mich App 143; 399 NW2d 36 (1986).
Ohio Rev Code Ann 2305.10.
The “significant contacts” required for choice of law purposes is similar to the “minimum contacts” required for jurisdictional purposes. That is, International Shoe Co v Washington, 326 US 310, 316; 66 S Ct 154; 90 L Ed 95 (1945), holds that a state may not exercise jurisdiction over a defendant unless the defendant and state have “minimum contacts” so that “traditional notions of fair play and substantial justice” are not offended.
The United States Supreme Court has never determined the relationship between the “significant” contacts required for choice of law and “minimum” contacts required for jurisdiction. Scoles & Hay, n 5 supra, §§ 3.28-3.29, pp 96-101; Martin, Personal jurisdiction and choice of law, 78 Mich L R 872 (1980). However, at least one commentator has argued that the standards should be the same. Id. Intuitively, at least as many contacts should be required for choice of law purposes as for jurisdictional purposes. It would make little sense to say that state X does not have enough contacts to exercise jurisdiction, but yet allow state Y to apply state X’s law.
Ch H.8, Ont Rev Stat 206.
The Supreme Court of Canada has superintending control over the interpretation of all federal and provincial laws. Tolofson, supra. Thus, choice of law jurisprudence is uniform throughout the provinces. This stands in sharp contrast to the American experience, where the United States Supreme Court has shown a deep reluctance to federalize choice of law. See Sun Oil Co v Wortman, 486 US 717; 108 S Ct 2117; 100 L Ed 2d 743 (1988).
Interestingly, Canadian choice of law jurisprudence is moving in exactly the opposite direction from American choice of law jurisprudence. While American courts are moving from a lex loci delicti standard to lex fori, Canadian courts have moved from lex fori to lex loci delicti. See Tolofson, supra.
See also Abb Power Generation v CSX Transportation, 1996 Ont C J LEXIS 1029 (stating that Ohio tort law will apply to a suit commenced in Ontario).
In looking at Ontario’s statute of limitations, we in no way intend to breathe life into the doctrine of renvoi. Under renvoi, once a court determines that it will apply the law of another jurisdiction, it applies the entire law of that jurisdiction, including its choice of law rules. Thus, the choice of law rules of the chosen state could point the court to a third state or back to the forum state. Renvoi creates the potential for circular analysis and has been criticized by American courts. See, e.g., Haumschild v Continental Casualty Co, 7 Wis 2d 130, 142; 95 NW2d 814 (1959).
In this case, we do not engage in renvoi because we decline to apply any of Ontario’s law. We look at Ontario’s choice of law rules merely to determine Ontario’s interests. | [
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Per Curiam.
We are required in this property dispute to determine whether the defendants violated recorded subdivision restrictions when they built their home in the Village of Beverly Hills, Oakland County, in 1991. We hold that there was no breach, and we thus reverse the decision of the Court of Appeals and reinstate the decision of the circuit court.
i
In 1967, a twelve-lot subdivision known as Lincoln Green was platted in the Village of Beverly Hills in Oakland County. A restriction agreement for the subdivision was duly filed by developer Gerald J. Shannon with the county Register of Deeds.
By 1974, houses had been built on all twelve lots. Each had elements of traditional colonial styling, including pitched roofs,, horizontal siding, brick facades, and double-hung windows. All of them faced Long Bow Court, which was the only street in Lincoln Green. Long Bow Court ended at Fourteen Mile Road on the north and formed a cul-de-sac circle on the south.
The land directly southeast of the cul-de-sac circle was not part of Lincoln Green. Rather, this property belonged to a large condominium project that was constructed in the mid-1980s. The parcel immediately adjacent to Lincoln Green had not been built upon, however.
In 1987, Lincoln Green homeowners were notified in writing that the owners of the condominium property were planning to construct new homes on the land abutting Lincoln Green. Following a series of public hearings, the condominium developers agreed to split off from their acreage a parcel facing Long Bow Court, next to the Lincoln Green lot that was the furthest southeast. The developers further agreed that this would be a single-family site, and that it would be subject to the restriction agreement recorded by Mr. Shannon in 1967.
The defendants signed an offer in 1987 to purchase the parcel on the condominium property from the owner, Oak Pointe, Inc. There is no dispute that they knew at the time of purchase in 1988 that the site was subject to the Lincoln Green restriction agreement.
n
Several of the twenty-five provisions in the 1967 restriction agreement are relevant to this appeal. Under the heading “Developer,” paragraph 1 states:
For the purpose of this Agreement, Gerald J. Shannon, whose principal place of business is located at 2685 Woodward, Bloomfield Hills, Michigan, or his successors and assigns, is hereby appointed, designated and hereinafter referred to as the “Developer.”
Paragraphs 17 and 18, entitled “Architectural Control Committee” and “Committee Approval,” respectively, are at the core of the dispute. Paragraph 17 states:
The “Developer” heretofore designated, his successors and assigns, shall constitute the Architectural Control Committee. The Architectural Control Committee shall have authority to pass on plans and specifications and otherwise guide the development of the subdivision as planned and restricted herein.
Paragraph 18 is a lengthy provision, the essence of which is that written approval from the committee is required before construction of houses and such things as fences and decks. The following language has been of particular concern:
The committee shall have the right to refuse to approve any such plans or specifications or grading plans which are not suitable or desirable in its opinion for aesthetic or other reasons. In so passing upon such plans, specifications and grading plans, it shall have the right to take into consideration suitability of the proposed buildings or other structure to be built on the site upon which it is proposed to erect the same, the harmony thereof with the surroundings and the effect of the building or other structure as planned on the outlook from adjacent or neighboring property. It is understood that the purpose of this paragraph is to cause the subdivision to develop into a beautifully, harmonious, private residence section and that the Architectural Control Committee shall not be arbitrary in its decisions. [Emphasis added.]
Disagreements under paragraph 18 are to be resolved through “arbitration by competent architects in the usual manner.” In the event of a violation of the restriction agreement, paragraph 19 gives “the parties” the right to summarily remove the offending structure, at the owner’s expense, in addition to “all other remedies.”
Paragraph 20 provides that the covenants are to last twenty-five years from the date the agreement was recorded, “after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.” Under paragraph 21, the failure to enforce a covenant is not a waiver of the right to do so.
Finally, under the heading “Assignment,” paragraph 24 provides:
Any or all of the rights, powers and obligations, title, easements and estates reserved or given to the parties in this agreement, the “Developer” or the Architectural Control Committee, may be assigned to any corporation or association, composed of one-half (Va) or more of the owners of property in said plat, that will agree to assume said rights, powers, duties and obligations and carry out and perform the same; any such assignment or transfer shall be made by appropriate instrument in writing in which the assignee or transferee shall join for the purpose of evidencing its consent to the acceptance of such rights and powers, and such assignee or transferee shall thereupon have the same rights and powers and be subject to the same obligations and duties as are herein given to and assumed by the parties hereto, and the parties hereto thereupon being released therefrom. When all of the lots in said plat have been sold by the parties hereto, upon demand by parties hereto a corporation or assiciation [sic] of the owners of lots in said plat shall be formed which shall assume said rights, powers, duties and obligations and carry out and perform the same, and the parties hereto thereupon shall be released. [Emphasis added.]
HI
In late 1990 and early 1991, the defendants began preparations to build a home on their site. Defendant Amarjit S. Chawney, a licensed architect, sought through the Village of Beverly Hills and the Oakland County Register of Deeds to locate the subdivision committee or association that was authorized to approve the project.
Donald Smith, the building official for the village and a licensed architect, referred Mr. Chawney to the homeowners’ association for a neighboring subdivi sion. According to village records, the Nottingham Forest Homeowners’ Improvement Association had jurisdiction over all lots on Long Bow Court, including the defendants’ property. Mr. Smith later testified that the village had maintained a roster of homeowner associations for fifteen years, and that the list was printed on an annual calendar sent to each resident. The village had no record of a Lincoln Green subdivision or homeowners’ association.
In the spring of 1991, the defendants submitted their plans to a woman named Patricia Burch, who had been identified by Mr. Smith as the appropriate contact in the Nottingham Forest association. The defendants also submitted their plans to Mr. Smith. By early June 1991, they had the written approval of both parties. The site was cleared, and excavation was authorized by the defendants in July.
Mr. Chawney was contacted a short time later by an attorney for a group of residents who were concerned that the design of the defendants’ home was not compatible and harmonious with existing structures on Long Bow Court. The house was to be a modem-looking three-story structure, with a flat roof, vertical wood siding, unshuttered casement windows, and rounded comers made of glass blocks.
A few days later, the defendants received a letter from the lawyer, who repeated the gist of the earlier conversation and emphasized that the defendants’ property was subject to the Lincoln Green restriction agreement. Counsel also stated that the Nottingham Forest association was not authorized to approve the defendants’ project. The defendants did not respond.
A group of Lincoln Green homeowners filed suit in Oakland Circuit Court in August 1991 to permanently enjoin the defendants from proceeding with construction. There was a three-day bench trial in June 1992. At the conclusion, the court held that although the defendants’ proposed dwelling was not “harmonious” with the existing houses in Lincoln Green, they were entitled to a judgment of no cause of action, nonetheless.
After noting that the defendants’ structure was in compliance with code and ordinance requirements, the circuit court explained that neither the plaintiffs nor the other subdivision lot owners constituted the architectural control committee contemplated by the 1967 restriction agreement. Further, the requirement of an “harmonious” development in paragraph 18 of the agreement was vague, ambiguous, and overbroad on its face.
Moreover, the circuit court said, considering that the defendants first presented their plans in 1987, the facts and evidence justified applying the defenses of laches, estoppel, and waiver. The plaintiffs failed to take the proper action under the restriction agreement to protect their interests.
IV
The plaintiffs appealed to the Court of Appeals. In an unpublished opinion per curiam, the Court of Appeals reversed and remanded for further proceedings. Noting that it reviews the findings of fact in an equitable action for clear error, the majority said that there were several problems in this case.
First, although the plaintiffs did not constitute a properly formed architectural control committee, that was irrelevant because each possessed an individual cause of action to enforce the restrictive covenants that ran with the land and were binding on the defendants, the majority said. Also, paragraph 21 of the agreement provided for enforcement of the restrictions by proceedings at law or in equity against any person who violates a covenant.
Second, the majority said the circuit court erred in finding paragraph 18 to be vague, ambiguous, over-broad, and unenforceable. The drafter’s intent is paramount to construing a restrictive covenant. That intent may be gleaned from surrounding circumstances, the location and character of the entire tract, the purpose of the restriction, and whether there was a general plan for the development of property. Here, the intent was to “cause the subdivision to develop into a beautifully, harmonious, private residence section . . . .” This was not ambiguous or overbroad, the majority said.
The majority further ruled that it was inconsistent for the circuit court to find both that paragraph 18 was ambiguous and overbroad, and that the defendants’ proposed design was not harmonious with the neighborhood. The plaintiffs’ expert witness testified that the terms “harmony” and “contextualism” are commonly used in the architecture field, and that no reasonable architect would consider the defendants’ design to be harmonious with the existing houses in Lincoln Green.
Finally, the circuit court erred in finding that the defendants had submitted plans to the Village of Beverly Hills in 1987, the majority said. It is undisputed that the first plans were not presented until May 1991. Thus, the equitable defenses of laches, estoppel, and waiver did not apply. Neither were the plaintiffs required to show any lost benefit or actual damage. Equity will intercede whenever a violation of a covenant is threatened. Proof of damage is not required.
Acknowledging that a remedy at this late date presented a problem, the majority nonetheless' reversed and remanded for proceedings consistent with its opinion. The majority also reversed the circuit court order assessing costs against the plaintiffs, and said that the plaintiffs may tax costs following proceedings on remand.
The dissenting judge in the Court of Appeals agreed with the majority that paragraph 18 was not vague, ambiguous, or overbroad. The dissent also agreed that the circuit court had erred in finding that the defendants’ plans were submitted in 1987.
The dissent disagreed, however, that the circuit court had erred in ruling that the plaintiffs failed to take proper action under the restriction agreement. The procedure in the agreement for transferring the developer’s rights as developer and architectural control committee had not been followed, and no official homeowners’ association had ever been formed. Nor did the homeowners constitute the committee as the developer’s “successors and assigns” under paragraphs 1 and 24. While the plaintiffs may have individual causes of action to enforce the provisions of the restriction agreement, the question remains whether there was a breach. The dissent concluded that there was not, because there was no properly constituted committee to which the defendants were obligated to submit their construction plans.
Finally, the dissent said that it would remand the laches issue for reconsideration because it was not clear that the circuit court would have found no laches in the absence of its erroneous finding that plans were submitted in 1987.
The defendants want this Court to reverse the decision of the Court of Appeals majority and to reinstate the decision of the circuit court. For the reasons stated in the Court of Appeals dissent, and more fully explained below, we grant the requested relief.
v
Negative covenants such as those in the Lincoln Green restriction agreement are grounded in contract. In an action to enforce such a covenant, the intent of the drafter controls. The provisions are to be strictly construed against the would-be enforcer, however, and doubts resolved in favor of the free use of property. Livonia v Dep’t of Social Services, 423 Mich 466, 525; 378 NW2d 402 (1985). Courts will not grant equitable relief unless there is an obvious violation. Sampson v Kaufman, 345 Mich 48, 50; 75 NW2d 64 (1956).
The plaintiffs contend that the defendants breached the Lincoln' Green restriction agreement by (1) failing to obtain written approval of their building plans from the architectural control committee, and (2) building a house that was not architecturally harmonious with existing structures. We agree with the Court of Appeals dissent, however, that there was no breach of the agreement because there was no properly constituted architectural control committee, i.e., no method for enforcing the standards of “beauty” and “harmony.”
It is undisputed that from the time the restriction agreement was recorded in 1967, to the beginning of the construction of the defendants’ home in 1991, no architectural control committee separate from the original developer had been convened to consider proposed construction in Lincoln Green. All twelve lots had been improved by 1974. After that, builders who were involved in projects on Long Bow Court either were referred by Mr. Smith to the Nottingham Forest association or, presumably, proceeded without the approval of a homeowners’ group.
Further, no one sought to correct the statement on the annual village calendar that the Nottingham Forest association had jurisdiction over the property on Long Bow Court. The calendar had contained that information for at least fifteen years, according to Mr. Smith. In short, as noted by the Court of Appeals dissent, Lincoln Green lot owners acted at all times as if there were no separate architectural control committee for their subdivision.
Moreover, although the defendants did not submit proposed design plans for their home until 1991, the plaintiffs were aware several years earlier of the need for an architectural control committee. Probable construction of a new house on Long Bow Court became a reality in 1987, when the owners of the neighboring condominium project agreed to split off land for development as a single-family parcel, subject to the Lincoln Green restriction agreement. The record indicates that several residents of Long Bow Court attended one or more of the public hearings on the matter, and that the developer announced then that he had a buyer who had designed a house for the site.
The plaintiffs emphasize that the defendants were aware the parcel they purchased in 1988 was subject to the restriction agreement governing the twelve lots in Lincoln Green. That is not disputed. This is not an instance, however, where a purchaser of land subject to restrictive covenants either disregards them or flouts them. The defendants sought both through the Village of Beverly Hills and the Oakland County Register of Deeds to locate the committee or association authorized to approve a proposed structure. They were informed by a village official that they should seek approval from the Nottingham Forest association, and were referred to Ms. Burch. Both she and the village official gave the go-ahead, and the defendants’ plans proceeded.
Although the Court of Appeals correctly concluded that the committee contemplated by the 1967 restriction agreement never was properly constituted, the majority erred in finding that to be irrelevant because the plaintiffs had individual causes of action to enforce the restrictive covenants. As the dissent recognized, the critical question was whether there was a breach of the agreement. Where the defendants complied with all government regulations and objective criteria under the agreement, and the entity charged with determining compliance with other standards did not exist, there was no violation to redress, on an individual basis or otherwise.
VI
For the reasons given, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. MCR 7.201(F)(1).
Mat,t.ett, C.J., and Brickley, Cavanagh, Riley, and Weaver, JJ., concurred.
Boyle, J., concurred only in the result.
Kelly, J., took no part in the decision of this case.
After this controversy arose, Ms. Burch withdrew her approval.
As the defendants point out, although Mr. Shannon specified in the restriction agreement that houses must meet minimum square footage requirements, and that the attached garages on ail but one lot not face the street, he did not identify the type of construction allowed or otherwise define the term “harmonious.” For example, the restriction agreement did not indicate the type of building materials to be used, or limit architectural style. To the contrary, the agreement recognized that there would be single-story, two-story, and tri-level structures, and that some garages might accommodate more than two vehicles.
Issued July 25, 1995 (Docket No. 154645).
