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MARKMAN, J.
At issue is whether plaintiffs’ common-law cause of action for fraud is subject to the one-year-back rule of MCL 500.3145(1). Because the one-year-back rule only applies to actions brought under the no-fault act, and because a fraud action is not a no-fault action, i.e., an “action for recovery of personal protection insurance benefits payable under [the no-fault act] for accidental bodily injury,” MCL 500.3145(1), but instead is an independent and distinct action for recovery of damages payable under the common law for losses incurred as a result of the insurer’s fraudulent conduct, we hold that a common-law cause of action for fraud is not subject to the one-year-back rule. Therefore, we reverse in part the judgment of the Court of Appeals and remand the case to the Court of Appeals for it to address the remaining issues raised by the parties.
I. FACTS AND PROCEDURAL HISTORY
In January 1987, plaintiffs Amyruth and Loralee Cooper sustained severe brain injuries in an automobile accident that occurred while they were passengers in a car driven by their mother, Sharon Strozewski. From the time they were discharged from the hospital in October 1987, both sisters have required 24-hour attendant care. By the fall of 1989, Loralee did not need as much nursing care, but still needed attention beyond what a babysitter could provide. Amyruth has required continuous skilled nursing care, which has been provided through an agency paid by defendant, plaintiffs’ automobile insurer.
At the time of the accident, Strozewski was working at GTE, earning approximately $50 a day. In the fall of 1989, defendant’s claims representative, Jim Hankamp, suggested to Strozewski that she quit her job and stay at home to care for Loralee full-time. Defendant offered to pay Strozewski $50 a day, and she accepted by signing an agreement. In September 1991, the parties agreed to increase the payments to Strozewski to $75 a day. In October 1998, the rate was effectively increased to $6.50 an hour and, after that, it progressively increased up to $10 an hour by October 2000. According to defendant, as of December 26, 2003, defendant had paid more than $5.6 million in personal protection insurance (PIP) benefits under the no-fault act for the girls’ care.
Plaintiffs filed this lawsuit in 2003, alleging that defendant had failed to pay all the PIP benefits that were due under the no-fault act because it underpaid Strozewski for the attendant care she had provided to her daughters at home over the years. Defendant filed a motion for partial summary disposition arguing, among other things, that because the amended Revised Judi cature Act (RJA), MCL 600.5851(1), states that the minority/insanity tolling provision applies only to actions brought under this act, the saving provision does not apply to no-fault actions to toll the one-year-back rule of MCL 500.3145(1). The trial court denied the motion, and the Court of Appeals denied defendant’s application for leave to file an interlocutory appeal. Unpublished order of the Court of Appeals, entered July 1, 2004 (Docket No. 254659). Two weeks later, the Court of Appeals issued its opinion in Cameron v Auto Club Ins Ass’n, 263 Mich App 95; 687 NW2d 354 (2004), which held that the minority/insanity provision of MCL 600.5851(1) applies only to actions filed under the RJA and, therefore, it does not toll an action brought under the no-fault act. Defendant filed an application for leave to appeal in this Court, which was denied, 471 Mich 915 (2004), as was defendant’s motion for reconsideration. 471 Mich 956 (2004).
In August 2004, following the Court of Appeals decision in Cameron, plaintiffs amended their complaint to assert a new cause of action for fraud. Plaintiffs alleged that defendant had fraudulently induced Strozewski to accept an unreasonably low compensation rate for her in-home attendant care services. Specifically, plaintiffs alleged that defendant had committed fraud by telling Strozewski: (1) that if she did not quit her job and accept $50 a day for providing 24-hour attendant care for Loralee, she would be personally responsible for paying for Loralee’s nursing care; (2) that she had a parental obligation to provide attendant care for her children, which reduced defendant’s legal obligation to pay attendant care benefits, and that if she did not agree to take care of Loralee for $50 a day, Loralee would have to be institutionalized; (3) that the attendant-care rate was not negotiable and that a higher rate was not available even though, in reality, defendant was paying other insureds as much as $7 an hour for providing similar attendant care; (4) that she was required to sign a contract before she could recover continuing no-fault benefits; (5) that case-management expenses were paid at the same rate as attendant-care benefits; and (6) that attendant care could not be paid to family members at the market rate or agency rate, i.e., the rate normally paid by the insurance agency to other caregivers. Plaintiffs allege that, as a result of defendant’s fraud, they sustained the following damages: (1) inadequate payments for attendant-care services; (2) loss of payments for case-management expenses, i.e., expenses incurred for the services rendered by a case manager; (3) loss of payments for room and board expenses; and (4) inadequate payments of no-fault benefits.
While the denial of defendant’s first motion for partial summary disposition was still on appeal, defendant filed a second motion for partial summary disposition, arguing that Strozewski could not recover in-home attendant-care benefits for services rendered before the filing of the complaint. The trial court denied the motion, and defendant did not file an interlocutory appeal.
Several months later, defendant filed a third motion for partial summary disposition, arguing that, under MCL 500.3145(1), plaintiffs could not recover benefits for any services that were rendered more than one year before the filing of the original complaint. The trial court denied the motion. Defendant filed an interlocutory application for leave to appeal, which was denied by the Court of Appeals. Unpublished order of the Court of Appeals, entered January 12, 2005 (Docket No. 259729). Defendant then filed a second application for leave to appeal in this Court, which was denied. 472 Mich 858 (2005).
After this Court denied leave to appeal, the parties stipulated the entry of a judgment that resolved their differences over the amounts of damages that plaintiffs would be able to recover over the various periods at issue. This judgment preserved defendant’s right to appeal the trial court’s adverse decisions with regard to issues that were raised by either party in defendant’s three motions for partial summary disposition.
Defendant then filed a claim of appeal. The Court of Appeals affirmed in part, reversed in part, and remanded for entry of an order of partial summary disposition in favor of defendant. Unpublished opinion per curiam of the Court of Appeals, issued November 21, 2006 (Docket No. 261736). The Court of Appeals held that this Court’s decision in Cameron v Auto Club Ins Ass’n, 476 Mich 55; 718 NW2d 784 (2006), which affirmed the Court of Appeals decision in that case, was dispositive of defendant’s claim that plaintiffs may not recover PIP benefits relating to any losses incurred more than one year before plaintiffs filed their original complaint. Moreover, it held that plaintiffs’ fraud claim was subject to the one-year-back rule of MCL 500.3145(1) because the claim was nothing more than a no-fault claim couched in fraud terms. We granted plaintiffs’ application for leave to appeal. 478 Mich 861 (2007).
II. STANDARD OF REVIEW
Issues of statutory interpretation and other questions of law are reviewed de novo. Devillers v Auto Club Ins Ass’n, 473 Mich 562, 566-567; 702 NW2d 539 (2005). The grant or denial of a motion for summary disposition is also reviewed de novo. McClements v Ford Motor Co, 473 Mich 373, 380; 702 NW2d 166 (2005).
III. ANALYSIS
A. FRAUD ACTIONS AND ONE-YEAR-BACK RULE
The Michigan no-fault act, MCL 500.3145(1), provides, in relevant part:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. [Emphasis added.]
The one-year-back rule of this provision limits recovery of PIP benefits to those incurred within one year before the date on which the no-fault action was commenced. PIP benefits include “all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(l)(a).
Plaintiffs argue that by alleging in their amended complaint that defendant fraudulently induced Strozewski to accept an unreasonably low compensation rate for her in-home attendant-care services, plaintiffs brought a common-law fraud claim that is distinct from a no-fault claim for benefits, and that such claim therefore is not subject to the one-year-back rule of MCL 500.3145(1). A fraud action is not subject to the one-year-back rule of MCL 500.3145(1) because the one-year-back rule applies only to actions brought under the no-fault act, and a fraud action is a distinct and independent action brought under the common law. A fraud action is not an “action for recovery of [PIP] benefits payable under [the no-fault act] for accidental bodily injury.” Rather, in the context of an insurance contract, a fraud action is an action for recovery of damages payable under the common law for losses incurred as a result of the insurer’s fraudulent conduct. There is a distinction between claiming that an insurer has refused to pay no-fault benefits to its insureds and claiming that the insurer has defrauded its insureds. A fraud action is conceptually distinct from a no-fault action because: (1) a fraud action requires an insured to prove several elements that are different from those required in a no-fault action; (2) a fraud action accrues at a different time than a no-fault action; and (3) a fraud action permits an insured to recover a wide range of damages that are not available in a no-fault action.
To assert a no-fault claim, an insured must demonstrate that the insured is entitled to benefits “for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” without regard to fault, and that the insurer is obligated under an insurance contract to pay those benefits, but failed to do so timely. MCL 500.3105. To assert an actionable fraud claim, on the other hand, an insured must demonstrate:
“(1) That [the insurer] made a material representation; (2) that it was false; (3) that when [the insurer] made it [the insurer] knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that [the insurer] made it with the intention that it should be acted upon by [the] plaintiff; (5) that [the] plaintiff acted in reliance upon it; and (6) that [the plaintiff] thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.” [Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976), quoting Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919).]
A fraud claim is clearly distinct from a no-fault claim. First, a fraud claim requires proof of additional ele ments, such as deceit, misrepresentation, or concealment of material facts, and the substance of such claim is the insurer’s wrongful conduct. Unlike a no-fault claim, a fraud claim does not arise from an insurer’s mere omission to perform a contractual or statutory obligation, such as its failure to pay all the PIP benefits to which its insureds are entitled. Rather, it arises from the insurer’s breach of its separate and independent duty not to deceive the insureds, which duty is imposed by law as a function of the relationship of the parties. Second, unlike an action for no-fault benefits, which arises when the insurer fails to pay benefits, an action for fraud arises when the fraud is perpetrated. Hearn v Rickenbacker, 428 Mich 32, 39; 400 NW2d 90 (1987). Finally, under a no-fault cause of action, the insureds can only recover no-fault benefits, whereas under a fraud cause of action, the insureds may recover damages for any loss sustained as a result of the fraudulent conduct, which may include the equivalent of no-fault benefits, reasonable attorney fees, damages for emotional distress, and even exemplary damages. See Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 250-251; 531 NW2d 144 (1995); Veselenak v Smith, 414 Mich 567, 574; 327 NW2d 261 (1982); Phinney v Perlmutter, 222 Mich App 513, 527; 564 NW2d 532 (1997); Clemens v Lesnek, 200 Mich App 456, 463-464; 505 NW2d 283 (1993).
Therefore, “[a]¡though mere allegations of failure to discharge obligations under [an] insurance contract would not be actionable in tort, where, as here, the breach of separate and independent duties are alleged, [the insureds] should be allowed an opportunity to prove [their] causes of action.” Hearn, 428 Mich at 40 (citation omitted); see also Roberts v Auto-Owners Ins Co, 422 Mich 594, 603-604; 374 NW2d 905 (1985) (tort actions survive in a contractual setting as long as the tort action is based on a breach of duty that is distinct from the contract); Kewin v Massachusetts Mut Life Ins Co, 409 Mich 401, 422; 295 NW2d 50 (1980) (tort actions may survive when an insurer breaches a duty that existed “independent of and apart from the contractual undertaking”). “[T]ort liability abolished by the no-fault act is only such liability as arises out of the defendant’s ownership, maintenance or use of a motor vehicle, not liability which arises out of other conduct ....” Citizens Ins Co of America v Tuttle, 411 Mich 536, 542; 309 NW2d 174 (1981); see also Shavers v Attorney General, 402 Mich 554, 623; 267 NW2d 72 (1978) (the no-fault act only “partially abolish[ed] the common-law remedy in tort for persons injured by negligent motor vehicle tortfeasors ....” [emphasis added]); Bak v Citizens Ins Co of America, 199 Mich App 730, 737-738; 503 NW2d 94 (1993) (“The enactment of the no-fault act did not extinguish common-law doctrines predating that legislation.”).
That common-law fraud claims survive even where a self-contained system, such as the no-fault system, exists is further suggested by this Court’s decisions in the context of the dramshop act. The dramshop act, MCL 436.1801 et seq., states that it provides “the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor.” MCL 436.1801(10). In Manuel v Weitz man, 386 Mich 157, 164-165; 191 NW2d 474 (1971), overruled in part on other grounds by Brewer v Payless Stations, Inc, 412 Mich 673 (1982), this Court held that the dramshop act does not abrogate actions arising out of other unlawful conduct, and that tavern owners remain liable for injuries arising out of breach of other common-law duties. Similarly, the no-fault act, which provides the remedy for injuries arising out of “the ownership, maintenance or use of a motor vehicle,” MCL 500.3105(1), does not abrogate actions arising out of the breach of other common-law duties. Nothing in the no-fault act or other relevant law suggests that insurers are exempt from liability for breaching other common-law duties by, for example, misrepresenting material facts and deceiving their insureds. The fact that the dispute would not have arisen in the absence of the no-fault insurance contract does not mean that the action brought by the insureds is a no-fault action.
Defendant argues, and the Court of Appeals appears to assert, that where the damages sought by the insureds are defined in terms of additional PIP benefits, the insureds’ cause of action must necessarily be considered a “no-fault action couched in fraud terms.” Cooper v Auto Club Ins Ass’n, unpublished opinion per curiam of the Court of Appeals, issued November 21, 2006 (Docket No. 261736), at 2. We respectfully disagree. Although the nature of the damages sought may constitute a useful indicator of the precise nature of the claim, this factor alone cannot be viewed as dispositive.