The trial court admitted as defense exhibits copies of the official minutes of several public hearings held in 1987. The defendants attached a couple of these exhibits to their brief in the Court of Appeals. One, identified as the minutes of the regular council meeting of January 5, 1987, indicates that members were informed that a buyer was interested in purchasing the site now owned by the defendants for the purpose of building a custom home. Another document, identified as the council minutes of October 5, 1987, states that the developer “has found a purchaser for the property who is an architect and who has designed a home for that lot. When he designed the home, he did it with the intent of saving as many of the trees as possible.”
The defendants also determined'that such a subdivision or homeowners’ association was not registered with the Michigan Department of Commerce. | [
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Weaver, J.
This Court granted leave to appeal, limited to the issue whether § 30b of the Liquor Control Act grants to a wholesaler who has no agreement with the supplier the right to maintain a civil action under the act. The essential facts of this suit are not in dispute.
On January 1, 1984, Stroh Brewery Company and Cap Beverage, Inc., entered into a wholesaler agreement that gave Cap Beverage exclusive rights to sell and distribute certain Stroh products in Hillsdale and Lenawee Counties. In October 1989, Cap Beverage notified Stroh that it was seeking a buyer for its assets, including its right to sell and distribute Stroh’s products. Stroh requested certain information to evaluate any proposed transaction, which Cap Beverage did not provide. Stroh also informed Cap Beverage that it wished to consolidate its distribution rights with existing Stroh wholesalers whenever possible. Two companies bid on Cap Beverage’s assets. Stroh evaluated and rejected one of them. The other, Monroe Beverage Company, Inc., requested from Stroh the forms necessary to apply for Stroh’s approval. Stroh informed Monroe that it wished to consolidate its distribution and sales rights with existing wholesalers where possible, and never sent the requested forms to Monroe. Eventually Monroe purchased Cap Beverage’s assets, including the Stroh distributorship, on August 24, 1990. When informed of the sale, Stroh responded that Monroe’s purchase of Cap Beverage’s sale and distribution rights violated Stroh’s agreement with Cap Beverage, resulting in the immediate and automatic termination of the agreement. Stroh then granted its sale and distribution rights to another wholesaler.
Monroe filed suit against Stroh, alleging that Stroh violated the provisions of the Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq. Specifically, Monroe argued that Stroh failed to appropriately consider and consent to the transfer of distribution rights to Monroe, MCL 436.30b(16); MSA 18.1001(2)(16).
Stroh moved for summary disposition under MCR 2.116(C)(8), contending that Monroe could not bring suit for damages under the Liquor Control Act because, as both parties concede, Monroe was not a wholesaler with which the supplier had an agreement. The trial court denied Stroh’s motion. The Court of Appeals affirmed.
Plaintiff is seeking damages under MCL 436.30b; MSA 18.1001(2), the section that provides a “structure for the business relations between a wholesaler of beer and a supplier of beer.” MCL 436.30b(l); MSA 18.1001(2)(1).
Subsection 28 of § 30b provides for a limited right to sue under § 30b. Specifically, it states that when a supplier (such as defendant Stroh) engages in conduct prohibited under this section, then a civil action may be brought by “a wholesaler with which the supplier has an agreement.” Both parties concede that Monroe is not such a wholesaler.
Because Monroe is not authorized to bring suit under subsection 30b(28), it asserts that the remedy set forth in subsection 30b (28) is not exclusive. Monroe alleges that an alternative remedy is set forth in MCL 436.30b(29); MSA 18.1001(2)(29). This portion of the statute provides:
A supplier that violates any provision of this section is liable for all actual damages and all court costs and reasonable attorney fees incurred by a wholesaler as a result of that violation. A wholesaler that violates any provision of this section is liable for all actual damages and all court costs and reasonable attorney fees incurred by the supplier as a result of that violation.
Monroe argues that subsection 30b(29) implicitly allows any wholesaler who alleges damage from a supplier’s violation of the provisions of § 30b to sue under the act. We must disagree.
It is well established that “[wjhere a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.” Lafayette Transfer & Storage Co v Public Utilities Comm, 287 Mich 488, 491; 283 NW 659 (1939). Subsection 30b(28) plainly sets forth who may avail themselves of the rights provided by § 30b. The Liquor Control Act sets forth new rights and responsibilities, not found in the common law. Accordingly, we must recognize that it also establishes who has a remedy under the act.
If subsection 30b(28) did not exist, we might agree with Monroe’s theory that subsection 30b(29) would allow any wholesaler who alleged damages to sue under § 30b. However, because subsection 30b(28) explicitly provides that only wholesalers who have an agreement with a supplier may sue under § 30b, we will not infer other remedies.
Stroh also asserts that the Court of Appeals erred by allowing Monroe’s common-law claim for negligence to stand. We did not grant leave on this issue. Accordingly, we remand the issue to the Court of Appeals for consideration.
We reverse in part and remand with instructions.
Mallett, C.J., and Brickley, Cavanagh, Boyle, and Riley, JJ., concurred with Weaver, J.
Kelly, J., took no part in the decision of this case.
Monroe alleged various other claims as well, which are not before us.
MCL 436.30b(16); MSA 18.1001(2)(16) provides:
A supplier shall not withhold consent to any transfer of a wholesaler’s business if the proposed transferee meets the material and reasonable qualifications and standards required by the supplier. A wholesaler shall give the supplier written notice of intent to transfer the wholesaler’s business. A supplier shall not unreasonably delay a response to a request for a proposed transfer of a wholesaler’s business. However, a transfer of a wholesaler’s business which is not approved by the supplier shall be null and void. A supplier shall not interfere with, or prevent, the transfer of the wholesaler’s business if the proposed transferee is a designated member.
211 Mich App 286; 535 NW2d 253 (1995).
MCL 436.30b(28); MSA 18.1001(2)(28) provides:
If a supplier engages in conduct prohibited under this section, a wholesaler with which the supplier has an agreement may maintain a civil action against the supplier to recover actual damages reasonably incurred as the result of the prohibited conduct. If a wholesaler engages in conduct prohibited under the section, a supplier with which the wholesaler has an agreement may maintain a civil action against the wholesaler to recover actual damages reasonably incurred as the result of the prohibited conduct. | [
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Brickley, J.
In December of 1989, the plaintiff, Vugterveen Systems, Inc., filed a foreclosure action to enforce a construction lien against property owned by the defendant, Olde Millpond Corporation. Olde Millpond challenged the foreclosure, asserting that it had a defense to the lien. The trial court found the lien enforceable, but reduced its value. It also awarded attorney fees to Vugterveen. The Court of Appeals affirmed, awarding the lien in the entire amount claimed by Vugterveen. 210 Mich App 34; 533 NW2d 320 (1995). Olde Millpond appeals in this Court.
I. THE CONSTRUCTION LIEN ACT
This case involves the Construction Lien Act, MCL 570.1101 et seq.-, MSA 26.316(101) et seq., which took effect on January 1, 1982, and replaced the mechanics’ lien laws enacted in 1891. See House Legislative Analysis, HB 4053, January 26, 1981. The act was intended to protect the interests of contractors, workers, and suppliers through construction liens, while protecting owners from excessive costs. See M D Marinich, Inc v Michigan Nat’l Bank, 193 Mich App 447, 453; 484 NW2d 738 (1992), Fischer-Flack, Inc v Churchfield, 180 Mich App 606, 611; 447 NW2d 813 (1989), and 1 Cameron, Michigan Real Property Law (2d ed), § 19.16, p 800. The act is to be liberally construed to effectuate these purposes. MCL 570.1302(1); MSA 26.316(302)(1). Further, substantial compliance is sufficient to meet the provisions of part one of the act. Brown Plumbing & Heating, Inc v Homeowner Construction Lien Recovery Fund, 442 Mich 179, 183; 500 NW2d 773 (1993). However, the act’s clear and unambiguous requirements should not be ignored. Id. at 185.
The act is based on an exchange of information between the owner of the property, the general contractor, subcontractors, material suppliers, and laborers. See Cameron, supra, § 19.18, pp 802-803. The act creates this flow of information through a series of documents that provide the information necessary to allow the parties to protect their interests. McAlpine & Keating, Construction Liens in Michigan, § 4.1, p 4-3.
Normally, this flow of information begins with the property owner. The act requires an owner to file a notice of commencement with the register of deeds before any improvement is made on the property. MCL 570.1108; MSA 26.316(108). See McAlpine & Keating, supra, § 4.5, pp 4-7 to 4-8. The notice of commencement must be posted at the construction site, and contain certain information necessary for the preparation and filing of any future construction liens. It also notifies the public that the property has been improved, and that liens may exist. Id.
After the notice of commencement is filed, any entity listed in the act who performs improvements on the property is required to provide notice that it has begun work through a notice of furnishing. MCL 570.1109; MSA 26.316(109). McAlpine & Keating, supra, §§ 4.13-4.16, pp 4-13 to 4-16. In most cases, a subcontractor is required to provide a notice of furnishing to the owner and the general contractor within twenty days after first furnishing labor or material. MCL 570.1109(1); MSA 26.316(109)(1). This notifies owners of the identity of subcontractors improving the property who may become future lien claimants. See McAlpine & Keating, supra, § 4.13, p 4-13.
A subcontractor’s failure to provide a notice of furnishing within the twenty-day time frame does not serve to defeat its right to a lien. MCL 570.1109(5); MSA 26.316(109)(5). However, failure to comply with the twenty-day time limit may reduce the value of the lien. Subsection 109(6) of the act provides:
The failure of a lien claimant, to provide a notice of furnishing within the time specified in this section shall not defeat the lien claimant’s right to a construction lien for work performed or materials furnished by the lien claimant before the service of the notice of furnishing except to the extent that payments were made by or on behalf of the owner or lessee to the contractor pursuant to either a contractor’s sworn statement or a waiver of lien in accordance with this act for work performed or material delivered by the lien claimant. This subsection does not apply to a laborer. [MCL 570.1109(6); MSA 26.316(109)(6).]
Thus, a subcontractor’s delay in providing the notice of furnishing will reduce the lien by the amount that the owner had already paid for the subcontractor’s work before the notice was provided. McAlpine & Keating, supra, § 4.15, p 4-15. However, these payments must have been made pursuant to a contractor’s sworn statement or waiver of lien. Id.
The act also provides owners with information by requiring general contractors and subcontractors to make sworn statements itemizing their bills. MCL 570.1110; MSA 26.316(110). See McAlpine & Keating, supra, § 4.17, p 4-17. A general contractor must provide the owner with such a statement when payment is due or demanded, and whenever such a statement is demanded by the owner. MCL 570.1110(1); MSA 26.316(110)(1). The subcontractor must provide a statement to the owner only when demanded, but must provide the general contractor with a sworn statement when payment is demanded. MCL 570.1110(2), (3); MSA 26.316(110)(2), (3). Thus, the owner can rely on a sworn statement as a comprehensive list of potential lien claimants.
Sworn statements can also be used as a defense to a claim of lien. An owner or general contractor may rely on a sworn statement prepared by another party to avoid the claim of a subcontractor, unless the sub contractor has provided a notice of furnishing. MCL 570.1110(7); MSA 26.316(110)(7). A contractor or subcontractor who fails to file a sworn statement does not lose lien rights, but may not bring an action to enforce a lien until the statement is filed. MCL 570.1110(8), (9); MSA 26.316(110)(8), (9). However, these defenses must be evaluated in light of the remedial and equitable purpose of the act.
Potential lien claimants are required to provide a waiver of lien to the owner on payment. The act recognizes four types of waivers. MCL 570.1115; MSA 26.316(115). Each type releases, to varying degrees, a potential claim of lien. See, generally, McAlpine & Keating, supra, §§ 4.23-4.40, pp 4-21 to 4-32. This allows an owner to compare the waivers of lien against the sworn statements, and to determine if there are any potential lien claimants who have not been satisfied. See McAlpine & Keating, supra, § 4.20, p 4-18.
The Legislature recognized that this system could be abused. Because it clouds title, a lien can be used by unscrupulous contractors to force property owners to pay excessive construction charges. Thus, the act protects owners by providing a defense to liens that would force owners to pay more than the price stated in the general contract. The act provides:
If the real property of an owner or lessee is subject to construction liens, the sum of the construction liens shall not exceed the amount which the owner or lessee agreed to pay the person with whom he or she contracted for the improvement as modified by any and all additions, deletions, and any other amendments, less payments made by or on behalf of the owner or lessee, pursuant to either a contractor’s sworn statement or a waiver of lien, in accordance with this act. [MCL 570.1107(6); MSA 26.316(107)(6).]
This is the defense asserted by the defendant in this case.
n. FACTS
On April 20, 1988, Olde Millpond contracted with Vander Wall Construction, a general contractor, for work on two condominium buildings, each of which contained two units. A notice of commencement was filed on November 7, 1986. In July 1988, Vander Wall hired Vugterveen as a subcontractor to perform drywall work on one building, identified as building C-2. Olde Millpond paid Vugterveen in full for this work. Indeed, Mr. Charles Hombach, the owner of Olde Millpond, personally delivered payment to Mr. Glen Vugterveen, the owner of Vugterveen. The work done on this building is not directly part of the dispute.
On August 15, 1988, Vugterveen contracted with Vander Wall to perform drywall work on a second building, identified as B-l. The terms of this contract were set forth in a written agreement that set the price at $4,875 per unit. Because there were two units, the total cost was $9,750. Further, the trial court found that Mr. Hombach and Mr. Vugterveen met after Vugterveen had completed work on the first building, but before it began work on the second. It was at this meeting that Mr. Hombach paid Mr. Vugterveen for the first building. The court also found that Vugterveen began work on the second building as a result of this meeting. These findings were not disputed on appeal.
Mr. Vugterveen testified that he was to be paid in installments for the second building. The contract called for sixty percent payment when the drywall was hung, and the remainder when completed. This schedule was to be carried out on a per-unit basis. Mr. Vugterveen also testified that his company had completed the work in one unit, and had hung the diywall in the other.
In late October, 1988, Olde Millpond fired both Vugterveen and Vander Wall. On December 7, 1988, Vugterveen filed both its lien and notice of furnishing with proof of service. The lien requested payment of $7,800, the complete price of the first unit, and sixty percent of the price for the second.
Numerous sworn statements concerning building B-l were provided by Vander Wall to Olde Millpond. Of these, two appear to be most relevant. One is a sworn statement, dated October 20, 1988, showing that the plaintiff was owed $5,000, and that $1,800 worth of work was not yet completed. The second statement, dated December 2, 1988, shows a balance of $7,775 owed to Vugterveen. The president of Vander Wall testified that this was $25 too low because of his error.
After firing Vander Wall and Vugterveen, Olde Millpond completed construction in early 1991. Olde Millpond eventually paid $276,969 to complete the project. However, the original contract price with Vander Wall had been $266,595. Thus, Olde Millpond paid $10,374 more to complete the job than it had agreed to pay in its contract with Vander Wall.
In December of 1989, Vugterveen filed a foreclosure action to enforce its lien. After a nonjury trial, the court determined that the hen was enforceable. However, the court applied a pro-rata formula drawn from Smalley v Gearing, 121 Mich 190; 79 NW 114 (1899), and determined that the amount of the lien should be reduced to $6,896.16, plus interest of $1,433.22. The court also awarded $261 in costs, and $16,133.07 in attorney fees.
The Court of Appeals affirmed in part, but reversed the trial court’s Smalley analysis, and awarded the full amount of the lien. Id. at 45-46. Olde Millpond appeals in this Court.
IH. ANALYSIS
This Court must decide whether Vugterveen’s lien is enforceable. Olde Millpond asserts two theories of defense. First, it asserts that it cannot be held liable for any liens because it ultimately paid more than the original contract price to complete the project. MCL 570.1107(6); MSA 26.316(107)(6). It also argues that Vugterveen’s failure to timely serve a notice of furnishing defeats the lien. MCL 570.1109(5), (6); MSA 26.316(109)(5), (6).
A. THE DIFFERENCE BETWEEN THE ORIGINAL CONTRACT PRICE AND THE FINAL COST OF COMPLETION
Olde Millpond argues that Vugterveen’s lien is invalid under MCL 570.1107(6); MSA 26.316(107)(6), which provides:
If the real property of an owner or lessee is subject to construction liens, the sum of the construction liens shall not exceed the amount which the owner or lessee agreed to pay the person with whom he or she contracted for the improvement as modified by any and all additions, deletions, and any other amendments, less payments made by or on behalf of the owner or lessee, pursuant to either a contractor’s sworn statement or a waiver of lien, in accordance with this act. [MCL 570.1107(6); MSA 26.316(107)(6).]
This subsection was designed to protect an owner from excessive liens by allowing an owner to rely on the price set forth in its contract with the general contractor. See McAlpine & Keating, supra, § 2.10, p 2-11.
Olde Millpond argues that this subsection is unambiguous and directly applies in this case. It asserts it cannot be required to pay any outstanding liens because it has already paid more than the original contract price to complete the project. However, this subsection is ambiguous when applied to this case. The phrase “person with whom [the owner] contracted” does not explicitly address situations where there is more than one general contractor, or where a general contractor and its subcontractors are fired and replaced. Further, Olde Millpond’s analysis allows an owner to cut off liens held by subcontractors by merely firing them and hiring successor contractors. Under this reading, an owner would be able to assert subsection 107(6) as a defense to all liens held by subcontractors on the first general contract whenever the owner pays the successor contractors amounts which, when added to the payments already made on the first general contract, exceed the price of the first general contract. This is clearly contrary to the act’s stated purpose of protecting the rights of such parties. Thus, this reading must be rejected.
We conclude, however, that this subsection can and should be interpreted so as to give full effect to the act’s purpose of protecting the interests of builders as well as owners. The act is to be liberally construed in the face of ambiguity so as to effectuate its purposes. MCL 570.1302(1); MSA 26.316(302)(1), Brown Plumbing & Heating, supra at 183. The purposes of the act are served only if the phrase “payments made” in subsection 107(6) refers to payments made on the specific contract between the owner and the person with whom the owner contracted. Thus, Olde Millpond may use all payments made on the contract with Vander Wall as a defense to Vugterveen’s lien because Vugterveen was a subcontractor on the contract between Olde Millpond and Vander Wall. Olde Millpond may not use payments made on the second general contract as a defense to Vugterveen’s lien because these payments were not made on the relevant contract.
Olde Millpond will have a defense to Vugterveen’s lien if it can show that the sum of payments made pursuant to sworn statements and waivers of lien under the Vander Wall contract plus Vugterveen’s claim of lien exceed the price of the Vander Wall contract. MCL 570.1107(6); MSA 26.316(107)(6). While the trial court did determine the contract price and the actual cost of completion, it did not find how much Olde Millpond had paid on the Vander Wall contract. Further, the record in this case does not allow this Court to make that determination. Thus, it is necessary to remand this case to the trial court to determine the amount of payments made on the Vander Wall contract as attested by sworn statements or waivers of lien. Vugterveen has a valid lien to the extent that the lien and the payments made by Olde Millpond on the Vander Wall contract do not exceed the price of the contract between Olde Millpond and Vander Wall.
B. VUGTERVEEN’S FAILURE TO PROVIDE A TIMELY NOTICE OF FURNISHING
Olde Millpond also argues that Vugterveen’s failure to provide its notice of furnishing within the twenty-day time frame required by § 109 defeats the lien. Under MCL 570.1109(6); MSA 26.316(109)(6), Vugterveen cannot claim a lien for payments made by Olde Millpond attested by sworn statements or waivers of lien for work performed by Vugterveen before it supplied its notice of furnishing.
As Olde Millpond argues, the trial court found that Vugterveen failed to provide a notice of furnishing in a timely fashion. However, the trial court also found that Mr. Vugterveen met with Mr. Hombach before work began on the second building, and that the two men agreed that Vugterveen would begin work on the new building. The court determined that this meeting removed any need for Vugterveen to provide a notice of furnishing.
We agree with this ruling. The conversation between Mr. Hombach and Mr. Vugterveen fulfilled the notice-of-fumishing requirement. The act is remedial and equitable in nature, and substantial compliance is sufficient to meet the requirements of part one of the act. MCL 570.1302(1); MSA 26.316(302)(1), Brown Plumbing & Heating, supra at 183. See also McAlpine & Keating, supra, § 1.9, p 1-6. The purpose of the notice of furnishing is to notify the owner that a contractor is improving the property, and to alert the owner to a possibility of a lien. Id., § 4.13, p 4-13. A notice of furnishing requires a contractor to identify itself, describe the work it is to perform, and describe the property to be improved. MCL 570.1109(4); MSA 26.316(109)(4). In this case, Mr. Vugterveen supplied all this information to Mr. Hombach at their meeting. The owner knew the identity of the subcontractor, the work that was to be performed, and the property to be improved. Under these facts, we find that the trial court did not err in determining Vugterveen substantially complied with the act. Thus, Vugterveen’s failure to provide a notice of furnishing does not allow Olde Millpond to assert a defense under subsection 109(6).
Olde Millpond also argues that Vugterveen’s failure to supply it with a notice of furnishing within the statutory time frame reduces the amount of any lien that Vugterveen can claim. The act provides that an owner may rely on a sworn statement to avoid a lien if a notice of furnishing has not been provided. MCL 570.1110(7); MSA 26.316(110)(7). Olde Millpond claims that the failure to provide a notice of furnishing in a timely manner allows it to rely on the October 22, 1988, sworn statement showing that Vugterveen was only entitled to $5,000, and that the total price for drywall would be $6,800. Thus, Olde Millpond seeks to limit any lien to $5,000 in reliance on the October 22, 1988 sworn statement.
We conclude that Olde Millpond cannot limit the lien in this manner. Vugterveen’s substantial compliance with the act defeats Olde Millpond’s argument on this point because it had, in effect, filed a notice of furnishing before the October sworn statement was issued. Therefore, Olde Millpond may not rely on a sworn statement to avoid Vugterveen’s lien.
Though not disputed by the parties, this Court notes that the Court of Appeals correctly reversed the trial court’s determination that the liens should be prorated under Smalley, supra. Smalley was decided under the old mechanics’ lien act, which called for proration. Proration is not called for by the present act in this situation.
C. ATTORNEY fees
The trial court also awarded over $16,000 in attorney fees. The act contains an attorney-fee provision, which provides:
The court may allow reasonable attorneys’ fees to a lien claimant who is the prevailing party. The court also may allow reasonable attorneys’ fees to a prevailing defendant if the court determines the lien claimant’s action to enforce a construction lien under this section was vexatious. [MCL 570.1118(2); MSA 26.316(118)(2).]
Thus, the act distinguishes between a lien claimant and a defendant. A court has discretion to award attorney fees to a prevailing lien claimant, but may only award attorney fees to a prevailing defendant if the suit was vexatious. MCL 570.1118(2); MSA 26.316(118)(2).
Because the prevailing party will be determined on remand, it is inappropriate to rule on the attorney-fee issue at this point. However, if Vugterveen is determined to be the prevailing party, the trial court’s award of attorney fees should be reinstated. Despite the contention of Olde Millpond, the trial judge conducted a thorough determination of the reasonableness of the fees. We find no abuse of discretion.
Thus, the award of attorney fees is vacated pending remand. If Vugterveen prevails on remand, the trial court’s original award of attorney fees should be reinstated, along with any other appropriate attorney fees or costs. If Olde Millpond prevails below and pursues attorney fees, the trial court should decide whether to award them to Olde Millpond.
iv. conclusion
We conclude that Olde Millpond failed to present a valid defense to Vugterveen’s lien because it may not use payments made on a contract with its second general contractor as a defense to a lien asserted by Vugterveen, a subcontractor that had performed work under the first general contractor. However, Vugterveen’s lien is valid only to the extent that Olde Millpond’s payments on the original general contract, combined with Vugterveen’s lien, do not exceed the price specified in the contract with the original general contractor. We remand the case to the trial court for a determination of the amount of Olde Millpond’s payments on the original contract. We also conclude that Vugterveen substantially complied with the “notice of furnishing” requirements of the Construction Lien Act. MCL 570.1101 et seq.-, MSA 26.316(101) et seq. Thus, the decision of the Court of Appeals is affirmed in part and vacated in part, and the case is remanded to the circuit court for further proceedings.
Mallett, C.J., and Cavanagh, Boyle, Riley, and Weaver, JJ., concurred with Brickley, J.
Kelly, J., took no part in the decision of this case.
We note, however, that Olde Millpond does not claim that it paid Vander Wall or any other party for the cost of the particular work that Vugterveen performed on the second building.
The trial court did find that Olde Millpond paid $179,459 to Vander Wall. However, this does not conclusively establish the amount paid on the Vander Wall contract because Olde Millpond may have directly paid subcontractors or suppliers pursuant to subsection 107(6). Indeed, Olde Millpond paid Vugterveen directly for the drywall work on the first building, and it appears that this payment may not have been included in the trial court’s determination of the amount paid to Vander Wall. The trial court also did not specify whether any payment was made pursuant to a sworn statement or waiver of lien.
Other sworn statements show that Vugterveen was not the original drywall contractor. Mr. Vander Wall’s testimony revealed that the original drywall subcontractor withdrew from the project before beginning work. Mr. Vander Wall also testified that Vugterveen was hired at a higher rate than the original drywall subcontractor.
We note that this case does not present the issue of liability for cost overruns.
The act does call for proration when a contractor, subcontractor, or other protected entity is made to leave the work uncompleted through no fault of its own. MCL 570.1120; MSA 26.316(120). Although that is what happened in this case, Vugterveen’s contract with Vander Wall contained a payment schedule providing for a progress payment when the drywall was hung, and full payment when the drywalling was completed. Olde Millpond does not dispute that Vugterveen had completed one unit in the second building, and had hung the drywall in the second unit in that building. Thus, the Vugterveen-Vander Wall contract establishes that Vugterveen is entitled to the entire price on the first unit, and sixty percent of the price on the second. Therefore, this Court need not apply § 120. Olde Millpond’s argument that Vugterveen’s work was faulty was rejected by the trial court, and not directly argued on appeal. Further, this claim should have been the subject matter of a separate contract action. See MCL 570.1302(2); MSA 26.316(302)(2). | [
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Boyle, J.
We granted leave to appeal in People v Mary Lemons to decide whether defendant Mary Cadry Lemons was entitled to a jury instruction on duress where her defense was that the charged offenses never occurred, and whether she was entitled to an instruction on criminal sexual conduct in the second degree. We granted leave in People v Llewellyn Lemons to decide whether defendant Llewellyn Lemons’ sentence of sixty to ninety years was lawful where defendant was forty-five years old at sentencing.
We reverse the decisions of the Court of Appeals in both cases. We reinstate Ms. Lemons’ convictions and Mr. Lemons’ sentences.
I. FACTS AND PROCEEDINGS
The defendants each were convicted of three counts of first-degree criminal sexual conduct against their children. They each were charged with four counts, but, just before trial, the prosecutor dismissed counts vn and vm. Ms. Lemons was convicted of three counts of receiving cunnilingus, one count involving her son (Mr. Lemons’ stepson), and the other two involving her stepdaughter (Mr. Lemons’ younger daughter). Mr. Lemons was convicted of one count of fellatio with each victim and, on an aiding and abetting theory, of one count of cunnilingus performed by his daughter on his wife. The aggravating factor making the crime esc I was that both children were under the age of thirteen at the time of the events.
A
The testimony in this case came from the victims, as well as Mr. Lemons’ older daughter. Mr. Lemons’ younger daughter, who was eighteen at the time of trial, testified that the sexual abuse began in 1980 when she was five or six, before Ms. Lemons and her son moved in with Mr. Lemons and his daughters. The witness testified that her father showed her a pic ture of a woman “performing oral sex on a man” in a magazine and convinced her to perform the act in the picture by telling her he was “low on [his magic] power” and would die if she did not. Mr. Lemons ordered her to continue, pushing her “head down on him,” even after she vomited. The older sister, who was ten at the time of the incident, testified that her father had called her into the bedroom first and had shown her a picture of people having oral sex, which he said he needed for energy. When she refused, her father told her to go back to the living room and to send in her younger sister, which she did.
The evidence indicated that there were multiple acts of physical and sexual abuse of Mr. Lemons’ younger daughter over a period of years from 1980 to 1988 when, at age thirteen, she ran away. She testified, without objection, that she performed “oral sex” on both defendants and that she observed Ms. Lemons’ son performing “oral sex” on his mother and on Mr. Lemons. She further testified about the cunnilingus, that Mr. Lemons ordered her to “do it to Mary,” and that she put her face “down there [on Mary’s] vagina.” She also said it happened “[n]ot very many” other times. She testified with regard to Ms. Lemons’ involvement:
Q. ... Do you think that [your step mother] did it because she wanted to, or was she forced?
A. When all this started it was all new to her. She never done anything like . . . that before. And then at the beginning he forced her, and it wasn’t me. I wasn’t the first one. [My stepbrother] was, for her.
Q. All right. To perform oral sex on Mary?
A. Exactly.
* * *
Q. Okay Go ahead. Then what?
A. Then, you know, I mean the first time, all she said was “Lue.” She didn’t, she didn’t object, she didn’t try to stop it. And she slapped me. She was like provoking the situation. She was not trying to help me at all. She wasn’t trying to stop it. She was making me do it. [Emphasis added.]
The only other incident involving Mr. Lemons’ older daughter occurred some time after Ms. Lemons moved in. Ms. Lemons was sitting naked in the living room and Mr. Lemons attempted to coax his older daughter to “touch it.” She refused and was never involved in subsequent acts of abuse. She ran away when she was sixteen because Mr. Lemons was beating her and the other children, making her fight Ms. Lemons with sticks, and ordering Ms. Lemons to beat her. There was evidence that Mr. Lemons beat Ms. Lemons on a number of occasions, once pushing her through a glass window, and that Ms. Lemons generally feared Mr. Lemons.
B
Ms. Lemons’ son, who was thirteen at the time of trial, testified that when he was five and thereafter, Mr. Lemons forced him to “suck his penis” more than once while Ms. Lemons was in the room and did not protest. Mr. Lemons also ordered him to “lick [his] mother’s vagina.” Ms. Lemons’ son also testified that his mother forced him to perform this act once when Mr. Lemons was not present. Ms. Lemons’ son also performed oral sex on Mr. Lemons’ younger daughter.
Both children were sometimes involved with sex with the parents at the same time in the living room, which was used as the parents’ bedroom. Both children observed the other performing sexual acts on their parents. Abuse of Ms. Lemons’ son continued until 1991 when Protective Services intervened at the request of one of the older children; however, Ms. Lemons did not participate for two years in the abuse of her son because he would bite or pull away or “wouldn’t do it right.” The evidence adduced at trial revealed no, repercussions against Ms. Lemons for her refusal to participate.
c
Ms. Lemons and the children also testified that Mr. Lemons was an alcoholic who beat them all regularly. The parents forced the children to kneel on uncooked rice as a punishment, sometimes for hours. Mr. Lemons and Ms. Lemons disciplined the children by beating them over different parts of their bodies with “Mr. Butt Stick,” a stick approximately eighteen inches long and 1.5 inches thick with a drawing of a face and the words “Butt Stick” on it. The parents also admitted disciplining Ms. Lemons’ son by locking him in the basement overnight.
The record indicates Ms. Lemons left the household with the children at least twice. She testified that she returned each time because she feared becoming a welfare mother. The record does not reveal that she suffered any repercussions for leaving.
Mr. Lemons’ older daughter testified that Mr. Lemons told them that he was a god, and that they were demons. He forbade them to attend church because they would only hear lies there. At trial, Mr. Lemons’ younger daughter testified that Ms. Lemons’ son wished Mr. Lemons and Ms. Lemons would die, but that she wanted them to live so they would suffer like they made her suffer because “death is too good for them.”
D
The defendants both testified and denied that any sexual abuse took place in their household. They accused the victims of fabricating the charges to get back at Mr. Lemons for being a strict disciplinarian. At the end of the trial, counsel for Ms. Lemons requested an instruction on duress. The trial judge refused to give the instruction because Ms. Lemons’ testimony, consistent with her theory of the case, denied the acts ever occurred. Counsel also requested an instruction on CSC n for the counts regarding cunnilingus by Mr. Lemons’ daughter, arguing that the jury could construe the girl’s testimony to establish either oral contact or facial contact. The judge rejected the instruction as inconsistent with the evidence. Mr. Lemons expressly informed the court that he did not want any instructions on offenses other than esc I.
The jury convicted both defendants on all counts. Detroit Recorder’s Court Judge A. George Best sentenced Ms. Lemons to one life term and two terms of 50 to 80 years’ imprisonment. The judge sentenced Mr. Lemons to one life term and two terms of 60 to 90 years’ imprisonment.
The Court of Appeals, in an unpublished per curiam opinion, reversed Ms. Lemons’ convictions on the basis that the trial court erred in refusing to instruct the jury on duress and esc n. The Court affirmed Mr. Lemons’ convictions, but reversed his two sentences of 60 to 90 years as excessive under People v Moore, 432 Mich 311; 439 NW2d 684 (1989), in light of the defendant’s age, despite its having concluded the sentences were proportionate. The prosecutor appealed, and we granted leave to appeal. 450 Mich 993 (1996). We reverse the decision of the Court of Appeals and reinstate Ms. Lemons’ convictions and Mr. Lemons’ sentences.
n. PEOPLE v MARY CARRY LEMONS
A. DURESS INSTRUCTION
Ms. Lemons testified at trial and denied that any acts of sexual abuse took place in her household. On direct examination, the focus of her testimony was her relationship with her husband and its attendant physical abuse. She testified that throughout their relationship, which began in 1981 and resulted in a marriage in 1982, Mr. Lemons’ behavior and alcohol abuse gradually worsened.