The fact that a lawsuit seeks to recover a loss that was covered by an insurance policy, alone, should not dictate the nature of a plaintiffs claims .... Although the contract of insurance may be one source of the insurer’s obligation to pay the loss, the insurer may also be held liable for tortious conduct that is wholly separable from its purely contractual duties.[Hearn, 428 Mich at 40-41.]
Where fraudulent conduct results in the loss, or reduced payment, of PIP benefits, plaintiffs are entitled to seek damages for their entire loss, including the equivalent of the no-fault benefits. See Phinney, 222 Mich App at 532. It should not be seen as unusual that damages for fraud in a statutory context would be more than randomly related to lost statutory benefits. Simply because the insureds choose to measure their loss from the fraudulent conduct, in whole or in part, on the basis of lost PIP benefits does not transform their claim into a no-fault claim.
Therefore, where an insured’s claim arises not out of the insurer’s mere failure to pay no-fault benefits, but out of the insurer’s fraudulent misrepresentations, which might have ultimately led to payment of reduced no-fault benefits to the insureds, the courts are faced with a fraud claim, as opposed to a no-fault claim. Because fraud claims are independent of and distinct from no-fault claims, the one-year-back rule of the no-fault act simply does not apply.
Consequently, where the insureds state a fraud cause of action, this Court need not resort to its equitable power to prevent the one-year-back rule’s application. In Devillers, 473 Mich at 590-591, this Court stated that, in the context of a no-fault claim, this Court may exercise its equitable power to avoid the application of the one-year-back rule if there are allegations of fraud, mutual mistake, or other unusual circumstances. Because Devillers “concerns those statutory claims brought pursuant to the no-fault act,” i.e., no-fault actions, Devillers is not pertinent in cases involving independent fraud actions. West v Farm Bureau Gen Ins Co of Michigan (On Remand), 272 Mich App 58, 65; 723 NW2d 589 (2006). Thus, where the insureds state a common-law fraud claim, wholly separate from a no-fault claim, this Court need not consider an equitable exception to the application of the one-year-back rule because the no-fault rules simply do not apply.
B. CAUTIONARY NOTES
While insureds are entitled to pursue common-law fraud claims against insurers and their remedies are not limited by the one-year-back rule of the no-fault act, we are not oblivious to the fact that, in the initial stages of litigation, some insureds may attempt to circumvent the application of the one-year-back rule to defeat insurers’ motions for summary disposition. In order to limit such practices, to prevent wasteful or frivolous litigation, and to maintain the integrity of both the no-fault law and the common-law fraud cause of action, trial courts should exercise special care in assessing these types of fraud claims, and we offer the following guidance.
Because fraud must be pleaded with particularity, MCR 2.112(B)(1), and “is not to be lightly presumed, but must be clearly proved,” Palmer v Palmer, 194 Mich 79, 81; 160 NW 404 (1916), “by clear, satisfactory and convincing” evidence, Youngs v Tuttle Hill Corp, 373 Mich 145, 147; 128 NW2d 472 (1964), trial courts should ensure that these standards are clearly satisfied with regard to all of the elements of a fraud claim. As stated above, the elements of fraud in the insurance context are: (1) that the insurer made a material representation; (2) that it was false; (3) that when the statement was made, the insurer knew that it was false, or the insurer made it recklessly without any knowledge of its truth and as a positive assertion; (4) that the insurer made the statement with the intention that it would be acted upon by the insureds; (5) that the insureds acted in reliance upon the statement; and (6) that the insureds consequently suffered injury. See Hi-Way Motor Co, 398 Mich at 336.
In particular, courts should carefully consider in this context whether insureds can satisfy the reliance factor. Insureds must “show that any reliance on [the insurer’s] representations was reasonable.” Foreman v Foreman, 266 Mich App 132, 141-142; 701 NW2d 167 (2005). Because fraud cannot be “perpetrated upon one who has full knowledge to the contrary of a representation,” Montgomery Ward & Co v Williams, 330 Mich 275, 284; 47 NW2d 607 (1951), insureds’ claims that they have reasonably relied on misrepresentations that clearly contradict the terms of their insurance policies must fail. One is presumed to have read the terms of his or her insurance policy, see Van Buren v St Joseph Co Village Fire Ins Co, 28 Mich 398, 408 (1874); therefore, when the insurer has made a statement that clearly conflicts with the terms of the insurance policy, an insured cannot argue that he or she reasonably relied on that statement without questioning it in light of the provisions of the policy. See also McIntyre v Lyon, 325 Mich 167, 174, 37 NW2d 903 (1949); Phillips v Smeekens, 50 Mich App 693, 697; 213 NW2d 862 (1973). In addition, insureds will ordinarily be unable to establish the reliance element with regard to misrepresentations made during the claims handling and negotiation process, because during these processes the parties are in an obvious adversarial position and generally deal with each other at arm’s length. See Mayhew v Phoenix Ins Co, 23 Mich 105 (1871) (Where the insured has the same knowledge or means of knowledge as the insurer, the insurer cannot be regarded as occupying any fiduciary relationship that would entitle the insured to rely on the insurer’s representations, and a settlement hastily made with the insurer under such circumstances will not be set aside for fraud. Insureds are bound to inform themselves of their rights before acting, and, if they fail to do so, they themselves are responsible for the loss.); Nieves v Bell Industries, Inc, 204 Mich App 459, 464; 517 NW2d 235 (1994) (“There can be no fraud when a person has the means to determine that a representation is not true.”). However, when the process involves information and facts that are exclusively or primarily within the insurers’ “perceived ‘expertise’ in insurance matters, or facts obtained by the insurer[s] in the course of [their] investi gation, and unknown” to the insureds, the insureds can more reasonably argue that they relied on the insurers’ misrepresentations. 14 Couch, Insurance, 3d, § 208:19, p 208-26; see also Crook v Ford, 249 Mich 500, 504-505; 229 NW 587 (1930); French v Ryan, 104 Mich 625, 630; 62 NW 1016 (1895); Tabor v Michigan Mut Life Ins Co, 44 Mich 324, 331; 6 NW 830 (1880).
The courts should also carefully examine whether the insureds have established both that the statements are statements of past or existing fact, rather than future promises or good-faith opinions, Hi-Way Motor Co, 398 Mich at 337; Danto v Charles C Robbins, Inc, 250 Mich 419, 425; 230 NW 188 (1930); Foreman, 266 Mich App at 143, and that they are objectively false or misleading, Hord v Environmental Research Institute of Michigan, 463 Mich 399, 411; 617 NW2d 543 (2000). Further, the insureds must demonstrate that the misrepresentations were made with the intent to defraud, Foreman, 266 Mich App at 143, and that the insureds were injured as a consequence. Hi-Way Motor Co, 398 Mich at 336. The courts must distinguish between misrepresentations of fact, i.e., false statements of past or existing facts, and mere negotiation of benefits, i.e., the mutual discussion and bargaining preceding an agreement to pay PIP benefits.
Finally, as with any other action, if the courts conclude that the fraud claims were frivolous or interposed without an adequate basis or for improper purposes, appropriate sanctions should be considered. See MCR 2.114.
IV CONCLUSION
Because under MCL 500.3145(1) the one-year-back rule applies solely to no-fault actions, and because a fraud action is not a no-fault action, but, rather, constitutes an independent and distinct action for recovery of damages under the common law for losses incurred as a result of the insurer’s fraudulent conduct, we hold that a common-law action for fraud is not subject to the one-year-back rule. Therefore, we reverse in part the judgment of the Court of Appeals and remand this case to the Court of Appeals for it to address the remaining issues raised by the parties.
Taylor, C.J., and Corrigan and Young, JJ., concurred with Markman, J.
CAVANAGH, J. I concur in the result only.
MCL 600.5851(1) provides:
Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of hmitations has run. This section does not lessen the time provided for in section 5852.
MCL 500.3105 provides:
(1) 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.
(2) Personal protection insurance benefits are due under this chapter without regard to fault.
(3) Bodily injury includes death resulting therefrom and damage to or loss of a person’s prosthetic devices in connection with the injury.
(4) Bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant. Even though a person knows that bodily injury is substantially certain to be caused by his act or omission, he does not cause or suffer injury intentionally if he acts or refrains from acting for the purpose of averting injury to property or to any person including himself.
“[T]he relationship between insurers and their insureds is ‘sufficient to permit fraud to be predicated upon a misrepresentation.’ ” Hearn v Rickenbacker, 428 Mich 32, 39; 400 NW2d 90 (1987), quoting Drouillard v Metropolitan Life Ins Co, 107 Mich App 608, 621; 310 NW2d 15 (1981).
“In a fraud and misrepresentation action, the tortfeasor is liable for injuries resulting from his wrongful act, whether foreseeable or not, provided that the damages are the legal and natural consequences of the wrongful act and might reasonably have been anticipated.” Phinney v Perlmutter, 222 Mich App 513, 532; 564 NW2d 532 (1997).
This Court stated:
We specifically approve the following statement in [De Villez v Schifano, 23 Mich App 72, 77; 178 NW2d 147 (1970)]:
“We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants. King v. Partridge, 9 Mich App 540, 543 (1968). However, the act does not control and it does not abrogate actions arising out of unlawful or negligent conduct of a tavern owner other than selling, giving away, or furnishing of intoxicants, provided the unlawful or negligent conduct is recognized as a lawful basis for a cause of action in the common law.” [Manuel, 386 Mich at 164-165.]
We note that the question whether the no-fault act provides the exclusive remedy for injuries arising out of “the ownership, maintenance or use of a motor vehicle” is not relevant here because the insureds argue that their injuries arose out of the insurer’s fraudulent conduct, not out of “the ownership, maintenance or use of a motor vehicle.”
In Devillers, however, this Court concluded that because there was “no allegation of fraud, mutual mistake, or any other ‘unusual circumstance’ ... there [was] no basis to invoke the Court’s equitable power.” Devillers, 473 Mich at 591.
We note that, where a case involves a no-fault claim, this Court may still exercise its equitable power if there has been a determination that genuinely “unusual circumstances” such as fraud or mutual mistake were present. Devillers, supra at 590-591.
In Tabor, the Court held that “[wjhile ... a person cannot generally be justified in acting solely on the statement of his legal rights by an adverse agent in insurance controversies,” relief is warranted if the statements are “so mixed with unconscionable conduct as to stand differently.” Id. at 331. Not only did the insurer misrepresent the applicable law regarding forfeiture of policies and pressure the ill insured to immediately comply with the insurer’s demands without allowing him to obtain independent advice, but, critically, the insurer also misrepresented facts that were within the exclusive knowledge of the insurer, such as the actions taken by the insurance commissioner and by some of the insured’s neighbors, which directly affected the surrender of the insured’s policy. Thus, the plaintiff could recover under her fraud claim. | [
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LARSEN, J.
In this case, we consider whether MCL 418.354 of the Worker’s Disability Compensation Act (WDCA) permits coordination of plaintiffs workers’ compensation benefits with his disability pension benefits in light of postretirement changes made to plaintiffs pension plan as a result of collective bargaining. Applying federal substantive law to the facts of this case, we hold that defendant may coordinate plaintiffs disability pension benefits because the parties’ collective-bargaining agreements and the subsequent modifications thereto did not vest plaintiffs right to uncoordinated benefits. We therefore reverse the judgment of the Court of Appeals and reinstate the order of the Michigan Compensation Appellate Commission, which allowed coordination.
I. BASIC FACTS AND PROCEEDINGS
Plaintiff, Clifton Arbuckle, began working for defendant, General Motors LLC, in July 1969; he retired in May 1993. On June 20, 1991, plaintiff sustained a work-related back injury and, effective May 1, 1993, began receiving a total and permanent disability pension from defendant. Following his retirement later that month, plaintiff filed a petition seeking workers’ compensation benefits for his work-related disability. In February 1995, a magistrate found plaintiff partially disabled and granted him an open award of benefits at a fixed rate of $362.78 a week until further order of the Workers’ Compensation Agency. Sometime after he began receiving workers’ compensation benefits, plaintiff also began receiving Social Security Disability Insurance (SSDI) benefits.
After discovering that many employers were paying more than once to compensate a disabled employee’s lost earning potential when that employee was also receiving disability pension benefits, the Legislature, in 1981, enacted MCL 418.354. The statute permits an employer to reduce its obligation to pay an employee’s weekly workers’ compensation benefits by coordinating those benefits with that employee’s disability pension benefits. Although the statute makes coordination mandatory by default, MCL 418.354(14) permits an employer to elect not to coordinate disability pension benefits in certain circumstances, such as when it negotiates an employment agreement that provides otherwise.
In this case, defendant and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), executed a letter of agreement in 1990 (the 1990 Letter of Agreement), pursuant to which defendant agreed not to coordinate statutory workers’ compensation benefits with contractual disability pension benefits for its employees. This letter of agreement was incorporated into the then-existing 1990 collective-bargaining agreement (CBA) between defendant and the UAW, constituting an amendment of the 1990 pension plan under which plaintiff would eventually retire. The 1990 Letter of Agreement provided that the prohibition against benefit coordination was to continue “until termination or earlier amendment of the 1990 Collective Bargaining Agreement,” which expired on November 15, 1993.