Ms. Lemons testified that the physical abuse began with grabbing and progressed to open-handed slapping and later full-fledged beating with fists. She also testified that she was forced or intimidated by Mr. Lemons to do things she did not want to do, including “disciplining] the kids right or . . . clean[ing] the house the way he wanted it, or it just didn’t matter what.” Mr. Lemons’ “total control” resulted in physical bruises as well as fear of Mr. Lemons and low self-esteem. Ms. Lemons tried to leave at least twice, but she returned both times out of fear that she, as “a worn out old lady with a bunch of' kids[,] . . . would end up being a welfare mom.”
On cross-examination she testified specifically regarding the alleged sexual abuse:
Q. Ma’am, did you see Mr. Lemons involved in any type of sexual abuse with either [child]?
A. No, I did not.
Q. Never?
A. Never.
Q. You’re going to tell this jury, ma’am, that [your stepdaughter] sat up on that stand and lied?
4. Yes.
Q. You’re going to tell this jury, ma’am, that you never forced [your stepdaughter] or sat there for [her] to put her face into your vagina?
* * *
A. Correct.
Q. She lied about that?
A. Yes.
Q. You never forced [your son] to lick your vagina?
A. I never did.
Q. [He] never licked your vagina, ma’am?
A. Correct.
Q. There was no sexual abuse going on in that home at all; is that correct, ma’am?
A. Yes.
The defendant requested a jury instruction on duress on the theory that the jury was free to disbelieve Ms. Lemons’ testimony, credit the testimony of the prosecutor’s witnesses, and find that Mr. Lemons forced Ms. Lemons to sexually abuse the children. The trial judge denied the request, ruling that Ms. Lemons’ testimony was “in direct conflict with what seems to be predicated in the CJI for using a duress defense.”
The Court of Appeals reversed, explaining its decision as follows:
[T]he trial court erred by refusing to give a requested jury instruction on duress where there was evidence to support the defense, and the trial court’s refusal did not sufficiently protect her rights or present the issues to be tried. . . .
Jury instructions must not exclude material issues, defenses, and theories if there is evidence to support them. . . . [Ms. Lemons] offered some evidence from which a jury could conclude that [Mr. Lemons’] threatening conduct would cause in the mind of a reasonable person, and did cause in the mind of [Ms. Lemons], a fear of death or serious bodily harm; the fear or duress was operating on the mind of [Ms. Lemons] at the time of the alleged acts; and she committed the acts to avoid the threatened harm. [Unpublished opinion per curiam, issued May 26, 1995 (Docket Nos. 159598, 159599), slip op at 2-3.]
Judge Saad, dissenting, stated:
For the trial court to have instructed the jury that [Ms. Lemons] could be found not guilty of her participation in these disgusting crimes because she may have been “coerced” or under “duress,” in light of the overwhelming evidence of her complicity and a total absence of testimony of duress, does violence to common sense. [Id., slip op at 2.]
We agree. The right of defendants to raise inconsistent defenses, MCR 2.111(A)(2), is not unlimited. People v Kirk, 151 Mich 253; 114 NW 1023 (1908). In Kirk, the trial court refused to instruct on intoxication as a defense to the specific-intent requirement of the crime charged where the defendant also argued self-defense. This Court stated that “the jury should have been instructed . . . [on intoxication] if there was testimony which would warrant a jury in saying that the intoxication of respondent was of a degree which rendered [the respondent] incapable of entertaining the intent charged.” Id. at 258. However, the case was not reversed on these grounds because, as the defendant explains in her brief, the intoxication defense “was not sufficiently supported in the record of the Kirk case.”
Duress is a common-law affirmative defense. MCR 2.111(F)(3)(a); United States v Bailey, 444 US 394, 415; 100 S Ct 624; 62 L Ed 2d 575 (1980); 21 Am Jur 2d, Criminal Law, § 148, p 288; 22 CJS, Criminal Law, § 52, p 64. It is applicable in situations where the crime committed avoids a greater harm. The reasons underlying its existence are easy to discern:
The rationale of the defense of duress is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person. [1 LaFave & Scott, Substantive Criminal Law, § 5.3, pp 614-615.]
In order to properly raise the defense, the defendant has the burden of producing “some evidence from which the jury can conclude that the essential elements of duress are present.” CJI2d 7.6, commentary. In People v Luther, 394 Mich 619, 623; 232 NW2d 184 (1975), we held that a defendant successfully carries the burden of production where the defendant introduces some evidence from which the jury could conclude the following:
A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm.[ ]
Additionally, in People v Merhige, 212 Mich 601, 610-611; 180 NW 418 (1920), we acknowledged that the threatening conduct or act of compulsion must be “present, imminent, and impending[, that] [a] threat of future Injury is not enough,” and that the threat “must have arisen without the negligence or fault of the person who insists upon it as a defense.”
While this Court has had only a few occasions in which to address the defense, federal precedent is instructive. In Bailey, the United States Supreme Court observed that the defense requires “that the testimony given or proffered meet a minimum standard as to each element of the defense so that, if a jury finds it to be true, it would support an affirmative defense . . . Id. at 415. In other words, “[b]efore a defendant is entitled to an instruction on the defense of duress, he must establish a prima facie case of the . . . elements of that defense . . . .” United States v Beltran-Rios, 878 F2d 1208, 1213 (CA 9, 1989). The defendant is required to produce some “evidence on all of the elements of the defense of duress.” United States v Patrick, 542 F2d 381, 388 (CA 7, 1976). “Unless a defendant submits sufficient evidence to warrant a finding of duress, the trial court is not required to instruct the jury on that defense.” United States v Mitchell, 725 F2d 832, 837 (CA 2, 1983).
The right to assert inconsistent defenses notwithstanding, Ms. Lemons’ defense at trial did not meet the burden of producing a prima facie defense of duress. As discussed above, Ms. Lemons’ defense focused on her husband’s physically abusive nature. Her testimony on direct examination established that she had been beaten by Mr. Lemons, that she feared him, and that he was in control of the household. It also established that she left and returned to Mr. Lemons at least twice. On cross-examination, she unequivocally denied that any sexual abuse took place at any time in the household. We conclude that, as in Kirk, these facts are legally insufficient to require the requested instruction. They do not, standing alone, meet the burden on the defense to come forward with some evidence that the defendant did the act and chose to do so out of a reasonable and actual belief that it was the lesser of two evils.
The testimony offered in support of the defense foreclosed the trial judge from finding that the burden of production had been met, i.e., that the prohibited act was committed by the defendant and was done by her to avoid harm, and that the fear of harm was operating on her mind at the time of the act. Her testimony offered nothing with regard to the immedi acy of any specific threat as it related to any specific act of sexual abuse. Thus, the evidence failed to satisfy the burden of production of a prima facie claim that fear was operating on Ms. Lemons’ mind at the time of the alleged acts or that she reasonably felt she would suffer some harmful repercussions for failing to sexually abuse the children. At most the evidence offered by the defendant supported a contention that the relationship between the defendants was physically and emotionally abusive and that Ms. Lemons was “brain washed” through lack of self worth. The defense did not link Ms. Lemons’ fear of Mr. Lemons, either generally or specifically, to the alleged acts of sexual abuse. Thus, while it is true that “when a jury instruction is requested on any theories or defenses and is supported by evidence, it must be given to the jury by the trial judge,” People v Mills, 450 Mich 61, 81; 537 NW2d 909 (1995), the defendant here failed to successfully raise the prima facie defense of duress in accordance with Luther, supra. Because a jury question was not presented, the instruction was not required. Mills at 81.
Consistent with trial counsel’s arguments in support of the duress instruction, Ms. Lemons’ counsel argues on appeal that a duress instruction should have been given because the jury could have disbelieved Ms. Lemons’ testimony and credited the testimony regarding abuse and intimidation of Ms. Lemons by Mr. Lemons. This would be true, however, only to the extent that the defense could make a showing sufficient to allow the jury to conclude not only that a reasonable person would have feared death or serious bodily harm, but also that Ms. Lemons violated the law because she was in fact actually coerced to do so. The defendant, without offering other evidence to support a critical element of the affirmative defense, explicitly denied that the act ever occurred, thus negating any claim that acts were justified by her actual fear. Since she failed to provide a basis for the jury to find that the acts were committed by her to avoid a greater harm, tendering the duress instruction would have permitted the jury to engage in speculation.
Finally, in light of all the evidence offered in Ms. Lemons’ case, we agree with Judge Saad that tendering the instruction on duress would defy common sense. There was testimony by both victims that she ordered them to perform acts of oral sex. She slapped her stepdaughter for doing it “wrong,” and she engaged her son in the activity when Mr. Lemons was not immediately present. She offered no evidence that she suffered repercussions when she refused to abuse her son for a period of two years or when she left the household and returned. She failed to assert that some greater harm was avoided by the sexual abuse, and the evidence indicates she voluntarily reentered the household and continued to engage in the sexual abuse.
Because Ms. Lemons failed to cany the burden of production by offering some evidence on each element, we reverse the Court of Appeals determination that the trial court erred in refusing to instruct the jury on this defense.
B. CSC H INSTRUCTION
Mr. Lemons’ younger daughter testified that she performed oral sex on her stepmother. She also said it happened “[n]ot very many” other times. Ms. Lemons requested a jury instruction on CSC n on the basis of this testimony, claiming it was insufficient to establish cunnilingus for purposes of CSC I. The trial judge refused the instruction because he had refused a motion for a directed verdict on the same grounds, stating that “oral contact is sufficient for cunnilingus. [It] [d]oes not require any specific use of a mouth or the tongue as long as there is contact.”
The Court of Appeals reversed the decision of the trial court, stating, “The trial court erred in refusing to give an instruction for the CSC [II]. Upon retrial, the trial court will instruct the jury on [CSC n] if requested. . . . [Ms. Lemons’] two convictions with respect to the charges involving [her stepdaughter] are reversed, and we remand for entry of judgment of conviction of two counts of [csc n] and resentencing, with the option to the prosecutor to retry [Ms. Lemons] on the original charges of [CSC I].” Slip op at 3-4.
Just last term, we addressed the governing rule regarding when a court is required to instruct the jury on lesser included offenses. In People v Bailey, 451 Mich 657, 667-668; 549 NW2d 325 (1996), we observed:
When reviewing the propriety of a requested lesser included offense instruction, we first determine if the lesser offense is necessarily included in the greater charge, or if it is a cognate lesser included offense. Necessarily included lesser offenses “must be such that it is impossible to commit the greater without first having committed the lesser.” . . . Cognate lesser included offenses “are related and hence ‘cognate’ in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.”
Csc I requires the prosecutor to prove “sexual penetration.” MCL 750.520b(l); MSA 28.788(2)(1). Csc II requires the prosecutor to prove “sexual contact.” MCL 750.520c(l); MSA 28.788(3)(1). Sexual penetration can be for any purpose. MCL 750.520a(l); MSA 28.788(1)(1). The statute defines sexual contact, however, as touching that “can reasonably be construed as being for the purpose of sexual arousal or gratification.” MCL 750.520a(k); MSA 28.788(l)(k). Thus, because CSC II requires proof of an intent not required by CSC i — that defendant intended to seek sexual arousal or gratification — csc n is a cognate lesser offense of CSC I. In short, it is possible to commit esc I without first having committed CSC n.
Regardless of the evidence in a given case, the court must instruct the jury on necessarily included lesser offenses. People v Heflin, 434 Mich 482, 495; 456 NW2d 10 (1990). With regard to cognate offenses, however, the evidence must be “reviewed to determine if it would support a conviction of the cognate offense.” Bailey at 668. The requested instruction on the cognate offense must be consistent “with the evidence and defendant’s theory of the case.” Heflin at 499. The instruction on a cognate offense will be required if there is a dispute in evidence that would support a conviction of that charge. Bailey, supra at 661.
The trial judge did not err in determining that the CSC n conviction would not be consistent with the evidence and the defendant’s theory of the case. The evidence offered by the prosecution established that Ms. Lemons engaged in multiple acts of cunnilingus with her son and stepdaughter. Although we have found that penetration for the purpose of establishing fellatio requires actual penetration rather than mere kissing or contact where the defendant is engaging in contact with a child’s penis, People v Johnson, 432 Mich 931 (1989), the distinction is illogical where the victim testifies without objection that she performed oral sex and placed her face on the defendant’s vagina. The only reasonable interpretation of this testimony, which was not brought into question by any cross-examination creating a dispute of fact, is that it was intended to be cunnilingus, which, by definition, does not require penetration.
The distinction advocated by the defendant would be contrary to the policy of the act and would discourage child victims from testifying by requiring them to describe explicitly the method by which they performed cunnilingus. Testimony that a child victim performed oral sex and placed her face into the vaginal area of an adult does not raise a dispute on an element distinguishing the cognate offense from the principal charge.
We reverse the Court of Appeals determination that the trial court erred by refusing to instruct the jury on CSC II.
in. defendant llewellyn lemons
Mr. Lemons was sentenced to one life term and two terms of 60 to 90 years. In deciding to depart from the sentencing guidelines recommendation of 180 months or 360 months to life, Judge Best offered the following:
I believe that this is the most heinous crime a parent can commit against a child. It doesn’t rise to the level of murder but it’s a killing of another kind. You’ve killed their trust . . . their faith . . . their family, you have destroyed a big part of their future and that was your choice; you didn’t have to do it.
* * *
I believe that neither of you can be [rehabilitated]; that you will be a danger to society . . . if. . . released . . . and I am concerned.
* * *
I think the guidelines are not adequate for this type of offense ... I believe that this type of situation was never and indeed could never be envisioned by the people .. . coming up with these guideline ranges. I can’t imagine in their wildest dreams they anticipated a case like this . . . those numbers are simply incorrect . . . the conduct . . . was extraordinary in nature and beyond the anticipated range of behavior treated in the guidelines . . . the special circumstances of the offense . . . [and] offender require a significant departure .... [T]he guidelines . . . are inadequate, . . . inappropriate, . . . [and] not sufficient
* * *
I sat through this trial. I saw the children testify. I saw their emotion. You could feel the pain and the anger. For [Ms. Lemons’ son] to say that if he could, he would pull the switch himself, I think is understandable. For [Mr. Lemons’ younger daughter] to indicate that death is too good a punishment I think is understandable. And I think any court reviewing this trial or this sentence ought to understand that looking at a transcript is not sufficient to understand the emotion and the truth of what was conveyed by those children when they testified.
The Court of Appeals reversed the trial court’s sentence, and remanded Mr. Lemons’ case for resentencing. It reasoned as follows:
[W]e find the sentences proportionate and the departures from the guidelines justified. The heinousness of the crimes was not reflected in the guidelines .... The departures . . . were also justified by the existence of other serious, uncharged offenses which were established at trial.
However, although [Mr. Lemons’] sentences of 60 to 90 years may be proportionate to the offense, they are excessive with respect to the offender in light of his age of 45 years at the time of sentencing. . . . [He] would be more than 96 years old at the completion of his sentences. . . . Thus, we find it necessary to remand for resentencing ... in accord with . . . People v Moore .... [Slip op at 2.]
We agree with the Court of Appeals that the sentences were proportionate, but we reverse its finding that they were excessive under Moore because of the defendant’s age at sentencing. Moore was decided before People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994), which provide the standards for reviewing a sentence on appeal. These sentences are clearly governed by Milbourn and Merriweather.
In Merriweather, the defendant committed unspeakably atrocious acts of torture and sexual abuse against an eighty-four-year-old woman in her home. Id. at 802-804. He was convicted of two counts of esc I and sentenced to 60 to 120 years’ imprisonment for those convictions. On appeal, the defendant argued that the indeterminate sentencing act requires that where the authorized maximum sentence is “life or for any term of years,” as is the case for CSC I, “the judge must either impose a low sentence or else give ‘life,’ which would make the defendant eligible for parole after” a statutorily determined number of years. Id. at 808-809. We rejected that argument and found “no basis ... to conclude that the Legislature intended that all defendants . . . must be eligible for parole.” Id. at 809.
Our decision in Merriweather makes clear that where a sentence “falls within the permissible range of sentences for defendants convicted of [CSC i],” which is “for life or for any term of years,” MCL 750.520b(2); MSA 28.788(2)(2), and is indeterminate, because the judge fixes both the minimum and the maximum, the sentence is lawful as long as it meets the requirements of proportionality under Milboum. With regard to parole eligibility we ob-served:
The fact that it is paradoxical that the defendant might be better off with a sentence of life, which would make him eligible for parole, has nothing to do with a legislative intention that every prisoner should be eligible for parole. The Legislature has not seen fit to interfere with the voters’ directive that a defendant should not be parole eligible until the completion of the minimum term.
Assuming arguendo, “the only possible rationale for sentencing the defendant . . . was to effectively prevent the parole board from assuming jurisdiction,” . . . , that is the precise result the electorate sought and obtained in the passage of Proposal B. [Merriweather, supra at 809-811.]
In short, we find no basis in Milbourn for a requirement that the trial judge tailor every defendant’s sentence in relationship to the defendant’s age. Persons who are sixty years old are just as capable of committing grievous crimes as persons who are twenty years old. We find no principled reason to require that a judge treat similar offenses that are committed by similarly depraved persons differently solely on the basis of the age of the defendant at sentencing where the Legislature has authorized the judge to impose life or any term of years. A judge may, however, consider a defendant’s age at sentencing in deciding whether the sentence about to be imposed is proper, just as the judge considers the recommended range under the guidelines and any other factors not expressly prohibited by law.
Because there is some ambiguity in the Court of Appeals opinion regarding whether it found the sentence proportionate to the offender, we briefly address that issue. Our review of the record reveals that both defendants laughed at trial when one of the victims testified that she, unlike her stepbrother who wished his parents were dead, wanted them to live and suffer like she suffered. The record further reveals that the defendants rejected plea bargains that would have spared their children the horror of reliving multiple acts of sexual abuse before strangers and the public, and that the defendants expressed no remorse whatsoever for the obvious pain and suffering they inflicted on their children. Contributing to our review of Mr. Lemons as an offender, the record also reveals that he committed multiple criminal acts that went uncharged. In the presentence investigation report, “[t]he only positive factor the Court represen tative could find in Mr. Lemons background [was] that he has no prior adult felony convictions, remains married . . . , and is in good physical health, denying . . . [use of] illegal substances.” All other factors operated in favor of lengthy incarceration and against the possibility of rehabilitation. Finally, the record reveals that the trial judge determined both defendants to be liars. “Under Milboum, the ‘key test’ of proportionality is not whether the sentence departs from or adheres to the recommended range, but whether it reflects the seriousness of the matter.” People v Houston, 448 Mich 312, 320; 532 NW2d 508 (1995). The sentences imposed were proportionate to the perversity of the acts and of the offender despite his age at sentencing.
We conclude that the defendant’s sentences were not excessive under Moore in light of his age at sentencing where the indeterminate sentences were authorized by the Legislature and were proportionate to the offense and the offender under Milbourn. We reverse the decision of the Court of Appeals with regard to Mr. Lemons’ sentences, and we reinstate the sentences imposed by the trial court.
IV. CONCLUSION
In People v Mary Cadry Lemons, we reverse the Court of Appeals decision with regard to the trial court’s refusal to instruct the jury on duress and CSC II, and we reinstate her convictions. In People v Llewellyn Lemons, we reverse the determination of the Court of Appeals that the sentences of 60 to 90 years were excessive in light of the defendant’s age at sentencing, and we reinstate those sentences.
Mallett, C.J., and Riley and Weaver, JJ., concurred with Boyle, J.
MCL 769.9; MSA 28.1081.
MCL 750.520b; MSA 28.788(2).
The defendants sexually abused Ms. Lemons’ son from a previous relationship, who was five years old at the time of the first incident, and Mr. Lemons’ daughter from a previous relationship, who was also five years old at the time of the first incident of abuse. At the time of trial, the son was thirteen years old and the daughter was seventeen.
Apparently, the victim in these counts, who was the son of both defendants, was unwilling to testify against his parents. However, at sentencing, the trial judge stated:
I want the record to reflect as ... a consideration and not that I’m specifically basing any sentence on this . . . the youngest child that had two counts dismissed [had] such severe rectal deformity that he cannot maintain normal bowel movements ....
The jury was instructed not to consider against Ms. Lemons’ acts that occurred before she and Mr. Lemons began living together.
At this time father and daughters slept in the same bed.
The two daughters’ testimony regarding these events corroborated one another.
It is sufficient for our purposes to know that Mr. and Ms. Lemons were living together in 1985 with the children who were abused and three or four others who were bom during the Lemons’ relationship.
Ms. Lemons’ son testified that she drew the picture. Mr. Lemons admitted at trial to beating the children.
The record reflects that the defendants were laughing while this testimony was being offered, and the judge reprimanded them for it out of the presence of the jury.
MCL 750.520c; MSA 28.788(3).
Counsel’s argument that facial contact alone was insufficient to constitute CSC I through cunnilingus, and that because the testimony could be construed to describe facial contact alone, it created a jury question about whether the acts amounted to CSC I or CSC II, overlooks the fact that the witness testified, without objection, that she performed “oral sex.”
On one occasion, Mr. Lemons pushed her through a window and pulled her back.
More recently we have applied this principle to a request for an accident instruction in People v Mills, 450 Mich 61, 81; 537 NW2d 909 (1995), where we observed:
[W]hen a jury instruction is requested on any theories or defenses and is supported by evidence, it must be given to the jury by the trial judge. ... A trial court is required to give a requested instruction, except where the theory is not supported by evidence.
“An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it . . . .” 21 Am Jur 2d, Criminal Law, § 183, p 338. It does not “negate selected elements or facts of the crime.” 22 CJS, Criminal Law, § 52, p 64.
We recognize that our decision in People v Luther has been criticized, in part, for referring to duress as a defense that negates the intent element, id. at 622, rather than as an affirmative defense that justifies or excuses despite the presence of all the elements. See LaFave & Scott at 615, n 4. To the extent Luther stated that duress “acknowledg[es] the will to do the act complained of but seek[s] to excuse it,” id. at 622, its reasoning correctly implied that the defense is an affirmative defense, and we would not hold otherwise.
Although there has been disagreement among authorities with regard to this issue, cf. State v Riker, 123 Wash 2d 351; 869 P2d 43 (1994) (requiring the defendant to prove duress by a preponderance of the evidence), with People v Graham, 57 Cal App 3d 238; 129 Cal Rptr 31 (1976) (holding duress negates the voluntary-act requirement), we are persuaded that the correct view is that “even though [the defendant] has done the act the crime requires and has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.” LaFave & Scott, supra at 615.
In other words, to raise the affirmative defense of duress, the defendant must offer evidence that the prohibited act was done under circumstances that excuse its commission.
Additionally, LaFave and Scott identify factors that may cause a defendant to forfeit the defense of duress, i.e., where the defendant “does not take advantage of a reasonable opportunity to escape, where that can be done without exposing himself unduly to death or serious bodily injury,” and where the defendant “fails to terminate his conduct ‘as soon as the claimed duress . . . ha[s] lost its coercive force.’ ” Id. at § 5.3, pp 619-620.
The prima facie elements required to establish the defense in federal courts are substantially similar to those required in Michigan:
(1) an immediate threat of death or serious bodily injury; (2) a well-grounded fear that the threat will be carried out; and (3) lack of a reasonable opportunity to escape the threatened harm. [United States v Beltran-Rios, 878 F2d 1208, 1213 (CA 9, 1989).]
Prima facie evidence is:
Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient ... to sustain a judgment in favor of the issue which it supports .... [Black’s Law Dictionary (6th ed), p 1190.]
Because Ms. Lemons failed to carry her burden of production, we need not address here the issue whether the prosecution must disprove at least an element beyond a reasonable doubt once the defendant satisfies his burden of production, or if the defendant also bears the burden of persuasion on the defense by a preponderance of the evidence. We observe, however, that due process is not offended where the state places the burden of persuasion on the defendant with respect to an affirmative defense such as insanity. Leland v Oregon, 343 US 790, 797-798; 72 S Ct 1002; 96 L Ed 1302 (1952); see also Mullaney v Wilbur, 421 US 684; 955 S Ct 1881; 44 L Ed 2d 508 (1975).
This is not an appropriate case to rely on battered spouse syndrome to explain Ms. Lemons’ actions because the defense never attempted to explicitly assert that defense at trial or on appeal. See People v Christel, 449 Mich 578; 537 NW2d 194 (1995).
The only evidence even remotely related to this prima facie requirement came from Mr. Lemons’ younger daughter when she testified that Mr. Lemons “forced” Ms. Lemons “at the beginning.” However, in almost the same breath she testified that with regard to the acts of cunnilingus with her, Ms. Lemons “slapped” her and “was . . . provoking the situation,” and that “all she said was ‘Lue.’ She didn’t, she didn’t object, she didn’t try to stop it.” We agree with the trial judge that this evidence was insufficient to permit a finding that immediate harm was threatened that created a reasonable fear and required the acts of sexual abuse to avoid the threatened harm.
In fact, the evidence offered by the prosecution, which was rebutted only by Ms. Lemons’ denials, was directly contrary to the establishment of any such element, in that Ms. Lemons’ son testified (1) that he was forced to perform oral sex when Mr. Lemons was not present, and (2) that Ms. Lemons refused to engage in any sexual act with her son for two years without suffering any consequences from Mr. Lemons. In light of these facts, had the instruction been required, we would conclude its omission was harmless error, in that the prosecutor’s evidence sufficiently rebutted the elements of the defense.
A fortiori, the defense presented no evidence from which the jury could conclude that the acts were themselves committed under duress, that is, that Ms. Lemons was justified in her fear of a threat of death or serious bodily harm that was “operating at the time of the alleged act.”
The parties have not briefed the question whether sexual abuse of a child may be justified by duress.
The situation might be different if a defendant testified he had no memory and another witness testified that another person was holding a gun to the defendant’s head when he took the money from the victim’s cash register. While it is true that an inconsistent defense does not necessarily stand in the way of presenting an affirmative defense, the defendant must produce the evidentiary basis for the defense in order to require the court to tender an instruction.
Counsel argued that the CSC I cunnilingus requires “some sort of specific testimony indicating some kind of oral sexual act, such as lips or tongue or vaginal area or licking or something to that effect in order to establish cunnilingus,” but that the evidence only established facial contact “without any further description.”
Like the Court of Appeals in People v Garrow, 99 Mich App 834, 839-840; 298 NW2d 627 (1980), “[w]e recognize that in most cases, second-degree [CSC] is a factually included offense within first-degree [CSC], for sexual penetration is usually for a sexual purpose.” However, the additional intent requirement for CSC n mandates that it be considered a cognate lesser offense of CSC I. Similarly, in Bailey, supra, we held that assault with intent to commit great bodily harm is a cognate lesser offense of second-degree murder because although the intent necessary to commit the lesser offense “is sufficient to meet the required mens rea for second-degree murder, the greater crime can also be committed with different mental states than intent to inflict great bodily harm.” Id. at 669.
The trial judge specifically ordered that if the defendants ever become eligible for parole, he or his successor judge is to be notified so that the court may exercise its right to comment on the case to the parole board.
MCL 791.234(4); MSA 28.2304(4) defines parole eligibility.
While we recognize, as observed by the dissent, that parole eligibility is authorized for Mr. Lemons’ offenses under MCL 791.233b(w); MSA 28.2303(3)(w), we find nothing in that statute to indicate that parole eligibility is required where the sentence imposed is valid in that it is indeterminate, within the legislatively authorized range, and proportionate. | [
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Riley, J.
In the matter before us, this Court is asked to decide whether the district court abused its discretion in binding defendant over on two counts of conspiring to possess with an intent to deliver cocaine, where one count involved more than 650 grams and the other was for over 225 grams but less than 650 grams of cocaine. The only evidence presented regarding each count was the coconspirators’ testimony, which established that defendant delivered various amounts of cocaine over defined periods of time.
This Court holds that in order to bind defendant over on the two counts of conspiracy there must be probable cause to believe that defendant and the coconspirators shared the specific intent to accomplish the substantive offenses charged. We conclude, with respect to count I, that the district court’s finding that probable cause existed to believe defendant was guilty of conspiracy to possess with an intent to deliver more than 650 grams of cocaine did not constitute an abuse of discretion because the evidence was sufficient to allow a reasonable trier of fact to infer that defendant and the coconspirator had a specific intent to deliver the statutory amount as charged. Also, we conclude, with respect to count n, that it was reasonable to find probable cause existed to believe that defendant conspired with the coconspirator to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine because there was testimony at the preliminary examination that enabled the district court to infer that defendant and his coconspirator specifically intended to combine to deliver over 225 but less than 650 grams of cocaine.
Therefore, we affirm both the Court of Appeals decision concluding that there was no abuse of discretion in the district court’s bindover on count I and its decision reversing the circuit court’s quashing of the indictment on count n.
i
On June 26, 1991, pursuant to MCL 767.7b(l), (2); MSA 28.950(1), (2), defendant was indicted by a multicounty grand jury on two counts of conspiracy to possess with an intent to deliver cocaine. Count I alleges that defendant conspired with Cathy Boyer to possess with an intent to deliver more than 650 grams of cocaine between the fall of 1989 and the summer of 1990 in violation of MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). Count n alleges that defendant conspired with Suzanne Kausler to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine between March 1990 and December 1990 in violation of MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii).
A preliminary examination was held on May 13, 1992. At the hearing, it was established that defendant, who lived in Ann Arbor, Michigan, supplied cocaine to Cathy Boyer, who resided in Charlevoix, Michigan. Boyer obtained the cocaine for herself and for her husband. Boyer and her husband were introduced to Suzanne Kausler in February 1990 by a mutual friend, Anna Nawrocki. Boyer eventually began purchasing cocaine on Kausler’s behalf. Boyer would give two-thirds of the cocaine she purchased to Kausler, and keep one-third for herself as payment.
When Boyer wanted to purchase cocaine, she would telephone defendant. Sometimes she would drive to Ann Arbor to make the purchases, while at other times she and defendant would meet either in West Branch or Bay City, which was approximately halfway between their homes. Boyer’s husband, and other individuals, occasionally accompanied her on her trips to Ann Arbor. When Boyer would arrive at defendant’s residence, her passengers would usually wait for her while she met with defendant to .obtain the cocaine. These individuals were aware of the purpose of the drive and sometimes used some of the cocaine on the drive back. Boyer testified that she drove to Ann Arbor on an irregular basis, but there was testimony that she drove there approximately twice a week, from March through the beginning of May 1990. She drove to Ann Arbor six or seven times before making her first purchase for Kausler and traveled to Ann Arbor an additional six or seven times with Kausler. Boyer also testified that she would receive between three and seven ounces on these trips (approximately between 84 and 196 grams of cocaine).
Boyer purchased approximately fifty-four ounces (1,530.90 grams) of cocaine from defendant between the fall of 1989 until she moved to Florida in May of 1990, because she feared the possibility of a grand jury indictment. Thereafter, Kausler began purchasing directly from defendant. Besides meeting defendant at various locations in Ann Arbor, she met him between two and five times in West Branch, purchasing anywhere from 56.70 grams to 113.40 grams of cocaine. At some point, defendant knew Kausler was distributing to others some of the cocaine she received. Additionally, on at least one occasion, defendant drove to Kausler’s residence to visit and bring her cocaine. At that same time, defendant and Kausler reached an agreement “for a very large purchase” of 226.80 grams of cocaine. She paid him approximately $8,800. Kausler purchased approximately twenty ounces (567 grams) of cocaine from the time Boyer moved to Florida until December 1990.
At the conclusion of the preliminary examination, defendant objected to being bound over, arguing that the people failed to present evidence that would permit a finding that probable cause existed to believe that defendant intended to deliver the statutory amounts as charged, i.e., he intended to combine with Boyer and Kausler, respectively, to deliver the statutory amounts as charged, and Boyer and Kausler intended to combine with defendant to deliver the statutory amounts as charged to a third party. The people argued that case law precedent permitted the aggregating of the various amounts exchanged when conspiracy is at issue. They contended that it was legally permissible to infer defendant’s specific intentions to deliver the statutory amounts charged with respect to each count and that a reasonable inference could be made to believe that the cocaine was redistributed to third parties on the basis of volume alone.
Finding persuasive the people’s contention, the district court concluded that probable cause existed to believe defendant committed the charged offenses.
On November 3, 1992, the circuit court concluded that the district court abused its discretion, finding that there was insufficient evidence at the preliminary examination “to establish probable cause that the defendant conspired to deliver the volume charged.”