Between 1990 and 2003, defendant and the UAW negotiated new CBAs at three- or four-year intervals. Each CBA replaced its predecessor and was accompanied by a letter of agreement that replicated the provisions against benefit coordination set forth in the 1990 Letter of Agreement. Things changed, however, in September 2007, when defendant and the UAW agreed to a formula by which defendant would use disability pension benefits to reduce workers’ compensation benefits. As a result of this agreement (the 2007 Letter of Agreement), which was simultaneously incorporated into the then-existing 2007 CBA, workers’ compensation benefits and disability pension benefits were to be coordinated, but only “for employees who are injured and retire on or after October 1, 2007 . .. ,” (Underlining omitted.) In other words, the 2007 Letter of Agreement lifted the prohibition against coordination with respect to future retirees but did not affect those like plaintiff, who had already retired. Like its predecessors, the 2007 Letter of Agreement expressly stipulated that the agreement against coordination would continue “until termination or earlier amendment of the 2007 Collective Bargaining Agreement. . .
In 2009, because of the severe economic downturn and defendant’s impending bankruptcy, defendant and the UAW revisited their 2007 Letter of Agreement and agreed to amend its terms to encompass a larger pool of retirees. As a result of this agreement (the 2009 Letter of Agreement), which was again simultaneously incorporated into the then-existing 2009 CBA, defendant and the UAW agreed that “all retirees who retired prior to January 1, 2010, regardless of their date of retirement or injury” would be subject to benefit coordination consistent with the 2007 formula.
On November 16, 2009, defendant advised plaintiff by letter that effective January 1, 2010, his benefits would be partially reduced pursuant to the formula set forth in the 2007 Letter of Agreement. Given plaintiffs weekly benefit award, his initial SSDI benefit, his disability pension benefit, and his average weekly wage at the time of his injury, the letter indicated that plaintiffs coordinated weekly workers’ compensation rate would be $264.96. Plaintiff received a nearly identical letter on January 19, 2010, the only material difference being that his weekly workers’ compensation rate was reduced to $262.55.
Following coordination of his benefits, plaintiff requested a hearing before the director of the Workers’ Compensation Agency, who found that defendant was improperly using plaintiffs SSDI benefits to offset his workers’ compensation benefits in violation of MCL 418.354(H). A workers’ compensation magistrate reversed the director’s MCL 418.354(11) ruling but nevertheless concluded that, under Murphy v City of Pontiac, defendant was prohibited from reducing plaintiffs workers’ compensation benefits by his disability pension benefits because plaintiff had never agreed to coordination and there was no evidence establishing that the UAW had the authority to bargain on behalf of plaintiff following his retirement.
The Michigan Compensation Appellate Commission (MCAC) affirmed the magistrate’s ruling on MCL 418.354(11) but reversed the judgment, holding that regardless of the UAW’s authority to bind retirees, defendant was permitted to coordinate plaintiffs disability pension benefits under Murphy. Alternatively, the MCAC held that coordination was proper because any right plaintiff had to uncoordinated benefits as part of the 1990 Letter of Agreement and the 1990 CBA had expired effective November 15, 1993. After granting plaintiffs application for leave to appeal, the Court of Appeals reversed the decision of the MCAC and remanded the case for further proceedings.
On appeal in this Court, defendant contended that the Court of Appeals erred by denying defendant its right to coordinate benefits because, under the express terms of the 1990 Letter of Agreement and the 1990 CBA, its agreement not to coordinate employees’ workers’ compensation benefits with their pension disability benefits expired on November 15,1993. Because the 2009 Letter of Agreement thereafter permitted coordination of those benefits for those “who retired prior to January 1, 2010, regardless of their date of retirement or injury,” defendant argued that coordination was proper under MCL 418.354(14).
Plaintiff responded that as a retiree, he is no longer an active member of the UAW and, therefore, is not covered by the 2009 Letter of Agreement in which defendant and the UAW agreed that coordination was permissible. In the absence of any evidence that the UAW possessed the authority to bind plaintiff to agreements occurring after his retirement, plaintiff argued that the prohibition against coordination to which he did agree as part of the 1990 Letter of Agreement and the 1990 CBA remains in effect.
In lieu of granting defendant’s application for leave to appeal, we ordered oral argument on whether to grant the application or take other action, directing the parties to file supplemental briefs addressing the following two issues: “(1) whether the plaintiffs action is preempted by federal law, and (2) whether the plaintiffs action is governed by state law or federal law.”
II. STANDARD OF REVIEW
Although judicial review of a decision by the MCAC is limited, questions of law in a workers’ compensation case, including the proper interpretation of a statute, are reviewed de novo. Interpretation of a collective-bargaining agreement, like interpretation of any other contract, is also a question of law also subject to review de novo. A reviewing court interprets a collective-bargaining agreement “according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy.”
III. ANALYSIS
A threshold question is whether plaintiffs claim of entitlement to uncoordinated workers’ compensation benefits is actually a claim under § 301 of the federal Labor Management Relations Act (LMRA) and is, therefore, preempted by federal law. As part of this inquiry, we must determine whether we, as a state court, have jurisdiction to decide the merits of this case and, if so, whether state or federal law controls. In resolving these separate yet interrelated questions, it is helpful to review the relevant principles of federal preemption law.
A. PREEMPTION, JURISDICTION, AND CHOICE OF LAW
When considering a federal statute’s preemptive effect, the United States Supreme Court has instructed that “[t]he purpose of Congress is the ultimate touchstone” in every preemption case. Congress may indicate its preemptive intent in two ways: “explicitly . . . in a statute’s language” or, by implication, through a statute’s “structure and purpose.” Section 301(a) of the LMRA states, in relevant part:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . .. may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.[ ]
Although this statute does not contain an express preemption clause, the United States Supreme Court has concluded that § 301 impliedly preempts certain state-law causes of action involving labor contracts. The Court has explained that
§ 301 is a potent source of federal labor law, for though state courts have concurrent jurisdiction over controversies involving collective-bargaining agreements, Charles Dowd Box Co. v. Courtney, 368 U. S. 502 [82 S Ct 519; 7 L Ed 2d 483] (1962), state courts must apply federal law in deciding those claims, Teamsters v. Lucas Flour Co., 369 U. S. 95 [82 S Ct 571; 7 L Ed 2d 593] (1962), and indeed any state-law cause of action for violation of collective-bargaining agreements is entirely displaced by federal law under § 301, see Avco Corp. v. Machinists, 390 U. S. 557 [88 S Ct 1235; 20 L Ed 2d 126] (1968). State law is thus “pre-empted” by § 301 in that only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective-bargaining agreements.[ ]
Thus, while § 301 clearly “provides the federal courts with jurisdiction over controversies involving collective-bargaining agreements,” and even allows defendants to remove certain disputes to federal court, it is equally clear that state courts have concurrent jurisdiction over those disputes. Defendant has not attempted to remove this case to federal court; we therefore have jurisdiction regardless of whether plaintiffs claim is properly characterized as a claim under § 301 of the LMRA.
That we have jurisdiction over the instant dispute does not, however, end our threshold inquiry. Although state courts have concurrent jurisdiction over controversies involving collective-bargaining agreements, § 301 preempts state substantive law. “[S]tate courts must apply federal law in deciding those claims” because “only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective-bargaining agreements.”
We must, therefore, decide whether this case is properly characterized as a claim subject to the preemptive force of § 301. Preemption under § 301 “occurs when a decision on the state claim ‘is inextricably intertwined with consideration of the terms of the labor contract and when application of state law to a dispute “requires the interpretation of a collective bargaining agreement.” ’ ” While “a suit in state court alleging a violation of a provision of a labor contract must be brought under § 301 and be resolved by reference to federal law,” other state-law claims could still involve “the meaning or scope of a term in a contract suit. . . ,” Those claims are likewise preempted by federal labor law.
The United States Court of Appeals for the Sixth Circuit has adopted a two-part test for determining whether § 301 preemption applies. The court first “examinefs] whether proof of the state law claim requires interpretation of collective bargaining agreement terms” and second, “ascertain [s] whether the right claimed by the plaintiff is created by the collective bargaining agreement or by state law.” If application of this test reveals a right that both arises from state law and does not require contract interpretation, then there is no preemption. However, “if a state-law claim fails either of these two requirements, it is preempted by § 301.”
In this case, we are faced with a claim framed as enforcement of a right to workers’ compensation benefits arising under Michigan’s workers’ compensation statute. While defendant argues that resolution of the coordination issue requires the interpretation of the 1990 Letter of Agreement and the 1990 CBA, as well as various postretirement changes made to plaintiffs pension plan through collective bargaining, plaintiff contends that his claim can be resolved in its entirety by resorting only to the Michigan workers’ compensation statutes, the WDCA.
The WDCA provides that an employer’s obligation to pay weekly workers’ compensation benefits “shall be reduced” by other wage-replacement benefits. Thus, as we have held, “[t]he coordination of benefits is mandatory” under the WDCA, subject to certain limi tations. The relevant limitation in this case is found in MCL 418.354(14), which provides as follows:
This section does not apply to any payments received or to be received under a disability pension plan provided by the same employer, which plan is in existence on March 31, 1982. Any disability pension plan entered into or renewed after March 31,1982 may provide that the payments under that disability pension plan provided by the employer shall not be coordinated pursuant to this section.
Accordingly, benefits under disability pension plans begun or renewed after March 31, 1982, are subject to coordination by virtue of the statute, but an employer may elect against exercising its right to coordinate benefits, such as when it enters into an employment agreement exempting benefits from coordination.
Consistently with MCL 418.354(14), defendant relies on its 2009 Letter of Agreement with the UAW to permit benefit coordination following the expiration of the 1990 Letter of Agreement. In order to determine whether defendant was authorized to coordinate plaintiffs workers’ compensation benefits with his disability pension benefits, then, we must necessarily interpret the 1990 Letter of Agreement and the 1990 CBA as well as the parties’ subsequent agreements permitting benefit coordination, which were incorporated into the then-existing CBAs. Because resolution of the underlying coordination claim requires the interpretation of the terms of a collective-bargaining agreement, plaintiffs claim fails the first prong of the Sixth Circuit’s preemption test. Plaintiffs claim is, therefore, preempted by § 301.
Plaintiff cannot avoid the preemptive force of § 301 by arguing that only defendant’s defense of coordina tion depended on interpretation of the CBA, whereas proof of plaintiffs claims does not. Resolution of plaintiffs state-law workers’ compensation claim “ ‘is inextricably intertwined with consideration of the terms of the labor contract’ ” because application of MCL 418.354(14) to the instant dispute “ ‘requires the interpretation of [the relevant] collective-bargaining agreement.’ ” Accordingly, this suit must proceed as a case controlled by federal, rather than state, substantive law, and the Court of Appeals erred by failing to recognize that.
B. APPLICATION OF FEDERAL SUBSTANTIVE LAW
As previously indicated, coordination of benefits under the WDCA is “mandatory.” MCL 418.354(14), however, permits the parties to a collective-bargaining agreement to decline to coordinate an employee’s workers’ compensation benefits with his or her disability pension benefits. In this case, plaintiff does not dispute that the text of the 2009 Letter of Agreement, as incorporated into the then-existing 2009 CBA, permits coordination of those benefits for “all retirees who retired prior to January 1, 2010, regardless of their date of retirement or injury,” while the 1990 Letter of Agreement, in effect when plaintiff retired, did not permit such coordination. The issue, then, is which agreement controls.
Central to this determination is whether the 1990 Letter of Agreement provided vested or nonvested benefits to plaintiff. Under federal law, a union may represent and bargain for already-retired employees, but only with respect to «oravested benefits. By contrast, when an employer explicitly obligates itself to provide vested benefits, that promise is rendered forever unalterable without the retiree’s consent. We must, therefore, consider whether the 1990 Letter of Agreement vested a right in plaintiff to uncoordinated benefits that the 2009 Letter of Agreement could not alter.
In Garbinski v Gen Motors LLC, the Sixth Circuit considered whether a letter agreement, containing language identical to that at issue here, created a vested right to uncoordinated workers’ compensation benefits. Noting that the intent of the parties and the specific language of the CBA at issue control whether a benefit vests, the Sixth Circuit held that the right to uncoordinated benefits had not vested because it was subject to an express durational limit. Indeed, as in the agreement before us, “the clause placing limits on the right was in the very same sentence as the right it created. . . .” It, thus, clearly informed persons covered by the agreement that “the right was subject to modification.” The agreement, therefore, did not cre ate vested rights.
Garbinski’s persuasive force was only enhanced by the later decision of the United States Supreme Court in M&G Polymers USA, LLC v Tackett. In M&G Polymers, the United States Supreme Court disapproved prior Sixth Circuit caselaw, which it characterized as “placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.” Those decisions, the Supreme Court explained, “distort the text of [a collective-bargaining] agreement and conflict with the principle of contract law that the written agreement is presumed to encompass the whole agreement of the parties.” Indeed, basic principles of contract interpretation instruct that “courts should not construe ambiguous writings to create lifetime promises” and, absent a contrary intent, that “ ‘contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.’ ” For “when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.”