The Court of Appeals peremptorily reversed the circuit court’s order and reinstated the charges. On February 28, 1994, in lieu of granting leave to appeal, this Court vacated the Court of Appeals peremptory order and remanded the matter for plenary consideration. On December 28, 1995, the Court of Appeals reversed the circuit court’s order and reinstated the charges. We subsequently granted defendant’s motion for immediate consideration.
n
In a preliminary examination, a district court’s function is to determine whether the evidence is sufficient to cause an individual marked by discreetness and caution to have a reasonable belief that the defendant is guilty as charged. People v King, 412 Mich 145, 152-153; 312 NW2d 629 (1981); People v Asta, 337 Mich 590; 60 NW2d 472 (1953). A bindover is not a finding of guilt beyond a reasonable doubt. Rather, “ ‘[a] preliminary hearing,’ ” the Supreme Court has said, “ ‘is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.’ ” Coleman v Burnett, 155 US App DC 302, 316; 477 F2d 1187 (1973), quoting Bar ber v Page, 390 US 719, 725; 88 S Ct 1318; 20 L Ed 2d 255 (1968). In Coleman, the court stated:
It is the contrast of probable cause and proof beyond a reasonable doubt that inevitably makes for examinatorial differences between the preliminary hearing and the trial. Probable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. Proof beyond a reasonable doubt, on the other hand, connotes evidence strong enough to create an abiding conviction of guilt to a moral certainty. The gap between these two concepts is broad. A magistrate may become satisfied about probable cause on much less than he would need to be convinced. Since he does not sit to pass on guilt or innocence, he could legitimately find probable cause while personally entertaining some reservations. By the same token, a showing of probable cause may stop considerably short of proof beyond a reasonable doubt, and evidence that leaves some doubt may yet demonstrate probable cause. [Id. at 316-317 (emphasis added).]
The decision to bind a defendant over is reviewed for abuse of discretion. King, supra; People v Talley, 410 Mich 378; 301 NW2d 809 (1981). Thus, in this case, we review for abuse of discretion the district court’s determination that the evidence was sufficient to warrant a bindover on each count of conspiracy, i.e., we decide whether the evidence was “sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of [defendant’s] guilt” for (1) conspiring with Boyer to possess with an intent to deliver more than 650 grams of cocaine and (2) conspiring with Kausler to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine.
in
Conspiracy is defined by common law as “ ‘a partnership in criminal purposes ....’” People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974), quoting United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910). Under such a partnership, two or more individuals must have voluntarily agreed to effectuate the commission of a criminal offense. Establishing that the individuals specifically intended to combine to pursue the criminal objective of their agreement is critical because “ ‘[t]he gist of the offense of conspiracy lies in the unlawful agreement’ . . . [meaning] . . . [t]he crime is complete upon for mation of the agreement . . . People v Carter, 415 Mich 558, 568; 330 NW2d 314 (1982).
The specific intent to combine, including knowledge of that intent, must be shared by two or more individuals because “there can be no conspiracy without a combination of two or more.” People v Blume, 443 Mich 476, 485; 505 NW2d 843 (1993); Atley, supra at 310. This combination of two or more is essential because “[t]he rationale underlying . . . [the crime of] conspiracy ... is based on the increased [societal] dangers presented by the agreement between the plurality of actors.” People v Davis, 408 Mich 255, 273, n 5, 279; 290 NW2d 366 (1980). Accordingly, there must be proof demonstrating that the parties specifically intended to further, promote, advance, or pursue an unlawful objective. Alley, supra at 311.
Identifying the objectives and even the participants of an unlawful agreement is often difficult because of the clandestine nature of criminal conspiracies. Thus, direct proof of the conspiracy is not essential; instead, proof may be derived from the circumstances, acts, and conduct of the parties. See, e.g., People v Brynski, 347 Mich 599; 81 NW2d 374 (1957). Inferences may be made because such evidence sheds light on the coconspirators’ intentions.
A criminal agreement is defined by the scope of the commitment of its co-conspirators. See generally Marcus, P, Prosecution and Defense of Conspiracy Cases, §§ 4:01-4:02 (1995). Thus, where a defendant is unaware of the overall objective of an alleged conspiracy or lacks any interest in, and therefore any commitment to, that objective, he is not a member of the conspiracy. [United States v Smith, 82 F3d 1261, 1269 (CA 3, 1996).]
“[C]ourts must look to circumstantial evidence to determine the conspiracy’s scope”; however, any inferences drawn must be reasonable. Such an approach is essential so that it may be accurately ascertained what particular substantive offense was intended by the coconspirators.
The predicate substantive offenses with which defendant was charged are embodied in MCL 333.7401; MSA 14.15(7401). It provides, in pertinent part:
(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, an official prescription form, or a counterfeit prescription form. . . .
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) and:
(i) Which is in an amount of 650 grams or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life.
(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years.
To be convicted of conspiracy to possess with intent to deliver a controlled substance, the people must prove that (1) the defendant possessed the specific intent to deliver the statutory minimum as charged, (2) his coconspirators possessed the specific intent to deliver the statutory minimum as charged, and (3) the defendant and his coconspirators possessed the specific intent to combine to deliver the statutory minimum as charged to a third person. See, e.g., Blume, supra at 485, 508, n 31.
IV
The question that we are asked' to decide is not whether the evidence presented at the preliminary examination was sufficient to sustain a conviction of the offenses as alleged, but, rather, whether the evidence presented was sufficient to enable the district court to believe probable cause existed to bind defendant over on two counts of conspiracy, i.e., whether the evidence was sufficient to enable a person marked by common sense to have entertained a reasonable belief of defendant’s guilt for (1) conspiring with Boyer to possess with an intent to deliver over 650 grams of cocaine, and (2) conspiring with Kausler to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine.
A
The Court of Appeals addressed a similar issue in People v Porterfield, 128 Mich App 35, 38; 339 NW2d 683 (1983). In Porterfield, the defendant argued that the evidence presented at trial “was insufficient . . . to establish one conspiracy . . . .” Specifically, the defendant contended “that it was error to charge him with an ongoing conspiracy to deliver over 50 grams of a mixture containing heroin rather than multiple separate conspiracies to deliver amounts under 50 grams.” Id. at 41. He “base[d] his argument solely upon the fact that the alleged separate transactions could not be aggregated to show that there was an agreement to deliver over 50 grams of a mixture containing a controlled substance” because
the evidence merely showed day-to-day operations in which there were no outstanding agreements between the parties beyond the consignment sale of 10 to 20 coin envelopes which held a mixture containing heroin to the two runners whose testimony at trial provided the primary evidence .... [Id. at 38.]
However, before it addressed the defendant’s argument, the Porterfield Court concluded that the people established that (1) the defendant possessed the “intent to deliver over 50 grams of a mixture contain ing heroin,” (2) defendant’s coconspirators each “had the intent to deliver over 50 grams of a mixture containing heroin,” and (3) the defendant and his coconspirators possessed “the intent to combine with others to deliver over 50 grams of a mixture containing heroin” to the streets for profit. Having con- eluded that the evidence was sufficient to support the conspiracy conviction, the Porterfield Court then addressed the defendant’s argument regarding “the accumulation of the alleged multiple transactions into one general conspiracy . . . Id. at 39. The Court stated that the alleged separate drug transactions were “smaller conspiracies constituting parts of a ‘single scheme or plan,’ ” because the evidence established that the conduct of the defendant and his coconspirators was all in furtherance of a particular criminal objective, i.e., the defendant was part of an “ongoing” heroin delivery operation that occurred on almost a daily basis with the objective to deliver over 50 grams of a mixture containing heroin to the streets. See id. at 38-41.
We are persuaded that the focus of the Porterfield Court was on the specific intent of the parties to the conspiracy regarding the conspiracy’s goal, scope, and criminal objective. The Court determined the conspiracy had as its objective the goal of delivering over fifty grams of a mixture containing heroin to the streets for profit. There was testimony that the coconspirators’ conduct, “the mixing, packaging, delivery and sale,” occurred on almost a daily basis, all of which the Court concluded must have “contributed to the promotion of” their objective to deliver to the streets for profit a mixture containing over fifty grams of heroin. Id. at 41. Moreover, the testimony evidenced that one of the coconspirators “was present when [the] defendant purchased three boxes of envelopes,” each box of envelopes contained five hundred envelopes, and testimony established that two hundred envelopes “would total 50 grams of heroin.” Id. at 40. Fifteen hundred envelopes would have totaled 375 grams of heroin.
Hence, there was strong evidence establishing that the defendant and his coconspirators conspired to deliver approximately 375 grams of a mixture containing heroin. The record clearly evidenced that they knew the scope of their operation. It was irrelevant whether they were actually able to transact this amount before they were arrested. The fact that they did transact more than 50 grams is important only to shed light on the defendant’s agreement, i.e., to deliver, with the help of his coconspirators, approximately 375 grams of a mixture containing heroin.
B
In the instant case, with respect to count I, the district court, relying on Porterfield, supra, concluded that there was probable cause to believe defendant conspired with Boyer to possess with an intent to deliver over 650 grams of cocaine from the fall of 1989 to the spring of 1990. It stated:
I heard the testimony of Miss Boyer. Miss Boyer, when she started dealing to Kausler, called, made an — called to the Defendant here, and said, “I’ve got somebody else’s money. Will you furnish?” He did. It came back. Miss Kausler testified she had a party and she used it up and gave it to her friends. That’s conspiracy. [There is] [n]o question about it [i]n my mind. And the amounts she purchased over the period of time, through Cathy Boyer, who was skimming off the top, by the way, with or without knowledge of the Defendant. I don’t know, she said it was without, but she was skimming. She was getting drugs, she was getting money. That’s a conspiracy. And it was ongoing. So on Count I, involving Boyer, I’m gonna bind over on that, just like it’s charged.
The circuit court distinguished Porterfield, supra, concluding that the binding over of defendant on the charges as alleged constituted an abuse of discretion.
A majority of the Court of Appeals, relying on Porterfield held:
[S]maller amounts could be aggregated to charge [the defendant] with conspiracy to deliver over 50 grams . . . [even though] the evidence [in this instance] ... is not as strong as it was in Porterfield, the district court did not abuse its discretion in finding that probable cause existed to believe that defendant committed the charged offenses. [Unpublished opinion per curiam, issued December 28, 1995 (Docket No. 173326), slip op at l-2.[ ]
Considering all the evidence presented by the people, we agree with the result of the Court of Appeals and conclude that the question whether defendant conspired to commit the substantive offense may be guided by the general principles of conspiracy law articulated in Porterfield.
In the instant case, the relationship between Boyer and defendant may be broken down into two phases. The first phase, lasted from fall 1989 until February 1990. During this phase, Boyer testified that she made one or two trips to Ann Arbor a month, even though not every trip was for the purpose of purchasing cocaine. Boyer also testified that she usually purchased an ounce (28.35 grams) of cocaine at a time. Thus, over the course of this time, it is reasonable to believe that four ounces (113.40 grams) of cocaine were purchased.
The second phase, as alleged by the people in the indictment, began in February 1990 and lasted until May 1990. In February, the quantities Boyer purchased increased because of Kausler’s needs. Purchases occurred at a rate of one or two a week, and the parties began to use designated locations, approximately halfway between Ann Arbor and Petoskey, to make the purchases. Boyer testified that she told defendant that she was purchasing the larger amounts so that' she could sell it to Kausler. The amount purchased from mid-February until May totaled fifty ounces (1,417.50 grams).
Our assessment of this record persuades us that the people presented evidence that would permit “a person of ordinary prudence and caution to conscientiously entertain a reasonable belief” that (1) defendant could have conspired with Boyer to possess with an intent to deliver over 650 grams of cocaine; (2) Boyer could have conspired with defendant to possess with an intent to deliver over 650 grams of cocaine; (3) defendant and Boyer could have possessed the intent to combine to deliver to Kausler and others over 650 grams of cocaine. See Porterfield, supra. Our conclusion is made in recognition that this is merely a bindover and not an issue of guilt beyond a reasonable doubt. Coleman, supra. We may only overturn the district court’s determination if we conclude that its finding was an abuse of discretion. Talley, supra. Because we cannot say that the district court’s finding was “so palpably and grossly violative of fact and logic,” we conclude that its finding was not an abuse of discretion.
We therefore conclude that it was not an abuse of discretion to find that defendant could have conspired with Boyer to possess with an intent to deliver over 650 grams of cocaine between the fall of 1989 and the spring of 1990.
c
We now turn to whether the district court’s finding of probable cause with respect to count n was an abuse of discretion.
The district court made the following findings in concluding that there was probable cause to believe defendant conspired with Kausler to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine between the spring of 1990 and December 1990:
When we get to the Kausler matter, we got a little bit different situation, but there was definitely a conspiracy there to deliver. She was buying eight ounces. She paid in advance for that money [sic (cocaine)] and there was an agreement to send the cocaine up here. And although she said she didn’t use it all, this Court’s going to infer that she couldn’t have used eight ounces, that she had it for other purposes, and she did later testify she sold sometimes two or three grams. And she distribute [d] to someone on the way back. And they tried it. Driving — not on that occasion, but other ones when she went with Yeager, she was dealing directly with this man. Mr. Yeager was involved. He was getting part of it. He was known there.
Our assessment of the record persuades us that it was not an abuse of discretion to find that probable cause existed to believe defendant conspired with Kausler to possess with an intent to deliver more than 225 grams but less than 650 grams of cocaine.
The people alleged that the agreement was formed at a point sometime between March 1990 to December 1990. The district court inferred that defendant formed an intent to deliver over 225 grams but less than 650 grams of cocaine sometime during that period. It also must have inferred that Kausler formed the very same intent as defendant and that this intent was shared by both of them to combine to deliver over 225 grams but less than 650 grams of cocaine.
We conclude that the record was sufficient to enable the district court to find that probable cause : existed to believe that (1) defendant could have conspired to possess with an intent to deliver over 225 ■ grams but less than 650 grams of cocaine, (2) Kausler could have conspired to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine, and (3) defendant and Kausler could have possessed the intent to combine to deliver to others the statutory minimum as charged. See Porterfield, supra. Kausler testified that she and defendant agreed to combine and specifically intended to pursue the criminal objective of delivering that amount of cocaine. Specifically, when being questioned by the people, Kausler outlined the course of her dealings. with defendant after Boyer left for Florida:
[The People]: When was the first time after that that you had a transaction with Mr. Justice directly?
[Kausler]: It wouldn’t have been very long after that. Maybe a month, at the most.
[The People]: And where did the first transaction take place, when you went by yourself?
[Kausler]: I don’t remember. It, it — I don’t remember. It was either at his house, or at West Branch.
[The People]: Okay, let’s talk about West Branch. How many times did you meet him there?
[Kausler]: Anywhere between two and five.
[The People]: And what would happen when you’d met?
[Kausler]: I usually get cocaine.
[The People]: Would you be by yourself? Everytime [sic]?
[Kausler]: No.
[The People]: Who else would go with you?
[Kausler]: James Yeager.
[The People]: How much, uh, would you purchase when you met him at West Branch, each time? Was it — did it vary, or . . .
[Kausler]: It varied, um . . .
[The People]: From what to what?
[Kausler]: . . . sometimes it was two, sometimes it was four ounces.
* * *
[The People]: What would be the total number of times that you directly purchased from [defendant]?
[Kausler]: It’s very difficult to remember the exact amount, but probably ten, maybe more.
Kausler also testified that on one occasion she purchased approximately 226.80 grams of cocaine from defendant, and he was aware that she was distributing the cocaine. See n 9.
Kausler testified as follows regarding the specifics of her arrangement with defendant with respect to the delivery of cocaine when he visited her:
[The People]: Okay, what was the discussion?
[Kausler]: We were — I think we were talking about why Cathy wanted me to send her the money for coke. And then, um, have [her] send me the coke from [defendant], so she could get — get more money, and step on it.
[The People]: Um . . .
[Kausler]: Excuse me.
[The People]: ... did he provide any cocaine to you, at that time? On that visit?
[Kausler]: It seems like he gave me some, so I could get high, yes.
[The People]: You don’t remember how much that was?
[Kausler]: No. But at that point, I was addicted, so it took a bit to get high.
[The People]: Did you, uh, make any arrangements, at that time, for a very large purchase?
[Kausler]: Possibly.
[The People]: Okay. What was that, uh, transaction about?
[Kausler]: That probably would have been my last transaction. Eight ounces [226.80 grams of cocaine].
Kausler’s testimony evidenced that it was not “palpably and grossly violative of fact and logic” for the district court to have inferred that defendant possessed the requisite intent to conspire with Kausler to possess with intent to deliver more than 225 grams but less than 650 grams of cocaine at a point during the period charged by the people.
conclusion
This Court holds that in order to bind defendant over for conspiracy there must be probable cause to believe that the respective coconspirators intended to accomplish the substantive offense. We conclude, therefore, that, with regard to count I, the district court’s finding that probable cause existed to believe defendant was guilty of conspiracy did not constitute an abuse of discretion because the evidence was sufficient to reasonably infer that defendant and Boyer could have intended to possess with an intent to deliver over 650 grams of cocaine at a point during the period charged by the people. Also, we conclude with respect to count II that it was not an abuse of discretion to find probable cause existed to believe defendant conspired with Kausler to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine because testimony permitted the district court to reasonably infer that defendant and Kausler combined to accomplish the criminal objective as charged. Therefore, we affirm both the deci sion of the Court of Appeals with respect to count I concluding that there was no abuse of discretion in the district court’s bindover and its decision to reverse the circuit court’s quashing of the indictment with respect to count n.