These principles govern here. Far from being “silent as to the duration of retiree benefits,” the agreement here clearly extended those benefits only “until termination or earlier amendment of the 1990 Collective Bargaining Agreement,” which expired on November 15, 1993. Every agreement subsequent to the 1990 Letter of Agreement, which likewise prohibited coordination, included an express durational limitation identical to that contained in the 1990 Letter of Agreement, representing defendant’s continued commitment to refrain from coordinating benefits only “until termination or earlier amendment” of each of those subsequent agreements. By confining plaintiffs right to uncoordinated benefits to a specific period of time, the parties plainly intended to reserve the power to modify the policy regarding coordination at some point in the future. As a result, under the terms of the 1990 Letter of Agreement and the 1990 CBA, plaintiffs right to uncoordinated benefits was subject to modification and was thus a nonvested right. The various letters of agreement that were executed following plaintiff s retirement, together with the express durational clause set forth under the 1990 Letter of Agreement and the 1990 CBA that were in place at the time of plaintiffs retirement, guaranteed that plaintiff would receive uncoordinated benefits only until the agreement terminated or was amended, nothing more. Because nothing in the 1990 CBA itself, or the subsequent modifications thereto, demonstrates a commitment by defendant to provide plaintiff an unalterable right to uncoordinated benefits that would survive termination of the agreement, the Court of Appeals erred by holding that defendant lacked the authority to coordinate plaintiffs benefits under the 2009 CBA.
IV. CONCLUSION
In lieu of granting defendant’s application for leave to appeal, we reverse the judgment of the Court of Appeals and reinstate the MCAC’s order allowing defendant to coordinate plaintiffs workers’ compensation benefits with his disability pension benefits. Neither the 1990 Letter of Agreement along with the 1990 CBA nor any subsequent agreements created an unalterable right to uncoordinated benefits for life. They instead evinced the parties’ intent to reserve the power to amend plaintiffs right to uncoordinated benefits on termination or earlier amendment of the agreements. Under a proper reading of the relevant agreements and the application of federal substantive law, defendant’s subsequent coordination of plaintiffs workers’ compensation benefits with his disability pension benefits did not violate the terms of plaintiffs disability pension plan, nor did it violate MCL 418.354.
Young, C.J., and Markman, Zahra, McCormack, Viviano, and Bernstein, JJ., concurred with Larsen, J.
MCL 418.101 et seq.
See M&G Polymers USA, LLC v Tackett, 574 US _, _; 135 S Ct 926, 937; 190 L Ed 2d 809 (2015).
Because Robert Arbuckle is pursuing this appeal as personal representative of the estate of the late Clifton Arbuckle, who died during the appeal, “plaintiff’ refers to Clifton Arbuckle.
1981 PA 203, effective March 31, 1982.
Smitter v Thornapple Twp, 494 Mich 121, 138; 833 NW2d 875 (2013).
There is no dispute that the UAW represented plaintiff at all times during his employment.
Plaintiff received the benefit of each of these subsequent agreements, even those occurring postretirement.
The 2007 Letter of Agreement explained this new formula in the following terms:
Pursuant to Subsection 354(14) of the Michigan Workers Compensation Act [MCL 418.354(14)], as amended, until termination or earlier amendment of the 2007 Collective Bargaining Agreement for emulovees who are injured and retire on or after October 1. 2007. workers’ compensation payments for such employees shall be reduced bv disability retirement benefits payable under the Hourly-Rate Employees Pension Plan to the extent that, the combined workers’ comnensation payments, initial Social Security Disability Insurance Benefit Amount,, and the initial disability retirement benefit (ner week) exceed the employee’s ptoss Average Weekly Wage at the time of the injury.
The 2007 Letter of Agreement did not completely coordinate future retirees’ benefits. Rather, a retiree’s workers’ compensation benefits were reduced only “to the extent that” the retiree’s workers’ compensation payments, SSDI benefits, and disability pension benefits collectively exceeded the retiree’s average weekly wage at the time of his injury. In such a case, the retiree’s workers’ compensation benefits would be reduced by the lesser of the disability pension benefits or the amount of the disability pension benefits in excess of the average weekly wage. In short, a retiree who was subject to coordination under the new formula would, at least, still receive payments from defendant equal to his earnings before the injury that resulted in the disability benefits.
Emphasis added. The 2009 Letter of Agreement provided as follows:
As a result of the 2009 negotiations, the parties have agreed that the 2007 letter agreement, referenced above, will be amended such that, effective January 1, 2010, the provisions of the 2007 letter agreement will be applied to all retirees who retired prior to January 1, 2010, regardless of their date of retirement or injury.
This provision prohibits the use of SSDI benefits to reduce weekly workers’ compensation benefits unless there has been an amendment of the federal Social Security Act.
Murphy v City of Pontiac, 221 Mich App 639; 561 NW2d 882 (1997).
Arbuckle v Gen Motors LLC, unpublished opinion per curiam of the Court of Appeals, issued February 10, 2015 (Docket No. 310611).
Defendant also argued that the lower tribunals and this Court lack jurisdiction over this case because it involves the interpretation of a CBA and is thus completely preempted by federal law. However, for reasons that will be explained in further detail, we have jurisdiction over the instant dispute, and, therefore, defendant is not entitled to dismissal for lack of state court jurisdiction.
Plaintiff also claimed that defendant’s coordination-of-benefits formula illegally “considered” plaintiffs SSDI benefits to reduce his workers’ compensation benefits in violation of MCL 418.354(11), which, as previously indicated, requires employers to “consider □” a retiree’s SSDI benefits as “payments from funds provided by the employer and to be primary payments on the employer’s obligation ... as old-age benefit payments under the social security act are considered” in MCL 418.354(l)(a), but only if the Social Security Act has been amended in a particular way. In other words, MCL 418.354(11) limits an employer’s ability to use, i.e., coordinate, SSDI benefits to satisfy its obligation to pay workers’ compensation benefits. Because the parties do not dispute that no such amendment to the Social Security Act has occurred, plaintiff asserted that defendant is statutorily forbidden from coordinating his SSDI benefits.
We decline to consider this question because plaintiff failed to adequately brief and argue the issue in this Court, thereby abandoning it. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
See MCR 7.305(H)(1).
Arbuckle v Gen Motors, LLC, 498 Mich 956 (2015).
Smitter, 494 Mich at 129.
Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003).
Maurer v Joy Technologies, Inc, 212 F3d 907, 914 (CA 6, 2000).
M&G Polymers, 574 US at _; 135 S Ct at 933.
PL 80-101, § 301; 61 Stat 136, 156; 29 USC § 185(a).
Retail Clerks Int'l Ass’n v Schermerhorn, 375 US 96, 103; 84 S Ct 219; 11 L Ed 2d 179 (1963).
Jones v Rath Packing Co, 430 US 519, 525; 97 S Ct 1305; 51 L Ed 2d 604 (1977).
29 USC 185(a).
United Steelworkers of America v Rawson, 495 US 362, 368; 110 S Ct 1904; 109 L Ed 2d 362 (1990).
Id.
Avco Corp v Aero Lodge No 735, Int'l Ass’n of Machinists & Aerospace Workers, 390 US 557, 560; 88 S Ct 1235; 20 L Ed 2d 126 (1968).
United Steelworkers, 495 US at 368.
id.
Jones v Gen Motors Corp, 939 F2d 380, 382 (CA 6, 1991) (citations omitted).
Allis-Chalmers Corp v Lueck, 471 US 202, 210; 105 S Ct 1904; 85 L Ed 2d 206 (1985).
Id. See also Jones, 939 F2d at 384 (“[T]he pre-emptive effect of § 301 applies to state-law claims that do not facially allege a breach of [the CBA].”).
Alongi v Ford Motor Co, 386 F3d 716, 724 (CA 6, 2004).
Id.
Mattis v Massman, 355 F3d 902, 906 (CA 6, 2004).
MCL 418.354(1).
See MCL 418.354(l)(a) through (f).
Smitter, 494 Mich at 138.
Plaintiff relies heavily on a federal case involving similarly situated General Motors (GM) disability retirees who challenged the coordination of their workers’ compensation and disability pension benefits. See Savage v Gen Motors, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued September 21, 2010 (Case No. 10-12372). At issue in Savage was whether the doctrine of complete preemption would permit the defendant to remove the plaintiffs’ claims for uncoordinated workers’ compensation benefits to federal court. Id. at 3. The Eastern District did not permit removal. The court concluded that defendant had raised the breach of the collective-bargaining agreement as a defense to the plaintiffs’ primary claims to enforce orders awarding each of them workers’ compensation benefits under Michigan’s workers’ compensation statutes. Id. at 4. Accordingly, it granted the plaintiffs’ motion to remand the case to state court. The court reasoned:
[P]roof of Plaintiffs’ claim does not require the interpretation of the CBA, nor is Plaintiffs’ claim a breach of contract claim in disguise. Plaintiffs are seeking to enforce a right to receive workers’ compensation benefits, which is created by state statute, not the CBA. Although GM attempts to characterize Plaintiffs’ claim as a “right to non-coordination” under the CBA, Plaintiffs’ claim is for benefits under the statute. Plaintiffs are not asserting a “right to non-coordination”; rather, GM is seeking to justify its right to coordinate benefits under the CBA. Accordingly, the court finds that Plaintiffs’ state law claims are not preempted by § 301. [id. at 5 (alteration in original).]
In this case, defendant has not sought removal to federal court. Nonetheless, its contention that federal law governs the instant case depends on whether § 301 of the LMRA preempts plaintiffs claim. We are not bound by the decision of the federal district court, Abela v Gen Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004), and plaintiff has not claimed that the federal court’s judgment has any preclusive effect. We respectfully disagree with the federal district court’s characterization of the parties’ collective-bargaining agreement and the Michigan workers’ compensation statutes.
Coordination of benefits is mandatory under the WDCA unless a statutorily authorized exception to coordination applies. Smitter, 494 Mich at 138. MCL 418.354(14) permits, but does not require, employers to forego coordination as the result of a collectively bargained agreement. Thus, any right plaintiff had to uncoordinated benefits arose exclusively as the result of the CBA, not by force of the Michigan statute. Had there never been a CBA, the WDCA would have required coordination. Therefore, the workers’ compensation order that plaintiff seeks to enforce “itself is a creature wholly begotten by the CBA.” Jones, 939 F2d at 383. Plaintiffs claim is, thus, “ ‘inextricably intertwined with consideration of the terms of the labor contract’ and... ‘requires the interpretation of a collective-bargaining agreement.’ ” Id. at 382 (citations omitted).
Id. (citations omitted).
Smitter, 494 Mich at 138.
See Allied Chem & Alkali Workers of America v Pittsburgh Plate Glass Co, 404 US 157, 171 n 11, 181 n 20; 92 S Ct 383; 30 L Ed 2d 341 (1971). See also Int'l Brotherhood of Electrical Workers v Citizens Telecom Co of California, 549 F3d 781, 786-788 (CA 9, 2008); United Steelworkers of America v Canron, Inc, 580 F2d 77, 80-81 (CA 3, 1978); Maytag Corp v UAW, 687 F3d 1076, 1085 (CA 8, 2012); Pierce v Security Trust Life Ins Co, 979 F2d 23, 30 (CA 4, 1992); American Federation of Grain Millers v Int’l Multifoods Corp, 116 F3d 976, 979 (CA 2, 1997).
Allied Chem, 404 US at 181-182 & n 20.
Garbinski v Gen Motors LLC, 521 Fed Appx 549, 552-553 (CA 6, 2013).
Id. at 556-557.
Id. at 557.
Id.
See id. at 556. See also Sprague v Gen Motors Corp, 133 F3d 388, 400-401 (CA 6, 1998) (en banc) (refusing to infer an employer’s lifetime commitment to vest healthcare benefits to retirees from silence and ambiguous language in a contract that was not collectively bargained).
M&G Polymers, 574 US _; 135 S Ct 926.
Id. at _; 135 S Ct at 935.
See, e.g., UAW v Yard-Man, Inc, 716 F2d 1476 (CA 6, 1983), overruled by M&G Polymers, 574 US at _; 135 S Ct at 937.
M&G Polymers, 574 US at _; 135 S Ct at 936.
Id. at _; 135 S Ct at 936.
Id. at _; 135 S Ct at 937, quoting Litton Fin Printing Div v NLRB, 501 US 190, 207; 111 S Ct 2215; 115 L Ed 2d 177 (1991).
M&G Polymers, 574 US at _; 135 S Ct at 937. See also Gallo v Moen Inc, 813 F3d 265, 269, 271 (CA 6, 2016) (stating that “we should not expect to find lifetime commitments in time-limited agreements” and that “[i]f [M&G Polymers] tells us anything, however, it is that the use of the future tense without more—without words committing to retain the benefit for life—does not guarantee lifetime benefits”), citing M&G Polymers, 574 US at _; 135 S Ct at 937. See also Bland v Fiatallis North America, Inc, 401 F3d 779, 784 (CA 7, 2005) (“Upon vesting, benefits become forever unalterable, and because employers are not legally required to vest benefits, the intention to vest must be found in ‘clear and express language’ in plan documents.”), citing Inter-Modal Rail Employees Ass’n v Atchison, T & SF R Co, 520 US 510, 515; 117 S Ct 1513; 137 L Ed 2d 763 (1997); Vallone v CNA Fin Corp, 375 F3d 623, 632 (CA 7, 2004) (stating that “a modification that purports to vest welfare benefits must be contained in the plan documents and must be stated in clear and express language”); Sengpiel v BF Goodrich Co, 156 F3d 660, 667 (CA 6, 1998) (stating that the intent to vest must be found in the plan documents and stated in clear and express language); UAW v Skinner Engine Co, 188 F3d 130, 139 (CA 3, 1999) (stating that an employer’s commitment to vest welfare-plan benefits must not be inferred lightly and must be stated in clear and express language).
Plaintiff also maintains that in order to establish its right to coordination, defendant must provide “clear and unmistakable evi dence” that plaintiff intended to waive his state-law right to uncoordinated workers’ compensation benefits on the basis of the postretirement amendments of the 1990 CBA. See Lingle v Norge Div of Magic Chef, Inc, 486 US 399, 409 n 9; 108 S Ct 1877; 100 L Ed 2d 410 (1988). Plaintiffs reliance on Lingle is misplaced. Lingle spoke of “clear and unmistakable” evidence as being necessary to overcome an Illinois law prohibiting the parties to a collective-bargaining agreement from altering a worker’s rights under the state worker’s compensation scheme. See id. No such law exists in Michigan. Indeed, the only basis for plaintiffs entitlement to uncoordinated workers’ compensation benefits was the 1990 Letter of Agreement and the 1990 CBA, which were authorized under MCL 418.354(14) but did not create a vested right to uncoordinated workers’ compensation benefits. Accordingly, there was nothing for plaintiff to waive.
The Court of Appeals and plaintiff placed particular emphasis on the deposition testimony of Elizabeth LaMarra, defendant’s manager of life insurance and disability plans, who testified that “there is only one pension plan” and further agreed with the statement that “employe [es] that retire under different contracts have different entitlements based on when they retired . . . .” According to the Court of Appeals and plaintiff, this testimony demonstrates that in the absence of any new agreement with plaintiff explicitly reserving for defendant the right to unilaterally modify the agreement under which plaintiff retired, coordination of plaintiffs benefits was not permissible.
First, this analysis fails to recognize that nonvested rights may be modified absent an unequivocal agreement to the contrary. Accordingly, that plaintiff was entitled to uncoordinated benefits at his retirement did not indefinitely prohibit defendant from entering into a subsequent agreement permitting benefit coordination when there was no agreement to that effect. Second, the fact that the attendant letters of agreement modified a single, continuous pension plan has no bearing on the coordination issue because the 1990 Letter of Agreement and the letters of agreement thereafter correspond to the respective CBAs, not the pension plan. Thus, plaintiffs and the Court of Appeals’ reliance on this testimony is misplaced. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted. We note that a similar issue is presented in People v Smith (Docket No. 153085), which we remanded to the Court of Appeals for consideration as on leave granted by order dated March 9, 2016. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Wayne Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. We do not retain jurisdiction. | [
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Leave to appeal denied at 499 Mich 856. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Kent Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resen-tence the defendant. | [
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summary disposition at 498 Mich 901; reported below: 303 Mich App 392. | [
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Leave to appeal denied at 499 Mich 880. | [
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We direct the Clerk to schedule oral argument in this case for the same future session of the Court when it will hear oral argument in People v Comer (Docket No. 152713). The Wayne County Prosecutor is invited to file a brief amicus curiae in People v Comer (Docket No. 152713). | [
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Zahra, J.
(dissenting). I respectfully dissent from the Court’s order denying the application for leave to appeal. I would peremptorily reverse, in part, the judgment of the Court of Appeals and reinstate the trial court’s order granting summary disposition in favor of defendants, for the reasons stated in Court of Appeals Judge Jansen’s partial dissent. The testimony of plaintiffs expert witnesses on the secondary theory of causation—that Sandra Peetz might well have survived if the CT scan had been performed sooner—was unsupported by evidence and necessarily based on conjecture. Simply put, the jury cannot be permitted to speculate whether plaintiffs decedent would have survived had a CT scan been performed sooner than it actually was performed.
A plaintiff in a medical malpractice action must establish “(1) the applicable standard of care, (2) breach of that standard of care by the defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury.” MCL 600.2912a(2) specifically provides that a plaintiff in a medical malpractice action “cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.” Expert testimony is generally required to establish the standard of care, a breach of the standard of care, and causation in medical malpractice cases. An “expert opinion based upon only hypothetical situations is not enough to demonstrate a legitimate causal connection between a defect and injury.”
On December 7, 2007, defendant Dr. Sachinder S. Hans, a vascular surgeon, performed a carotid endarterectomy on Sandra Peetz. The procedure was completed and Peetz was in recovery by 11:00 a.m. Around 12:15 p.m., Hans assessed Peetz’s condition and noted neuro logical deficits consistent with a stroke. Soon thereafter, Hans performed a second, emergency surgery to determine the cause of Peetz’s symptoms. Hans did not discover indicia of a stroke during the surgery, but inserted a stent as a precaution, and the surgery was completed around 3:45 p.m. After seeing no improvement in Peetz’s neurological condition, Hans ordered a CT scan at approximately 5:00 p.m. Peetz was taken in for the scan around 6:15 p.m. The scan revealed a chronic subdural hematoma with acute hemorrhage and subarachnoid bleeding. Shortly after, Peetz was placed on life support. As the hematoma had expanded, Peetz’s brain was compressed and shifted, and as a result her brainstem was herniated.
The testimony of plaintiffs experts failed to establish that Hans caused Peetz’s death when he did not order a CT scan immediately after the second surgery. The experts offered conflicting opinions regarding when Hans should have ordered a CT scan. Dr. M. Wayne Flye testified that Hans’s decision to perform a second surgery instead of ordering a CT scan after the first surgery was appropriate. While Flye testified that the CT scan should have been done sooner after the second surgery, however, he was unable to provide a specific time at which Peetz’s condition could have been reversed, stating, “It’s hard to tell. ... I can’t really tell you, no.” He nonetheless concluded that minutes could have affected the result. Dr. Donald C. Austin testified that the CT scan should have been completed after the first surgery, but further stated that Peetz would have survived had the CT scan been done immediately after the second surgery. Significantly, neither expert provided objective medical evidence, such as peer-reviewed published literature of other objective medical data, to support his conclusion. Absent that evidence, the jury would have been left to speculate whether Peetz would have survived had a CT scan been performed sooner.
The testimony of plaintiffs experts also failed to establish that there was a 50% or greater chance of an opportunity to survive or achieve a better result, as required by MCL 600.2912a(2), had Hans ordered the CT scan immediately after the second surgery. Flye testified equivocally when asked if Peetz more likely than not would have survived if the CT scan had been done right after the second surgery, and he provided no factual or medical basis for his opinion. Austin testified equivocally when asked during what time Peetz’s condition could have been reversed or she could have been saved. Significantly, medical literature before the trial court stated that intracerebral hemorrhages following carotid endarterectomies, like that sustained by Peetz, are extremely rare and almost always fatal. Therefore, plaintiff failed to overcome the MCL 600.2912a(2) bar to recovery when the opportunity to survive was 50% or less.
The speculative testimony and unsupported, conclusory opinions offered by plaintiffs experts in regards to the timing of the CT scan failed to sufficiently establish proximate causation. Defendants were therefore entitled to summary disposition. Accordingly, I respectfully dissent and would reverse the judgment of the Court of Appeals in regards to the CT scan theory of causation.
Markman, J., joined the statement of Zahra, J.
Locke v Pachtman, 446 Mich 216, 222 (1994). See also MCL 600.2912a(1).
MCL 600.2912a(2) also requires a plaintiff alleging medical malpractice to prove that “he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants.” (Emphasis added.)
Woodard v Custer, 473 Mich 1,6 (2005); Teal v Prasad, 283 Mich App 384, 394-395 (2009).
Skinner v Square D Co, 445 Mich 153, 173 (1994); see also Craig v Oakwood Hosp, 471 Mich 67, 87 (2004) (“[A] plaintiff cannot satisfy this [causation] burden by showing only that the defendant may have caused his injuries. Our case law requires more than a mere possibility or a plausible explanation.”).
Carotid endarterectomy is a procedure to remove a buildup of plaque from the carotid artery walls.
Peetz died the following day when life support was removed.
While peer-reviewed, published literature is not always necessary to meet the requirements of MRE 702, in this case the lack of supporting literature, along with the lack of any other form of support for these expert opinions, renders the testimony inadmissible under MRE 702. See Edry v Adelman, 486 Mich 634, 641 (2010).
Locke, 446 Mich at 229 (“[T]he jury should not be left to speculate in this regard. It is precisely to avoid such speculation that expert testimony is ordinarily required.”); Skinner, 445 Mich at 166 (“ ‘There must be more than a mere possibility that unreasonable conduct of the defendant caused the injury. We cannot permit the jury to guess . . . .’ ”) (citation omitted).
Flye answered:
Well, it depends upon when you do it. If you did it 20 minutes before the CT scan was reported, it’s hard to say, but within a reasonable — you can get a CT scan from the operating room in 45 minutes. I would think that in that setting more than likely the patient would have been salvaged.
See Wischmeyer v Schanz, 449 Mich 469, 484 (1995) (stating that failure to prove any one of the elements of a medical malpractice claim is fatal). | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Montcalm Circuit Court for consideration of the defendant’s issue regarding the assessment of court costs. We do not retain jurisdiction. | [
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Leave to appeal denied at 498 Mich 919. | [
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Markman, J.
(dissenting). I would grant leave to appeal to consider whether the Court of Appeals erred by concluding that material issues of fact remained in support of plaintiffs claim of fraudulent inducement and therefore reversing the trial court’s grant of summary disposition in favor of defendant. Hamade v Sunoco, Inc (R&M), 271 Mich App 145, 165-172 (2006); UAW-GM Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 502-507 (1998). | [
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Leave to appeal denied at 499 Mich 915. | [
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McCormack, J.
(dissenting). I respectfully dissent from this Court’s order denying leave to appeal. I would grant leave to appeal to address whether Obergefell v Hodges, 576 US _; 135 S Ct 2584 (2015), compels us to apply our equitable-parent doctrine to custody disputes between same-sex couples who were unconstitutionally prohibited from becoming legally married.
Until 2015, same-sex couples were not permitted to marry in Michigan. See MCL 551.1. Nor did Michigan recognize a legal marriage between a same-sex couple solemnized in another jurisdiction. See MCL 551.271; Const 1963, art 1, § 25. Michigan also prohibited second-parent adoption between unmarried couples. See MCL 710.24. Thus, before the Supreme Court’s decision in Obergefell, a same-sex partner had no legal recourse to seek parental rights to a child born or adopted into his or her committed relationship but carried or adopted by his or her partner. I would grant leave to appeal to consider whether the Court of Appeals’ peremptory order in this case illustrates and perpetuates the troubling effect of this state’s unconstitutional ban on same-sex marriage and second-parent adoption identified by the Supreme Court in Obergefell.
The relationship between the parties in this case was longstanding and committed. The plaintiff and the defendant began their relationship in 1995 in Philadelphia and soon after moved together to Michigan. The parties took repeated steps to solidify their relationship and demonstrate their commitment to one another. These steps included filing a declaration of domestic partnership, purchasing a home together, entering a formal domestic-partnership agreement, solemnizing their relationship in a commitment ceremony in Hawaii, and entering into a marriage covenant in the form of a ketubah. The defendant took the plaintiffs last name. During the entire course of their relationship, they were prohibited from marrying each other in Michigan, and Michigan did not recognize extra-jurisdictional same-sex marriage.
After taking these deliberate steps to solidify their relationship, the parties decided to have children. They agreed that the defendant would carry the children through pregnancy using an anonymous donor. The parties had three children between 2001 and 2008, all of whom were biological children of the defendant but took the plaintiffs last name and were parented by both the defendant and the plaintiff. During their relationship, the plaintiffs parental role in the children’s lives was significant: she provided the defendant and the children with health insurance, she was the sole financial provider for the family, and she provided care and guidance to the children. The defendant executed a will and trust agreements that provided that in the event of her death, the plaintiff would be the children’s legal guardian and conservator.
In 2010, five years before the decision in Obergefell, the parties ended their 15-year relationship. For the following year, the plaintiff remained in the family home, continued paying for health insurance for the defendant and the children, and paid all other family bills and living expenses. Eventually, the parties were unable to resolve custody and financial-support arrangements, and the defendant prohibited the plaintiff from seeing the children.
After Obergefell was decided, the plaintiff filed a complaint for custody and parenting time, seeking legal and physical custody of the parties’ three children pursuant to Michigan’s common-law equitable-parent doctrine. The trial court denied the defendant’s early motion for summary disposition, noting that it needed further factual development before it could decide whether the plaintiff had standing to pursue custody under the equitable-parent doctrine. See Atkinson v Atkinson, 160 Mich App 601 (1987). The defendant filed an interlocutory appeal in the Court of Appeals, and the Court of Appeals peremptorily vacated the trial court’s denial of summary disposition. The order held that the plaintiff did not have standing to bring a custody action pursuant to the equitable-parent doctrine because that doctrine is only available to a parent who was married. Mabry v Mabry, unpublished order of the Court of Appeals, entered December 18, 2015 (Docket No. 329786). The plaintiff sought leave to appeal in this Court, arguing that the failure to apply the equitable-parent doctrine to nonbiological parents who were unconstitutionally prohibited from marrying the biological parent of their children violated her equal protection and due process rights as well as those of her children.