Mat,LETT, C.J., and Brickley, Boyle, and Weaver, JJ., concurred with Riley, J.
The indictment against defendant provided in pertinent part:
Count I
[Defendant], . . . from about Fall, 1989 through Summer, 1990, ... did unlawfully conspire, combine, confederate and agree together with Kathy Boyer to Deliver and/or Possess with Intent to Deliver More than 650 grams of a mixture containing the controlled substance cocaine; contrary to MCL 333.7401(2)(aXi); MSA 14.15(740l)(2)(a)(i).
Count II
[Defendant], . . . from about March, 1990, through December, 1990, . . . did unlawfully conspire, combine, confederate and agree together with Susan Cosier [sic] to Deliver and/or Possess with Intent to Deliver more than 225 grams, but less than 650 grams of a mixture containing the controlled substance cocaine; contrary to MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii).
Boyer and her husband were permitted to plead guilty to possession with an intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(740l)(2)(a)(iv), in exchange for their testimony and received lifetime probation.
Kausler resided in Petoskey, Michigan.
Kausler entered into a plea agreement with the people, in which she agreed to testify in exchange for being permitted to plead guilty to possession with an intent to deliver less than 50 grams of cocaine. MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv).
Boyer started to purchase larger amounts of cocaine sometime during the spring of 1990. Boyer testified that she met Kausler at a birthday party held on February 13 or 14, 1990, and at that party Kausler testified she first tried cocaine.
The preliminary examination is unclear regarding exact dates. Therefore, we are unable to determine the specific date she started to bring others on her trips. Boyer did testify, however, that she started visiting defendant in the fall of 1989 but, that she did “not always” get cocaine on these visits.
The record is also unclear regarding the total number of trips Boyer made to Ann Arbor, West Branch, and Bay City, respectively.
James Yeager, a prosecution witness, stated that he may have made as many as “a dozen, or less” trips where he met with defendant (Yeager agreed “to plead guilty to Possession of Cocaine,” in exchange for his testimony). He testified that the “[s]mallest, [purchase was] probably a half ounce [approximately 14.175 grams] . . . [and that] . . . the largest .. . [was] four ounces [113.40 grams],” with four ounces being purchased on “just . . . one of the trips.” Nonetheless, the district court noted that Yeager could not testify “with any possible accuracy,” and sustained defense counsel’s objection regarding “an estimate of the total amount, of ounces, for all the trips that [he] made.”
Kausler testified that she arranged to meet defendant in West Branch after Boyer had moved to Florida;
[The People]: How were the arrangements made to have a transaction there?
* * *
[Kausler]: I had [defendant’s] phone number, and we’d made an arrangement on the phone.
The people questioned Boyer regarding defendant’s knowledge of what Kausler was doing with the cocaine:
[Boyer]: You know. I mean, we’d told him [defendant] that she was, you know, she was doing a lot of it herself, but she was also having other people distribute it. But, you know, that was, you know, how else would she be able to get three ounces [85.05 grams] and have it gone in three days, and be wanting more, if she wasn’t getting rid of some of it. She couldn’t physically do that much.
When questioned by the people, Kausler testified about the approximate amount she purchased from defendant:
[The People]: What would you say would be the total amount of cocaine that you purchased from [defendant] from the time that you first became involved with him, until the time you stopped using?
[Kausler]: Including Cathy [Boyer]?
[The People]: Yes.
[Kausler]: I’m trying to remember what it said in the, uh, testimony this morning, that I was reading. Because I’m — I have a mental block right now. I can’t even think.
[The People]: Okay. Well, how about just time [sic] period after Cathy [Boyer] left? From Memorial day ‘til the time you quit?
[Kausler]: I’m gonna say twenty — fifteen, twenty ounces.
The people vigorously stressed this point because it was concerned about future arguments regarding Wharton’s Rule. See People v Davis, 408 Mich 255, 285; 290 NW2d 366 (1980) (“Wharton’s Rule declares that an agreement to commit an offense by its nature requires the cooperative action of two or more persons cannot be prosecuted as a conspiracy”).
444 Mich 964 (1994).
451 Mich 894 (1996) (The grant was limited to whether the district court improperly concluded that it could aggregate the various drug transactions and find probable cause to charge defendant with two counts of conspiracy).
In King, supra at 153-154, we remarked:
The [district court] “must have . . . good reason to believe [the defendant is] guilty of the crime charged.” The [district court] has “the duty to pass judgment not only on the weight and competency of the evidence, but also the credibility of the witnesses” and may consider evidence in defense. He or she should not, however, discharge “when evidence conflicts or raises reasonable doubt of [the defendant’s] guilt,” since that presents the classic issue for the trier of fact. [Citations omitted.]
See also People v Hill, 433 Mich 464, 469; 446 NW2d 140 (1989), citing People v Doss, 406 Mich 90; 276 NW2d 9 (1979).
See Coleman v Burnett, supra at 317.
The statutory provision merely prescribes punishment for conspiring to commit the substantive offense:
Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:
. . . [T]he person convicted'under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed. [MCL 750.157a(a); MSA 28.354(l)(a).]
See, e.g., United States v Flores-Rivera, 56 F3d 319, 323 (CA 1, 1995), quoting United States v Piper, 35 F3d 611, 615 (CA 1, 1994) (“The government must prove that the defendant possessed both ‘an intent to agree and an intent to effectuate the commission of the substantive offense’ ”).
The term “combine” means that all the participants formed an agreement, express or implied, to accomplish the objective of the conspiracy. That is, all parties shared knowledge that the narcotics are ultimately to be delivered to a third party for consumption and all agreed to meet this objective of delivery by fulfilling their agreements. See, e.g., People v Blume, 443 Mich 476; 505 NW2d 843 (1993); Atley, supra; People v Missouri, 100 Mich App 310; 299 NW2d 346 (1980).
An agreement to commit a particular crime cannot be prosecuted as a conspiracy where the number of alleged coconspirators does not exceed the minimum number of persons logically necessary to complete the substantive offense. Davis, n 11 supra.
Blume, n 19 supra at 482. In Blume, supra at 484, this Court noted that "intent” and “knowledge” of that intent is essential: “Knowledge” is required because “[w]ithout the knowledge, the intent cannot exist.” Direct Sales Co v United States, 319 US 703, 711; 63 S Ct 1265; 87 L Ed 1674 (1943). United States v Falcone, 311 US 205, 210-211; 61 S Ct 204; 85 L Ed 128 (1940). While, “intent” is required because knowing that “someone proposes unlawful action alone is not enough to find involvement in a conspiracy . . . [i.e.] ‘[t]hose having no knowledge of the conspiracy are not conspirators, United States v Hirsh, 100 US 33, 34 [25 L Ed 539 (1879)] . . . ; [for example] one who without more furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale may have furthered the object of a conspiracy to which the distiller was a party but which the supplier had no knowledge.’ Falcone, supra at 210-211.”
The dissent went further by remarking:
[WJhile “knowledge is the foundation of intent,” and mere knowledge of a conspiracy or its illegal objective, without more, is not enough to prove intent, we may examine the defendant’s conduct to determine whether the defendant provided “informed and interested cooperation, stimulation, [or] instigation.” [Blume, supra at 507-508 (Boyle, J., dissenting; citations omitted; emphasis added).]
In Blume, supra at 508-509 (Boyle, X, dissenting), citing Carter, supra at 570, quoting Callanan v United States, 364 US 587, 593-594; 81 S Ct 321; 5 L Ed 2d 312 (1961), the Court noted:
The agreement to commit a criminal act that is the gist of the offense of conspiracy is punished because of the “special danger to society presented by group as opposed to individual activity.
“Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.”
In Brynski, supra at 605, citing People v Beller, 294 Mich 464; 293 NW 720 (1940), this Court observed:
The rule has long been recognized that a conspiracy may, and generally is, established by circumstantial evidence and that positive proof is not required but the circumstances must be within safe bounds of relevancy and be such as to warrant a fair inference of the ultimate facts.
United States v Kalish, 690 F2d 1144, 1151 (CA 5, 1982).
Such evidence may include “the conduct of the alleged participants or evidence of a scheme.” United States v Morgan, 835 F2d 79, 82 (CA 5, 1987). The evidence, however, must show beyond a reasonable doubt that two or more persons came to a mutual understanding to violate the particular laws in question. Id.
For example, in People v Missouri, n 19 supra, the defendants argued that the evidence only established a “buyer-seller relationship.” The Court of Appeals disagreed by concluding as follows:
[A]ll parties shared the knowledge that the narcotics were to be ultimately delivered for consumption by street users. All agreed to meet the object — delivery—by fulfilling their agreements to provide narcotics at various links along the chain .... [Id. at 343 (emphasis added).]
On the basis of this evidence, the Court held that a “chain” conspiracy was established, i.e., drug smugglers sold to intermediaries who, in turn, sold to retailers. Id. at 343, citing United States v Bruno, 105 F2d 921 (CA 2, 1939), rev’d on other grounds 308 US 287; 60 S Ct 198; 84 L Ed 257 (1939). See also People v Cyr, 113 Mich App 213; 317 NW2d 857 (1982).
The establishment of a mere buyer-seller relationship will not evidence a conspiracy to possess with intent to deliver a controlled substance because the consummation of the crime of conspiracy necessarily involves the cooperation of two persons. Blume, supra at 482, n 11, citing People v Puig, 85 Misc 2d 228, 232; 378 NYS2d 925 (1976). Rather, in order to properly prosecute a drug conspiracy case, the unlawful agreement must have included a plurality of concerted action that increased the likelihood of the attainment of the coconspirators’ criminal objective, because the applicability of Wharton’s Rule depends on the elements encompassing the coconspirators’ targeted substantive offense.
See Coleman, supra at 316-317.
The Court deduced from the following evidence that the defendant had the specific “intent to deliver” over fifty grams of heroin: the drug deliveries occurred almost daily, the defendant, purchased a large number of coin wrappers that he used to package the drugs, testimony of coconspirators evidenced the existence of a profitable drug enterprise, all coconspirators kept track of their part of the drug venture and fulfilled their part of the agreement, the defendant introduced his coconspirators to the customers to foster trust between them, when the coconspirators sold their drug supply they contacted the defendant who then would “cut and mix[ ] more for sale,” an office supply employee testified that the defendant, accompanied by one of the coconspirators, “purchased large quantities of coin envelopes,” and expert testimony established that the volume defendant was dealing in “would equal 56 grams of heroin.” Id. at 39-40.
The Court deduced from the following evidence that coconspirators had the specific intent to deliver over fifty grams of heroin:
[T]here was sufficient evidence to prove beyond a reasonable doubt that the coconspirators, Facen and Williams, combined with the defendant, each having the knowledge that they were going to deliver and continue to deliver heroin for profit. The evidence established that both Facen and Williams had the requisite intent to commit the crime of delivery of a controlled substance. [Id. at 40.]
The Court deduced the scope of the coconspirators’ unlawful agreement from the following evidence:
[T]hat there was sufficient evidence to establish defendant’s intent to combine with others to deliver over 50 grams of a mixture containing heroin. Although a codefendant was acquitted, testimony established that there was an intent to combine with Facen and Williams to deliver the narcotics. Furthermore, the testimony also indicated that defendant introduced Williams to established customers so that Williams could be trusted on the street. Facen and Williams helped package the merchandise for sale. Facen received the heroin from either Williams or the defendant. Both Williams and Facen’s testimony tended to show that the sales were not isolated incidents designed for a quick profit but were part of an ongoing venture to deliver heroin as long as it could be supplied, and sales were made in different areas where there would be known customers. [Id. at 40, i.e., all agreed to accomplish the objective of the agreement. See id. at 38-40 (emphasis added).]
Id. at 40.
Another coconspirator testified that “he sold approximately $1,000 worth of heroin each week,” making it reasonable to infer that the drug operation lasted at least a week, if not longer. Id. at 39. At ninety bags a day for the defendant and one of the coconspirators, and ten to eleven bags for the other, it was easy to infer that the defendant delivered over fifty grams of a mixture containing heroin.
Asta, supra at 611, citing People v Gilman, 121 Mich 187; 80 NW 4 (1899) (It is unnecessary “to show that the purpose contemplated by the unlawful agreement was accomplished”).
The circuit court stated:
These factors do not establish a brightline for determining aggregation in other cases. And so it’s not that every case has to meet the factors listed in Porterfield. However, this case, People v Justice, in my judgment does not come close to the factors that were involved in Porterfield. . . .
There was no evidence. At least it’s not argued here today that there was any evidence that the second transaction, or subsequent transactions, were arranged during the course of the previous transaction. On the contrary, later transactions were not even discussed.
And so this court finds that there was insufficient evidence at preliminary examination to establish probable cause that the defendant conspired to deliver the volume charged. . . .
If I find aggregation in this case, I think it would be necessary almost in any case where there were multiple transactions to aggregate them, and I don’t think this case meets the requirements of Porterfield. Even though inferences can be drawn and the volume is alleged to have been substantial, they were, in my estimation, separate transactions.
The Court of Appeals concluded:
The evidence indicated that Boyer and Kausler understood that, whenever they needed cocaine, they would call defendant. Boyer testified that she would get cocaine from defendant for her personal use and pay him for it when she could afford it. If, as defendant contends, he never knew if he would hear from Boyer again, he would not allow Boyer to pay him after he had already given her the cocaine. Boyer introduced Kausler to defendant so that she could purchase the drug directly from him. Both defendant and Kausler traveled more than one hundred miles to engage in the drug transactions. Boyer testified that both she and Kausler redistributed the cocaine purchased from defendant. [Id. at 2.]
See n 1.
It is reasonable to assume that Boyer’s testimony, where she refers to the “fall” through February, included the months of September, October, November, December and January. Her testimony that sometimes she made as many as two trips a month was offset by her testimony that not every trip resulted in a purchase. Nonetheless, it is reasonable to infer that on at least four trips, she made purchases, i.e., four purchases in five months. Thus, at an ounce (28.35 grams) a trip, her testimony supports the conclusion that at least four ounces (113.40 grams) of cocaine were purchased during this period.
See n 1.
On being questioned by the people, Boyer testified about the approximate quantities and dates of her purchases from defendant:
[The People]: Just to, uh, clarify dates. Could you, um, tell us when it was that you first started obtaining large quantities from Tommy Justice, and when you stopped?
[Boyer]: Um . . .
[The People]: Whether it for yourself [sic], or for Suzy, or whoever.
[Boyer]: It would have have [sic] to have been from some — the middle of February, and we stopped at the first of May. At the beginning of May
[The People]: Of what years?
[Boyer]: Of 1990. All in that — it was all that year. Small amount of time.
[The People]: And what would be the total amount that you bought, during that whole time period?
[Boyer]: Um, I’m not sure. Totally ever? That whole . . .
[The People]: Just during, uh, that time period of February ‘90 to May ‘90? Total number of ounces?
[Boyer]: For Suzy.
[The People]: For whoever.
[Boyer]: About — anything I say would be a guess.
[The People]: Well, your best approximation?
[Boyer]: We got her probably four or five ounces a week, for probably eight or nine, between eight and ten weeks, is all we dealt with her.
[The People]: Do you recall, uh, your testimony at the Grand Jury?
[Boyer]: Mm-huh. (Affirmative response)
[The People]: Do you recall testifying that you bought 50 ounces?
[Boyer]: That’s about what it would be.
[The People]: That sound about right?
[Boyer]: You take eight — if you take eight weeks, times four or five a week, it’d be about — you know, it was at a period, probably eight to ten weeks, ‘cause we started in the middle of February and we ended the, like the second week of May. Then there were some weeks that there were more, and some less.
Coleman, supra at 317.
Talley, supra at 387, quoting People v Charles O Williams, 386 Mich 565, 573; 194 NW2d 337 (1972).
Talley, supra at 387.
The stance the dissent takes conflicts with the fundamental rule that “[t]his court may not agree with the findings of [the] magistrate but it has no right to substitute its judgment . . . except in case of a clear abuse of discretion.” People v Dellabonda, 265 Mich 486, 491; 251 NW 594 (1933).
In this case, we are persuaded that the evidence presented by the people enabled the district court to reasonably entertain the belief that defendant, along with Boyer and Kausler, respectively, intended to possess with an intent to deliver the quantities of cocaine as alleged to third parties. It was reasonable for the district court to infer from the record that both Boyer and Kausler intended to deliver cocaine to others: Boyer routinely shared it with those who accompanied her on trips to make purchases and Kausler would provide it to those persons she associated with on various occasions.