The equitable-parent doctrine recognizes a third person who is not a biological parent as the child’s parent when (1) the would-be equitable parent and the child acknowledge the parental relationship or the biological or adoptive parent has cultivated the development of a relationship over a period of time, (2) the would-be equitable parent desires to have the rights afforded a parent, and (3) the would be-equitable parent is willing to pay child support. Atkinson, 160 Mich App at 608-609. This Court endorsed the equitable-parent doctrine in Van v Zahorik, 460 Mich 320, 330-331 (1999), but limited its application to would-be parents who were married.
The plaintiffs constitutional challenges merit further review from this Court. I would grant leave to consider whether Obergefell compels us to apply the equitable-parent doctrine to same-sex couples who had children conceived or adopted by one party during their relationship but were unconstitutionally prohibited from marrying under this state’s law. I would address whether the line drawn by the Court of Appeals in this case impermissibly violates both the plaintiffs and her children’s equal protection and due process rights by creating an untenable requirement that same-sex couples have sought a legal marriage in another jurisdiction, despite the fact that any extra-jurisdictional marriage would have been legally unrecognized in Michigan.
In Obergefell, the Supreme Court held that Michigan’s ban on same-sex marriage was unconstitutional, that marriage is a fundamental right, and that same-sex couples and their children are equally entitled to the benefits of marriage. Obergefell, 576 US _, _; 135 S Ct at 2604-2605. Indeed, the children of same-sex couples and their constitutional rights were central to the Court’s analysis in Obergefell. The Court reasoned:
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. [Id. at _; 135 S Ct at 2600-2601.]
The Court’s decision in Obergefell reflects a long-recognized constitutional principle that children born to unmarried parents are entitled to the same benefits as children born to married parents. See, e.g., Weber v Aetna Cas & Surety Co, 406 US 164, 165 (1972) (holding that a workers’ compensation statute denying equal recovery rights to dependent unacknowledged children violated equal protection); Clark v Jeter, 486 US 456, 457, 465 (1988) (holding that a six-year statute of limitations for paternity actions to seek support, required for a child of an unmarried couple but not a child of a married couple, violated equal protection); New Jersey Welfare Rights Org v Cahill, 411 US 619, 621 (1973) (holding that a state program that denied benefits to children who were not of the marriage violated equal protection).
The Court of Appeals’ order in this case overlooks this general principle. If not for this state’s unconstitutional prohibition on their parents’ right to marry, the children in this case would be entitled to all the benefits conferred on children of opposite-sex couples by the equitable-parent doctrine. And as a result of the Court of Appeals’ order, the parties’ children will be unable to seek the love and guidance of the plaintiff, have access to her healthcare benefits, social security benefits, and death benefits, or inherit from her if she dies intestate.
What is more, the plaintiff’s fundamental right to parent her children is potentially violated by the Court of Appeals’ ruling. Denying individuals who were unconstitutionally prohibited from marrying access to the equitable-parent doctrine perpetuates the constitutional harms inflicted by the state’s unconstitutional prohibition of same-sex marriage. By denying the parties access to marriage, and subsequently to the benefits of marriage, including the equitable-parent doctrine, the Court of Appeals’ ruling may contravene the United States Supreme Court’s direction in Obergefell that same-sex couples have a fundamental right to marriage and the benefits of marriage.
This case is of course distinguishable from our decision in Van, in which the parties had the option to get married, but chose not to. Van, 460 Mich at 323. The plaintiff here was unconstitutionally prohibited from marrying the defendant, though she took every legal step available to replicate marriage. In my view, the Court of Appeals’ decision overlooks our central reasoning in Van, in which we noted that limiting the equitable-parent doctrine to children born or adopted within a marriage reinforces the “importance of marriage and legitimacy.” Id. at 333. When the parents themselves did not choose not to marry, but instead had that choice made for them by our state’s laws, and the parents otherwise demonstrated the same commitment and legitimacy as married parents, their children should not be barred from the potential benefits of our common-law rule. In other words, we should consider whether the constraint that makes it impossible for the children of same-sex parents to benefit from the equitable-parent doctrine is constitutionally viable post-Obergefell.
The defendant’s argument that this Court should not apply the equitable-parent doctrine to the plaintiff because it would enable any third party to gain parental rights is not powerful. The plaintiff is not any person. She acted as a parent, providing her name, her love, support, and affection, her financial support, and her health insurance to these children. Yet, under the Court of Appeals’ order, she is a legal third party to the children. I think that this Court might fashion a rule to ensure that the plaintiff’s and the children’s constitutional rights are protected without opening the doctrine to any third party seeking parental rights.
Not surprisingly, this issue is not unique to Michigan. Other state courts have grappled with the implications of Obergefell on common-law doctrines akin to our equitable-parent doctrine. Many have already extended similar equitable doctrines to same-sex couples who were prohibited from marrying yet had children during their relationship. These states have provided guidance and workable rules for trial courts under similar doctrines while preserving the constitutional rights of same-sex couples who were unconstitutionally prohibited from marrying and parenting their children. See, e.g., In re Registered Domestic Partnership of Madrone, 271 Or App 116, 129 (2015) (holding that “[blecause the question is whether a couple would have married if they could have, the factfinder must determine what the individual’s views would have been if marriage had not been prohibited”); Ramey v Sutton, 2015 Okla 79, ¶ 13; 362 P3d 217, 220-221 (2015) (holding that a same-sex couple’s failure to marry before Obergefell could not be used to prevent the nonbiological parent from seeking custody of the child when she had acted in loco parentis to the child); cf. Conover v Conover, _ Md _, _ (July 7,2016) (Docket No. 79), pp 35-36 (holding that a same-sex partner had standing under the de facto parent doctrine to pursue custody of a child born to her partner before their marriage).
As with all child custody disputes, the child’s best interests are paramount, and trial courts regularly engage in fact-finding to determine how those interests should be served. I believe Michigan’s trial courts are capable of evaluating the parties’ relationship to determine whether the parties would have married but for Michigan’s unconstitutional prohibition of same-sex marriage in the limited number of cases in which this issue will arise.
Like the many other state courts addressing this issue, then, I would grant leave to appeal to consider whether Obergefell v Hodges compels us to apply our equitable-parent doctrine to custody disputes between same-sex couples who were unconstitutionally prohibited from becoming legally married. The Constitution might require that the children born and adopted into same-sex families be able to access the same benefits that children born into opposite-sex families have under Michigan law when they arrive at our courthouse doors. At the very least, this question deserves this Court’s considered analysis.
Bernstein, J., joined the statement of McCormack, J.
The defendant has argued that the equitable-parent doctrine should not apply to the plaintiff because it would infringe her rights to parent by allowing any person the ability to seek custody. See Troxel v Granville, 530 US 57 (2000) (holding that a visitation statute that allowed any person to petition a court for visitation rights violated the fundamental right of the child’s parents to parent).
Many other states addressed this issue before Obergefell. See, e.g., Bethany v Jones, 2011 Ark 67, pp 10-12 (2011) (holding that a same-sex partner, who was not legally married, stood in loco parentis to the child); ENO v LMM, 429 Mass 824, 829-830 (1999) (holding that a same-sex partner was the de facto parent of the biological child of her former partner); Mullins v Picklesimer, 317 SW3d 569, 574-577 (Ky, 2010) (holding that a same-sex partner had standing to pursue custody of her former partner’s biological child when the child was born into the relationship and the partner coparented the child); In re Parentage of LB, 155 Wash 2d 679, 683 (2005) (holding that a same-sex partner had standing to pursue custody of her former partner’s biological child when she was the de facto parent). And while some other states have yet to squarely address the issues raised in this case post-Obergefell, they have resolved similar issues on the basis of their unique state statutes. See, e.g., McGaw v McGaw, 468 SW3d 435, 442-443, 448 (Mo App, 2015) (holding that the equitable-parentage theory did not apply to a same-sex couple who had separated before Obergefell because there was a separate statute enabling the parent to seek third-party custody and visitation); Russell v Pasik, 178 So 3d 55, 61 (Fla App, 2015) (holding that a same-sex partner did not have standing to seek custody and visitation rights by asserting de facto parent status, but noting that the same-sex partner could have adopted the children under Florida’s adoption statutes); Sheets v Mead, 238 Ariz 55, 58 (Ariz App, 2015) (denying nonparent visitation to a same-sex partner, who had been a foster parent of the child with her partner before the couple’s separation, after the other partner adopted the child because the child was no longer “bom out of wedlock” as required by the statute providing nonparent visitation rights).
Any exception to our decision in Van, 460 Mich 320, limiting the equitable-parent doctrine to married couples would extend only to the small group of same-sex couples who were unconstitutionally prohibited from marrying but separated before the Supreme Court’s decision in Obergefell and have a custody dispute. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Wayne Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. We leave intact the remand ordered by the Court of Appeals. With regard to the defendant’s challenge to costs, leave to appeal is denied, because we are not persuaded that the question presented should be reviewed by this Court prior to the completion of the proceedings ordered by the Court of Appeals. In all other respects, leave to appeal is denied because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction. | [
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By order of April 28, 2015, the application for leave to appeal the September 13, 2012 judgment of the Court of Appeals was held in abeyance pending the decision in Montgomery v Louisiana, cert gtd 575 US _; 135 S Ct 1546; 191 L Ed 2d 635 (2015). On order of the Court, the case having been decided on January 25, 2016, Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016), the application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Lake Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Montgomery v Louisiana, supra; Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction. | [
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On order of the Court, this Court’s April 6, 2016 order is amended, to correct a clerical error, and reads as follows:
On order of the Court, the application for leave to appeal the May 26, 2015 order of the Court of Appeals is considered, and it is granted. The parties shall include among the issues to be briefed: (1) whether Casco Twp v State Boundary Comm, 243 Mich App 392, 399 (2000), correctly held that the State Boundary Commission (SBC) has the authority to determine the validity of an agreement made pursuant to the Intergovernmental Conditional Transfer of Property by Contract Act, 1984 PA 425, MCL 124.21 et seq. (Act 425); (2) if so, whether the SBC in this case properly determined that the appellant townships’ Act 425 Agreement was invalid; and (3) whether, despite the language of MCL 117.9(6) and MCL 123.1012(3) (providing a two-year waiting period before resubmission of a petition for annexation), the doctrine of collateral estoppel applied to invalidate the SBC’s 2014 approval of the appellee property owner’s petition for annexation on the basis of the SBC’s denial of the same property owner’s petition in 2012.
We further order that this case be argued and submitted to the Court together with the case of TeriDee LLC v Haring Charter Twp (Docket No. 153008), at such future session of the Court as both cases are ready for submission. In light of the joint submission, the time allotted for oral argument shall be limited to fifteen minutes per side in each case. MCR 7.314(B)(1). Motions for permission to file briefs amicus curiae and briefs amicus curiae regarding these two cases should be filed in Clam Lake Twp v Dep’t of Licensing & Regulatory Affairs (Docket No. 151800) only and served on the parties in both cases. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Ionia Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VT of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In addition, we vacate the trial court’s November 21, 2014 order reinstating costs. The court did not have authority to sua sponte enter the order because the correction was not a clerical error under MCR 6.435(A), the judgment of sentence was not invalid within the meaning of MCR 6.429(A), and the amended version of MCL 769.1k does not apply to the court’s amended judgment of sentence issued September 29, 2014. We do not retain jurisdiction. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Eaton Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. | [
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Leave to appeal denied at 499 Mich 868. | [
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Leave to appeal denied at 499 Mich 869. | [
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Leave to appeal denied at 498 Mich 921. | [
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By order of April 28,2015, the application for leave to appeal the June 3, 2014 order of the Court of Appeals was held in abeyance pending the decision in Montgomery v Louisiana, cert gtd 575 US _; 135 S Ct 1546; 191 L Ed 2d 635 (2015). On order of the Court, the case having been decided on January 25, 2016, Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016), the application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Saginaw Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Montgomery v Louisiana, supra; Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). We do not retain jurisdiction. | [
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ZAHRA, J.
In this case, we consider whether a sentencing court may assess a defendant 15 points for “predatory conduct” under Offense Variable (OV) 10 (exploitation of a vulnerable victim), MCL 777.40, solely on the basis of the predatory conduct of a defendant’s co-offenders. We conclude that it may not. In direct contrast to other OVs, MCL 777.40 contains no language directing a court to assess a defendant the same number of points as his co-offenders in multiple-offender situations. We decline to import such language into OV 10, as it is a well-established rule of statutory construction that this Court will not read words into a statute that the Legislature has excluded.
The trial court assessed 15 points for OV 10 solely on the basis of the predatory conduct of defendant’s co-offenders. Defendant appealed this decision, but the Court of Appeals declined to address “whether a trial court may consider the conduct of a co-offender when scoring OV 10 . . . .” Instead, the Court of Appeals concluded that the trial court’s scoring of OV 10 was supported by defendant’s own conduct. However, because the trial court did not itself find that defendant’s own conduct was predatory in nature, we conclude that the Court of Appeals failed to review the trial court’s findings for clear error as required by People v Hardy. Accordingly, we reverse in part the judgment of the Court of Appeals and remand this case to the trial court for further proceedings not inconsistent with our holding that a sentencing court may not assess a defendant 15 points for “predatory conduct” under OV 10 solely on the basis of the predatory conduct of the defendant’s co-offenders. In all other respects, leave to appeal is denied.