In concluding that the district court’s findings were not “grossly violative of fact and logic,” we are not ruling that defendant, along with Boyer and Kausler, respectively, did conspire to possess with a specific intent to deliver the amounts as charged but, rather, we have merely determined that it cannot be said that the district court’s finding was an abuse of discretion, i.e., that it was “grossly violative of fact and logic.” | [
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Cavanagh, J.
The State of Michigan may exercise limited personal jurisdiction under its long-arm statute if two things are established. First, the rules of statutory construction must support the exercise of jurisdiction over the defendant. Second, the exercise of limited personal jurisdiction may not violate the Due Process Clause of the Fourteenth Amendment. Jeffrey v Rapid American Corp, 448 Mich 178, 184-185; 529 NW2d 644 (1995).
This case presents two issues for our review. First, we must decide whether the Court of Appeals erred in holding that the delivery of goods F.o.B. St. Louis, Missouri, was dispositive of whether the defendant, P. D. George, entered into a contract for materials to be furnished in Michigan pursuant to subsection 5 of the long-arm statute. MCL 600.715(5); MSA 27A.715(5). Second, if we find that subsection 5 was satisfied, then we must also decide whether the Court of Appeals erred in holding that the defendant had insufficient minimum contacts with Michigan to support its exercise of limited personal jurisdiction.
We hold that F.o.B. shipping terms are not dispositive of whether the defendant entered into a contract for materials to be furnished in Michigan. The statutory language “furnishing” is broader than “delivery,” and in this case, P. D. George entered into a contract for materials to be furnished in Michigan. Also, we hold that the defendant had sufficient minimum contacts with Michigan to permit exercise of limited personal jurisdiction over the defendant.
I. FACTS AND PROCEEDINGS
P. D. George Company, a Delaware corporation doing business in Missouri, sold Golden Teak Oil to Excelda Manufacturing Company, a Michigan corporation, at the instigation of Robert Pollack of Robert’s Innovations, located in New Jersey. The concentrated teak oil, a chemical surface coating used in the marine industry, was shipped to Excelda F.O.B. St. Louis, Missouri. Excelda diluted the chemicals and packaged them for shipment to Starbrite Distributing, Inc., a Florida corporation.
A defect arose in the concentrate that affected its quality and shelf life. Starbrite sued Excelda and P. D. George in Michigan, alleging breach of contract by Excelda and breaches of various warranties by both Excelda and P. D. George. In defending the action by Starbrite, Excelda initiated a cross-claim against P. D. George. In response, P. D. George moved for summary disposition pursuant to MCR 2.116(C)(1) on the basis of a lack of limited personal jurisdiction. Starbrite and Excelda claimed that jurisdiction existed pursuant to MCL 600.715; MSA 27A.715, Michigan’s long-arm statute.
The circuit judge denied P. D. George’s motion for summary disposition. P. D. George appealed, and the Court of Appeals reversed, holding that there was a lack of personal jurisdiction over P. D. George. Excelda and Starbrite both sought leave to appeal to this Court, which we granted.
II. THE LONG-ARM STATUTE
Michigan’s long-arm statute provides:
The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
(3) The ownership, use, or possession of any real or tangible personal property situated within the state.
(4) Contracting to insure any person, property, or risk located within this state at the time of contracting.
(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant. [MCL 600.715; MSA 27A.715 (emphasis added).]
In the lower courts and here, P. D. George argued that subsection 5 of the long-arm statute was not satisfied. F.O.B. is a ucc delivery term. When the term is F.O.B. point of shipment, the seller bears the expense and risk of putting the goods in the possession of the carrier. Once the goods are in the possession of the carrier, title passes to the purchaser. Thus, P. D. George argued that once the title to the goods passed to the carrier, the goods were furnished in Missouri, and could not be furnished in Michigan.
In denying P. D. George’s motion for summary disposition on the basis of a lack of personal jurisdiction, the circuit judge stated:
I think the statute does talk about furnishing and entering into a contract to furnish materials in this state and I think that’s what happened here, as I understand the facts. It’s sufficient to meet the requirements of the statute as well as any due process question. It looks as if it was not a single delivery but an ongoing arrangement and I further believe that the question of the U.C.C. application is not dispositive of this situation. I think that the U.C.C. had other concerns in mind, certainly not jurisdictional ones.
When P. D. George appealed, the Court of Appeals reversed. 211 Mich App 475; 536 NW2d 558 (1995). It concluded that the trial court erred in finding that the delivery term was not dispositive of the issue of the place of delivery. It reasoned that because Excelda agreed that title transferred to it when P. D. George delivered the goods to the carrier in St. Louis, the goods were furnished in Missouri, and could not be furnished in Michigan.
We agree with the circuit judge that the UCC delivery term does not control because the UCC is concerned with issues such as who bears the expense of shipping and the risk of loss in the transfer of goods. These are concerns separate from whether the goods are furnished in Michigan for purposes of the long-arm statute. We agree with Starbrite and Excelda that furnishing is a broader concept than the simple concept of delivery. If the Legislature intended píace of delivery to be dispositive of where the goods were furnished, then the Legislature would have used that term, rather than furnishing. Thus, we hold that F.o.B. shipping terms are not dispositive of whether the defendant entered into a contract for services to be performed or for materials to be furnished in Michigan. Here, the long-arm statute was satisfied because the defendant entered into a contract for materials to be furnished in Michigan. It delivered the goods it manufactured to a common carrier in St. Louis, specifying that the goods should be shipped to a specific Michigan address.
in. DUE PROCESS
After determining that subsection 5 of the long-arm statute was satisfied, we next must consider whether the defendant had sufficient minimum contacts with Michigan to support the exercise of limited personal jurisdiction. As noted above, the circuit judge believed that the Due Process Clause was not violated. However, the Court of Appeals held that the exercise of personal jurisdiction in these circumstances would violate the Due Process Clause.
As this Court stated in Witbeck v Bill Cody’s Ranch Inn, 428 Mich 659, 666; 411 NW2d 439 (1987), “[t]he Due Process Clause of the Fourteenth Amendment ‘does not contemplate that a state may make binding a judgment in personam against an individual or a corporate defendant with which the state has no contacts, ties, or relations.’ ” Quoting International Shoe Co v Washington, 326 US 310, 319; 66 S Ct 154; 90 L Ed 95; 161 ALR 1057 (1945). The Court noted that the constitutional inquiry “is whether the defendant purposefully established ‘minimum contacts’ in the forum state ‘such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” Id., quoting International Shoe at 316. See Burger King Corp v Rudzewicz, 471 US 462, 474; 105 S Ct 2174; 85 L Ed 2d 528 (1985).
In determining whether sufficient minimum contacts exist between a defendant and Michigan to support Michigan’s exercise of limited personal jurisdiction, the Court must apply a three-pronged test:
First, the defendant must have purposefully availed himself of the privilege of conducting activities in Michigan, thus invoking the benefits and protections of this state’s laws. Second, the cause of action must arise from the defendant’s activities in the state. Third, the defendant’s activities must be substantially connected with Michigan to make the exercise of jurisdiction over the defendant reasonable. [Jeffrey, supra at 186, quoting Mozdy v Lopez, 197 Mich App 356, 359; 494 NW2d 866 (1992).]
Considering the first prong, we must determine whether the defendant purposely availed itself of the privilege of exploiting Michigan business opportunities. In Jeffrey, supra, this Court explained:
“ ‘[Purposeful availment’ is something akin either to a deliberate undertaking to do or cause an act or thing to be done in Michigan or conduct which can be properly regarded as a prime generating cause of the effects resulting in Michigan, something more than a passive availment of Michigan opportunities. The defendant will have reason to foresee being ‘haled before’ a Michigan court.” [Id. at 187-188, quoting Khalaf v Bankers & Shippers Ins Co, 404 Mich 134, 153-154; 273 NW2d 811 (1978).]
However, the “ ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’contacts . . . .” Burger King at 475 (citations omitted). The Supreme Court in Burger King explained that
where the defendant “deliberately” has engaged in significant activities within a State, or has created “continuing obligations” between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. [Id. at 475-476 (citations omitted).]
Applied to the facts of this case, P. D. George’s contacts with Michigan were not “random,” “fortuitous,” or “attenuated.” P. D. George deliberately sold and arranged for the shipping of teak oil to Excelda. Although it did not actively solicit business in Michigan, and did not maintain a physical presence in Michigan, representatives of P. D. George made telephone calls to Excelda regarding the ordering and purchasing of the concentrated teak oil before the time that the problem with the defective goods arose. Also, P. D. George, for several months, delivered orders for the teak oil to a common carrier for shipment to Michigan. Under this business relationship, P. D. George created continuing obligations between itself and Excelda. It has availed itself of the privilege of conducting business in Michigan, and its activities were shielded by the benefits and protections of the laws of Michigan. Thus, it is presumptively reasonable to require P. D. George to submit to the burdens of litigation in Michigan courts, and P. D. George should have anticipated being haled into court here.
In arriving at this decision, we do not rely on a stream of commerce theory. This case is distinguishable from facts such as those in Asahi Metal Industry Co, Ltd v Superior Court of California, 480 US 102; 107 S Ct 1026; 94 L Ed 2d 92 (1987). In this case, P. D. George did not merely place its product into the stream of commerce, not having further knowledge regarding where that product might end up. Rather, P. D. George purposefully directed its product to a Michigan corporation, which is qualitatively different than the mere act of placing its product into the stream of commerce.
Next, we must consider the second prong and determine whether the cause of action arose from the defendant’s activities in the state, which is necessary for a Michigan court’s assertion of specific jurisdiction (or limited jurisdiction). This prong is readily established because the action was for breach of contract that arose from the defendant’s contact with this state, i.e., the shipping of defective goods into Michigan.
Finally, we must consider the third prong and determine whether the defendant’s activities were substantially connected with Michigan to make the exercise of jurisdiction over the defendant reasonable, i.e., whether Michigan’s exercise of jurisdiction comports with traditional notions of fair play and substantial justice. “[W]here a defendant who purposefully has directed [its] activities at forum residents seeks to defeat jurisdiction, [it] must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Burger King at 477. As noted in World-Wide Volkswagen Corp v Woodson, 444 US 286, 292; 100 S Ct 559; 62 L Ed 2d 490 (1980), the burden on the defendant is a primary concern, but, in appropriate cases, it should be considered in light of other relevant factors, including
the forum State’s interest in adjudicating the dispute; the plaintiff’s interest in obtaining convenient and effective relief, at least when that interest is not adequately protected by the plaintiffs power to choose the forum; the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies .... [Citations omitted.]
Considering these “other factors,” we do not believe that P. D. George presents a compelling case that subjecting it to Michigan jurisdiction would be unreasonable or unfair. Although litigating in Michigan courts may not be convenient for P. D. George, we do not believe that this burden rises to a constitutional level.
Other factors as a whole weigh in favor of Michigan jurisdiction. First, Michigan has strong interests in adjudicating the dispute and in assuring that a corporation that ships defective products into Michigan cannot escape the jurisdiction of the forum where those products were discovered to be defective.
Second, Starbrite and Excelda have an interest in obtaining convenient and effective relief in this forum. Although the plaintiff may be able to obtain effective relief in either Delaware or Missouri, the most convenient forum is Michigan. Because the defective product was mixed and packaged in Michigan, it is likely that many of the witnesses and evidence may also be located in Michigan.
Third, the most efficient resolution of this controversy would occur in Michigan where both defendants, Excelda and P. D. George, would be subject to jurisdiction. Thus, there would only need to be one trial. If we found that jurisdiction was not proper in Michigan with regard to P. D. George, then there would have to be another parallel suit in Missouri. Two vastly similar trials, based on the same evidence, would not be an efficient resolution of this controversy.
Finally, Michigan jurisdiction in this case would advance the shared interest of the several states in furthering fundamental substantive social policies.
IV. CONCLUSION
In conclusion, we have determined that f.o.b. shipping terms are not dispositive of whether the defendant entered into a contract for materials to be furnished in Michigan. The statutory language “furnishing” is broader than “delivery,” and, in this case, P. D. George entered into a contract for materials to be furnished in Michigan. Also, we are convinced that P. D. George had sufficient contacts with Michigan to per mit exercise of limited personal jurisdiction over the defendant.
We reverse the decision of the Court of Appeals and remand this case to the circuit court for trial.
Mallett, C.J., and Brickley and Boyle, JJ., concurred with Cavanagh, J.
The issues in this case pertain to the lawsuit filed in Michigan. However, Starbrite initially sued P. D. George in federal district court in Florida. That court dismissed the suit on the basis of lack of jurisdiction. Starbrite then sued Excelda, which filed a third-party claim against P. D. George in the same court. The court also dismissed this suit on the basis of a lack of jurisdiction.
The Uniform Commercial Code was adopted in Michigan. MCL 440.2319; MSA 19.2319.
MCL 440.2319(l)(a); MSA 19.2319(l)(a).
On appeal, Starbrite and Excelda also argued that subsection 1 of the long-arm statute was satisfied. Because we hold that subsection 5 was met, we decline to address the decision of the Court of Appeals regarding this issue.
In Jeffrey, supra at 186, this Court stated:
The requirement of minimum contacts serves two purposes: (1) it protects a defendant from litigating in distant or inconvenient forums, and (2) it ensures that a state does not extend its judicial power beyond the limits imposed on all states by our federal system of government. World-Wide Volkswagen v Woodson, 444 US 286, 292; 100 S Ct 559; 62 L Ed 2d 490 (1980). Of the two, however, the overriding purpose of due process is to protect the individual liberty interests encompassed within its scope as opposed to furthering concepts of federalism. Burger King v Rudzewicz, 471 US 462, 472, n 13; 105 S Ct 2174; 85 L Ed 2d 528 (1985). Nevertheless, both purposes work in tandem to give our legal system a degree of predictability that provides potential defendants with the opportunity to structure their affairs so as to provide some assurance regarding where they may be haled into court.
The dissent’s assertions that “P. D. George had no choice over who would dilute the primary mix that it supplied,” and that Excelda forced “P. D. George to send its teak oil to Excelda, which is located in Michigan,” are baseless. Post, pp 317-318. Even if the original agreement was changed, Starbrite still agreed to ship the product to Michigan. It certainly was not forced to do so. Rather, it made a business decision to do so.
As this Court stated in Jeffrey:
Jurisdiction may not be avoided simply because the corporate defendant has never physically been present in the forum state.
“[I]t is an inescapable fact of modem commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence in a State in which business is conducted. So long as a commercial actor’s efforts are ‘purposefully directed’ toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.” [Id. at 188, quoting Burger King at 476.]
See affidavit of Mark Blask.
The contacts that we rely on in arriving at our decision are the telephone calls and the periodic shipment of goods into Michigan over several months. We do not rely on the visit by the P. D. George representative who met with representatives of Excelda in an effort to settle the dispute over the defective goods. Nor do we rely on the collection suit that P. D. George initiated against Excelda in a Michigan court.
This conclusion is consistent with McGee v Int’l Life Ins Co, 355 US 220; 78 S Ct 199; 2 L Ed 2d 223 (1957). In that case, the Supreme Court held that the Due Process Clause was satisfied because the suit was based on a contract that had substantial connection with the plaintiff’s home state. To support this conclusion, the Court only relied on the facts that the reinsurance contract issued by the nonresident defendant was deliv ered in the plaintiffs home state, the premiums were mailed from that state, and the plaintiffs decedent was a resident of that state when he died.
There are similar and also more compelling facts in this case to support a finding of Michigan jurisdiction. Although P. D. George did not solicit business in Michigan, it certainly chose to do business in Michigan. P. D. George chose to send its product into this state; it could have declined to do so if it did not wish to be subjected to Michigan jurisdiction. Just as California has an interest in providing effective means of redress for its residents when their insurers refuse to pay claims, so does Michigan have an interest in providing the same to its resident businesses when their suppliers provide them with defective goods. | [
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-64,
52,
-85,
16,
75,
113,
-115,
-26,
46,
27,
-49,
-87,
40,
73,
13,
-63,
-32,
-69,
5,
111,
16,
-109,
4,
-104,
-89,
-8,
30,
8,
57,
17,
-8,
115,
-74,
-122,
-4,
11,
-103,
-104,
34,
99,
-128,
0,
-17,
-36,
-104,
45,
90,
-97,
-93,
1,
8,
2,
107,
-66,
-97,
124,
20,
36,
-2,
-22,
-99,
23,
124,
-113,
-89,
-74,
-93,
15,
116,
30,
-125,
-26,
-121,
52,
80,
-58,
-86,
92,
1,
26,
27,
-34,
-48
] |
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