I. FACTS AND PROCEEDINGS
This case arises from a robbery that occurred in Hamtramck on October 20, 2012. On that date, defendant drove four men, including Marvin Graham and Calvin Gloster, defendant’s brother, to Hamtramck. Graham attacked the victim outside the Polish Market. According to surveillance footage, Graham and Calvin Gloster stood outside the market and watched a man walking alone, two individuals, and a group of children pass by before Graham attacked the victim, a woman who was walking alone. In an attempt to steal the woman’s necklace, Graham hit her in the back of her head and knocked her to the ground. When onlookers intervened, Graham and Calvin Gloster fled, but not before Calvin Gloster shot one of the intervening onlookers with a pistol.
During the robbery, defendant was parked near the Polish Market. After Graham and Calvin Gloster fled, defendant picked the men up, which required him to circle around the block to find Graham, and drove them out of the area. After he was arrested by police and interrogated about his participation in the robbery, defendant admitted that he had acted as the getaway driver in the robbery. Specifically, he admitted driving the men to the area and that they were “trying to get some money, simple as that.” He also admitted driving the men out of the area following their failed attempt to obtain the victim’s necklace.
The prosecution charged defendant as an aider and abettor to armed robbery under MCL 750.529 and unarmed robbery under MCL 750.530. After deliberation, the jury convicted defendant of aiding and abetting armed robbery.
The trial court sentenced defendant to 85 months to 20 years in prison. At sentencing, the parties disagreed about whether OV 10 should be scored at 15 points for predatory conduct. The court agreed with the prosecution that it should, ruling that the score was appropriate because, while defendant waited in the car, the other two perpetrators waited for an appropriate victim.
Defendant appealed the trial court’s decision in the Court of Appeals, arguing in part that it was erroneous to base defendant’s OV 10 score on his co-offenders’ conduct. Instead, defendant claimed, OV 10 should be scored only for the individual defendant’s conduct. He also argued that his co-offenders’ conduct was not predatory in nature under existing caselaw. The Court of Appeals affirmed the trial court’s scoring in an unpublished opinion per curiam, concluding that “[d]e-fendant aided and abetted the commission of an offense that involved the exact sort of‘predatory conduct’ OV 10 is designed to punish.” In a footnote, the panel dismissed defendant’s argument that his OV 10 score was based solely on his co-offenders’ conduct. To the contrary, the panel concluded that “the record demonstrates that the trial court scored defendant for his conduct—specifically, his role in selecting a vulnerable victim.”
Defendant sought leave to appeal in this Court. We directed the Clerk of the Court to schedule oral argument on whether to grant the application or take other action. We specifically requested that the parties address
whether the defendant was properly assigned 15 points for offense variable (OV) 10, MCL 777.40, for predatory conduct, and in particular, whether the scoring of OV 10 was proper based on the defendant’s own conduct, or alternatively, based on the conduct of the defendant’s accomplices. See MCL 767.39; cf. People v Hunt, 290 Mich App 317, 325-326 [810 NW2d 588] (2010) (conviction not based on aid and abetting), cited in People v Hardy, 494 Mich 430, 442 n 32 [835 NW2d 340] (2013).[ ]
II. STANDARD OF REVIEW
A trial 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.”
III. ANALYSIS
OV 10, governed by MCL 777.40, provides in relevant part:
(1) Offense variable 10 is exploitation of a vulnerable victim. Score offense variable 10 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) Predatory conduct was involved.15 points
(b) The 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 . 10 points
(c) The offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious.5 points
(d) The offender did not exploit a victim’s vulnerability .0 points
(2) The mere existence of 1 or more factors described in subsection (1) does not automatically equate with victim vulnerability.
As used in this section, “ ‘predatory conduct’ means preoffense conduct directed at a victim, or a law enforcement officer posing as a potential victim, for the primary purpose of victimization.”
MCL 777.40 contains no language directing a court to assess a defendant points for OV 10 on the basis of conduct by a defendant’s co-offenders in multiple-offender situations. This is in direct contrast to OVs 1, 2, and 3, all of which specifically direct a court to assign a defendant the same number of points that all offenders are assessed in multiple-offender cases. OV 1 (aggravated use of a weapon) provides that “[i]n multiple offender cases, if 1 offender is assessed points for the presence or use of a weapon, all offenders shall be assessed the same number of points.” OV 2 (lethal potential of weapon possessed or used) and OV 3 (physical injury to victim) similarly mandate that “all offenders” in a multiple-offender case “shall be assessed the same number of points.” Since this language clearly indicates that all offenders must have the same number of points assessed, it follows that a trial court must assess a defendant points for OVs 1, 2, and 3 when his or her co-offender had points for those OVs assessed, even if the conduct that serves as the basis for scoring those OVs was solely that of the co-offender.
“Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.” Because the Legislature has explicitly provided that all offenders in a multiple-offender situation should receive the same score for OVs 1, 2, and 3, but excluded that language from other OVs, we conclude that a defendant shall not have points assessed solely on the basis of his or her co-offenders’ conduct unless the OV at issue specifically indicates to the contrary. To conclude otherwise would require this Court to read the multiple-offender language into the OV at issue, in this case OV 10, in violation of our principles of statutory interpretation.
We are not persuaded by the prosecution’s claim that a defendant may have points assessed under OV 10 solely on the basis of the conduct of his or her co-offenders because the language simply requires that “[p]redatory conduct was involved” without specifying that the predatory conduct must have been the defendant’s. We note that OVs 1 and 3 are similarly worded in the passive voice, yet the Legislature found it necessary to include a separate subsection that explicitly requires a court to assess the defendant the same number of points as his or her co-offenders. If the presence of passive language in an OV required a sentencing court to assess a defendant points solely on the basis of the conduct of the defendant’s co-offenders, then those separate subsections in OVs 1 and 3 would be rendered surplusage, in violation of this Court’s principles of statutory interpretation.
Moreover, the Legislature has demonstrated in other OVs that its failure to specify the defendant being sentenced as the actor does not itself mean that a sentencing court should assess the defendant points solely on the basis of his or her co-offenders’ conduct. For example, OV 16 (property obtained, damaged, lost, or destroyed), MCL 777.46(l)(b) through (e), lists the points to be assessed if “[t]he property had a value” ranging from $200 to more than $20,000 or if “[n]o property was obtained, damaged, lost, or destroyed or the property had a value of less than $200.00.” Subsection (2)(a) then states that “[i]n multiple offender or victim cases, the appropriate points may be determined by adding together the aggregate value of the property involved . . . .” If the Legislature’s failure to specify that the assessment of points under OV 16 must be based on the defendant’s conduct meant that the defendant must have points assessed for property damage, loss, or destruction attributed solely to his or her co-offenders, then there would have been no need for Subsection (2)(a) to instruct courts to aggregate the value of the property involved in multiple-offender cases. OV 11 (criminal sexual penetration), MCL 777.41(1), requires the assessment of points if at least one “sexual penetration occurred” without specifying that it must be the defendant who engaged in that sexual penetration. Subsections (2)(a) and (b) then indicate that the Legislature was nonetheless referring to the defendant’s conduct, not the conduct of the defendant and his or her co-offenders. That is, Subsection (2)(a) directs the court to “[s]core all sexual penetrations of the victim by the offender [defendant] arising out of the sentencing offense,” and Subsection (2)(b) specifies that “[m]ultiple sexual penetrations of the victim by the offender [defendant] extending beyond the sentencing offense may be scored in offense variables 12 or 13 [MCL 777.42 and MCL 777.43] .” Thus, it appears clear that even when an OV is phrased in a manner that does not explicitly refer to the defendant as the actor, the court may not assess that defendant points solely on the basis of his or her co-offender’s conduct unless the OV at issue explicitly directs the court to do so.
Applying this analysis to the instant case, we conclude that the trial court erred by assessing defendant 15 points for OV 10 because the record indicates that the court based its assessment of points entirely on the conduct of defendant’s co-offenders. That is, the trial court supported its score by explaining that two of the people defendant drove to Hamtramck “went out to the corner to watch for an appropriate victim. . . .” The trial court thus considered only the conduct of defendant’s co-offenders in watching for an appropriate victim when it assessed defendant 15 points for predatory conduct. For the reasons described above, this was in error. The Court of Appeals likewise erred by concluding that the trial court’s scoring of OV 10 was supported by defendant’s own conduct. Because the trial court did not itself find that defendant’s own conduct was predatory in nature, the Court of Appeals failed to review the trial court’s findings for clear error as required by People v Hardy.
IV. CONCLUSION
We reverse in part the judgment of the Court of Appeals and remand this case to the trial court for further proceedings not inconsistent with our holding that a sentencing court may not assess a defendant 15 points for predatory conduct under OV 10 solely on the basis of the predatory conduct of the defendant’s co-offenders. In all other respects, leave to appeal is denied because we are not persuaded that this Court should review the remaining question presented.
Young, C.J., and Markman, McCormack, Viviano, Bernstein, and Larsen, JJ., concurred with Zahra, J.
People v McIntire, 461 Mich 147, 152-163; 599 NW2d 102 (1999).
People v Gloster, unpublished opinion per curiam of the Court of Appeals, issued December 30, 2014 (Docket No. 316553), p 4 n 2.
Id.
People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
Gloster, unpub op at 3.
Id. at 4 n 2.
MCR 7.305(H)(1).
People v Gloster, 498 Mich 910 (2015).
Hardy, 494 Mich at 438.
Id.
MCL 777.40(3)(a), as amended by 2014 PA 350. At the time this case arose, MCL 777.40(3)(a) did not include the reference to “a law enforcement officer posing as a potential victim.”
MCL 777.31(2)(b).
MCL 777.32(2).
MCL 777.33(2)(a).
Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993).
The Court of Appeals reached a similar conclusion in People v Hunt, 290 Mich App 317; 810 NW2d 588 (2010). That case pertained to OV 7, which at that time directed a court to assess a defendant 50 points when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense!.]” MCL 777.37(l)(a), as amended by 2002 PA 137. In Hunt, the trial court assessed defendant 50 points for OV 7 even though the record indicated that his codefendant alone engaged in the behavior that led to the scoring for sadism, torture, or excessive brutality. The Court of Appeals reversed the trial court’s scoring decision, commenting:
[W]hile defendant was present and armed during the commission of the crimes here, he did not himself commit, take part in, or encourage others to commit acts constituting “sadism, torture, or excessive brutality” under OV 7. Moreover, 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.” For OV 7, only the defendant’s actual participation should be scored. [Hunt, 290 Mich App at 325-326 (citations omitted) (second and third alterations in original).]
See Byker v Mannes, 465 Mich 637, 646-647; 641 NW2d 210 (2002) (“It is a well-established rule of statutory construction that this Court will not read words into a statute.”).
MCL 777.40(1)(a).
See MCL 777.31(2)(b); MCL 777.33(2)(a).
State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002) (“Courts 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.”).
MCL 777.46(2)(a).
MCL 777.41(2)(a) (emphasis added).
MCL 777.41(2)(b) (emphasis added).
In the alternative, the prosecution argues that defendant should have 15 points assessed under OV 10 for aiding and abetting his co-offenders’ predatory conduct. We decline to address this argument given that the trial court did not score OV 10 under an aiding-and-ahetting theory. Instead, we leave it to the trial court on remand to determine whether it is appropriate to consider this alternative argument.
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Wayne Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012); Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016). In all other respects, leave to appeal is denied, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). We do not retain jurisdiction. | [
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Leave to appeal denied at 499 Mich 914. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Wayne Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction. | [
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BERNSTEIN, J.
This is a medical malpractice case involving (1) the admissibility of allegations of breaches of the standard of care that did not cause the plaintiffs injury and (2) the time at which a standard-of-care expert witness must meet the board-certification requirement in MCL 600.2169(l)(a). First, we vacate that portion of the Court of Appeals’ judgment ruling on the admissibility of the allegations in this case and remand for the circuit court to determine whether the disputed evidence is admissible under MRE 404(b). Second, we affirm the Court of Appeals’ conclusion that a proposed expert’s board-certification qualification is based on the expert’s board-certification status at the time of the alleged malpractice rather than at the time of the testimony.
I. FACTS AND PROCEDURAL HISTORY
In September 2008, plaintiff, Dustin Rock, fractured his right ankle while changing the brake pads on a truck. Defendant K. Thomas Crocker, D.O., a board-certified orthopedic surgeon, conducted surgery and provided postsurgical care. In October 2008, defendant allegedly told plaintiff that he could start bearing weight on his leg, though plaintiff did not start doing so at the time. In November 2008, another doctor, Dr. David Viviano, performed a second surgery on plain tiffs ankle, purportedly because the surgery performed by defendant had failed to unite all the pieces of the fracture. At the time of the surgery performed by defendant, Viviano was a board-certified orthopedic surgeon.
In June 2010, plaintiff filed this lawsuit, alleging that defendant had committed 10 specific negligent acts during the first surgery and over the course of postsurgical care. Plaintiff asserted that he suffered additional medical expenses, as well as loss of earnings and earning capacity, because of defendant’s negligence. Along with the complaint, plaintiff filed an affidavit of merit from Dr. Antoni Goral, a board-certified orthopedic surgeon who opined that defendant had breached the standard of care by (1) not using enough screws or the proper length plate for the fracture during the surgery and (2) prematurely allowing plaintiff to put weight on his leg after the surgery. However, Goral later admitted in a November 2011 deposition that the length and the placement of the plate and the number of screws used did not cause any injury to plaintiff because the bone had healed correctly. Goral also admitted that telling plaintiff his leg could bear weight did not cause plaintiffs injuries.
As a result of these admissions, defendant moved in limine to strike these two allegations and preclude plaintiff from presenting any evidence at trial regarding these alleged breaches of the standard of care. In response, plaintiff acknowledged that Goral’s statements failed to establish proximate causation, but argued that the evidence was relevant to defendant’s expertise and competency to perform the surgery. The trial court agreed with plaintiff and denied defendant’s motion. The trial court concluded that the evidence was part of the res gestae of the claim and was relevant to the issue of defendant’s general competency. The trial court also concluded that the prejudice posed by this evidence did not substantially outweigh its probative value under MRE 403.
During pretrial proceedings, plaintiff also identified Viviano as a standard-of-care expert. Although Viviano had been board-certified at the time of the alleged malpractice in September and October 2008, his certification expired in December 2011. In September 2012, defendant moved to exclude any standard-of-care testimony by Viviano because his board certification had expired before he testified and had not been renewed. The trial court granted defendant’s motion, concluding that MCL 600.2169(l)(a) was “clear on its face” that “the expert witness must ‘be’ a specialist who ‘is’ board certified in that specialty.” Rock v Crocker, unpublished opinion and order of the Kent Circuit Court, issued September 27, 2012 (Case No. 10-06307-NM), p 3. Because Viviano’s certification had since lapsed, the trial court concluded that he was not qualified to testify about the applicable standard of care. Id.
Plaintiff sought interlocutory leave to appeal, challenging the trial court’s ruling that barred Viviano from testifying. The Court of Appeals granted leave, and defendant cross-appealed. Relevant to the issues before us, defendant challenged the trial court’s order denying defendant’s motion in limine to strike the two allegations of malpractice that Goral testified had not caused plaintiffs injury.
In a published opinion, the Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. Rock v Crocker, 308 Mich App 155; 863 NW2d 361 (2014). The Court noted that defendant’s motion to strike the allegations actually comprised two separate motions: (1) a partial summary disposition motion because plaintiff may not seek damages for the two alleged breaches that did not cause the injury, and (2) a motion to exclude all evidence regarding the two allegations. Id. at 170. The Court agreed with defendant that plaintiff may not seek damages for those allegations. Id. Nonetheless, the Court of Appeals agreed with the trial court that the evidence underlying those allegations could be admitted at trial because it “may be relevant to the jury’s understanding of the case.” Id. However, given the finding that plaintiff could not seek damages for those alleged violations and the potential effect of that ruling on the MRE 403 analysis, the Court of Appeals remanded the case for reconsideration of the admissibility of the evidence. Id. With regard to the expert’s qualifications, the Court reversed the trial court’s ruling that Viviano could not testify as an expert.
We granted leave to appeal and directed the parties to brief
(1) whether the lower courts erred in concluding that allegations relating to violations of the standard of care that the plaintiffs expert admitted did not cause the plaintiffs injury were admissible as evidence of negligence; and (2) whether the Court of Appeals erred in holding that, if the defendant is a board-certified special ist, MCL 600.2169(l)(a) only requires an expert to be board certified in that same specialty at the time of the malpractice, and not at the time of trial. [Rock v Crocker, 497 Mich 1034; 863 NW2d 330 (2015).]
II. ADMISSIBILITY OF THE EVIDENCE
Defendant contends that evidence of alleged breaches of the standard of care that did not cause plaintiffs injury is inadmissible. The admission of evidence is reviewed for an abuse of discretion. Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). A trial court does not abuse its discretion when its decision falls within the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). “A court necessarily abuses its discretion when it ‘admits evidence that is inadmissible as a matter of law.’ ” Craig, 471 Mich at 76 (citation omitted).
In a medical malpractice case, the plaintiff bears the burden of proving (1) the applicable standard of care, (2) a breach of that standard by the defendant, (3) an injury, and (4) proximate causation between the alleged breach of duty and the injury. Wischmeyer v Schanz, 449 Mich 469, 484; 536 NW2d 760 (1995). MCL 600.2912a(2) specifically provides that “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.” Therefore, drawing a causal connection between a defendant’s breach of the applicable standard of care and a plaintiffs injuries is critical. See Craig, 471 Mich at 86.
With a general understanding of plaintiffs burden of proof, we turn to the Michigan Rules of Evidence to assess the admissibility of Goral’s testimony regarding the two breaches of the standard of care that did not cause the injury for which plaintiff now seeks compensation. To be admissible, evidence must be relevant. MRE 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. The relevance contemplated in MRE 401 and MRE 402 is logical relevance. People v VanderVliet, 444 Mich 52, 60; 508 NW2d 114 (1993). Even if logically relevant under MRE 401 and MRE 402, evidence may still be excluded under MRE 404 because MRE 404 “is a rule of legal relevance, defined as a rule limiting the use of evidence that is logically relevant.” Id. at 61-62. Legal relevance, as a limiting rule, concerns the purpose for which evidence is used. In particular, MRE 404(b)(1) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportu nity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
Therefore, evidence that is logically relevant under MRE 401 and MRE 402 may be excluded under MRE 404(b)(1) for lacking legal relevance if it does not have a proper purpose.
Other-acts evidence is only admissible under MRE 404(b)(1) when a party shows that it is (1) offered for a proper purpose, i.e., to prove something other than the defendant’s propensity to act in a certain way, (2) logically relevant, and (3) not unfairly prejudicial under MRE 403. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). “ ‘[I]f the proponent’s only theory of relevance is that the other act shows defendant’s inclination to wrongdoing in general to prove that the defendant committed the conduct in question, the evidence is not admissible.’ ” Jackson, 498 Mich at 258, quoting VanderVliet, 444 Mich at 63. In People v Mardlin, this Court further explained:
Evidence is inadmissible under [MRE 404(b)] only if it is relevant solely to the defendant’s character or criminal propensity. Stated another way, the rule is not exclusionary, but is inclusionary, because it provides a nonexhaus- tive list of reasons to properly admit evidence that may nonetheless also give rise to an inference about the defendant’s character. Any undue prejudice that arises because the evidence also unavoidably reflects the defendant’s character is then considered under the MRE 403 balancing test, which permits the court to exclude relevant evidence if its “probative value is substantially outweighed by the danger of unfair prejudice . .. MRE 403. Finally, upon request, the trial court may provide a limiting instruction to the jury under MRE 105 to specify that the jury may consider the evidence only for proper, noncharacter purposes. [People v Mardlin, 487 Mich 609, 615-616; 790 NW2d 607 (2010) (citations omitted).]
Accordingly, while MRE 404(b) is an inclusionary rule, it is still subject to the balancing test under MRE 403.
Without distinguishing logical relevance from legal relevance, the Court of Appeals agreed with the trial court. The Court simply concluded that the evidence in question “may be relevant to the jury’s understanding of the case,” Rock, 308 Mich App at 170, and is “relevant to [defendant’s] competency in treating [plaintiffs] injury,” id. at 170 n 8. The Court remanded the case to the trial court to conduct the MRE 403 balancing test. In doing so, the Court missed an essential step because it failed to first consider whether the evidence was legally relevant under MRE 404(b).
The proposed evidence passes the logical-relevance test under MRE 401 and 402 because it tends to demonstrate that defendant had a propensity for negligence in treating plaintiffs injuries, albeit in incidents that were causally unrelated to plaintiffs injury. The evidence of defendant’s shortcomings in other acts over the course of the surgery and postsurgical care tends to paint a picture of defendant’s general incompetence, making it appear more probable than not that defendant was negligent when providing the care that caused plaintiffs injury. However, this does not immediately call for the application of MRE 403. Before applying MRE 403, the trial court must consider whether the evidence was legally relevant and admissible under MRE 404(b) because the proposed evidence appears to be intended to show that defendant had a propensity to breach the standard of care when he treated plaintiff. This necessitates an inquiry into whether there was a proper purpose for admitting other-acts evidence as specified in the second sentence of MRE 404(b). Only if the trial court finds a proper purpose under MRE 404(b) should the trial court then apply MRE 403.
Accordingly, we vacate that portion of the Court of Appeals’ judgment analyzing this issue to the extent it concluded that evidence concerning the two alleged breaches of the standard of care that did not cause plaintiffs injury may be admissible. We remand this case to the trial court for it to perform the full MRE 404(b) analysis before engaging in an MRE 403 analysis to decide whether the evidence is admissible.
III. BOARD-CERTIFICATION REQUIREMENT
Defendant argues that an expert witness must be board-certified at the time she or he testifies in order to be qualified under MCL 600.2169(l)(a) to testify. The Court of Appeals rejected this argument, holding that “an expert. . . testifying against a board-certified defendant must have been board-certified in the same specialty as the defendant at the time of the occurrence that is the basis for the action.” Rock, 308 Mich App at 161. We agree and affirm that ruling.
Questions of statutory interpretation are reviewed de novo. Halloran v Bhan, 470 Mich 572, 576; 683 NW2d 129 (2004). A trial court’s rulings concerning the qualifications of proposed expert witnesses are reviewed for an abuse of discretion. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). A trial court does not abuse its discretion when its decision falls within the range of principled outcomes. Maldonado, 476 Mich at 388.
A medical malpractice plaintiff must establish that the medical care provided by the defendant fell below the standard of medical care applicable at the time the care was provided. MCL 600.2912a(l). Aphysician who testifies regarding the standard of care at issue must satisfy the requirements of MCL 600.2169(1), which provides:
In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.
(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
(c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) Active clinical practice as a general practitioner.
(ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony offered is licensed. [Emphasis added.]
Reading Subsection (1) and Subdivision (a) together evinces that there are up to three requirements for an expert witness giving testimony: a licensure requirement, a specialty requirement, and a board-certification requirement. With respect to the licensure requirement, the parties do not dispute that the expert must be licensed at the time of the testimony.
With respect to the specialty requirement, Subdivision (a) requires that the specialty of the proposed expert witness match that of the party against whom or on whose behalf the testimony is offered. Subdivision (a) explicitly requires that this match occur “at the time of the occurrence that is the basis for the action.” MCL 600.2169(1)(a). Subdivision (a) also makes it clear that the proposed expert witness must have the same board certification as the party against whom the testimony is offered. Halloran, 470 Mich at 574. The question is when the board certifications must match.
When construing statutory language, “[a]s far as possible, effect should be given to every phrase, clause, and word in the statute.” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). “The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended.” Id. “ [W]ords in a statute should not be construed in the void, but should be read together to harmonize [their] meaning....’” G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003) (citation omitted) (first alteration in original). On the basis of the plain language of the statute and contextual clues from the surrounding provisions, we conclude that both the specialty and board-certification requirements apply at the time of the occurrence that is the basis for the claim or action.
We start by examining the first sentence of Subdivision (a) of MCL 600.2169(1). We acknowledge that the general rules of grammar dictate that using the present-tense forms “is” and “specializes” means that the requirements relate to the present, which in this case would be the time of the testimony. However, in the first sentence of Subdivision (a), the present-tense verb “specializes” relates to “the time of the occurrence,” which is by definition an act that occurred in the past, that is, before the action is brought. In other words, the Legislature deviated from the general rules of grammar in MCL 600.2169(l)(a) by using the present tense when referring to an event that had already occurred.
The second sentence of Subdivision (a) of MCL 600.2169(1) begins with language that closely tracks that of the first sentence: “if the party against whom or on whose behalf the testimony is offered is a specialist.” MCL 600.2169(l)(a). This suggests that the board-certification requirement mirrors the specialty requirement and should be understood as an addition to the specialty requirement. Had the board-certification requirement been independent of and unrelated to the specialty requirement, there would have been no need to repeat some of this language, or to even put both requirements in the same subdivision.
Additionally, it is noteworthy that the Legislature chose the word “however” to connect the two sentences of Subdivision (a) of MCL 600.2169(1). In Halloran, this Court focused on the use of that word. In its consideration of an expert witness who had never had the same board certification as the defendant, the Court emphasized the use of the word “however,” which the Court defined as “in spite of that” and “on the other hand.” Halloran, 470 Mich at 578, citing Random House Webster’s College Dictionary (2d ed). The Halloran Court ultimately established that the board-certification requirement is an “additional requirement for expert witness testimony’ that applies “ ‘in spite of the specialty requirement. .. .” Halloran, 470 Mich at 578. This suggests that the board-certification requirement is complementary to, rather than independent from, the specialty requirement. Halloran’s reading of the word “however” thus supports reading the two sentences together so that both relate to the time of the occurrence that is the basis for the action.
Additional contextual clues support the interpretation that the board-certification requirement applies at the time of the occurrence. In examining the language of a statute, courts “consider both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Sun Valley, 460 Mich at 237, quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995). “Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context.” G C Timmis, 468 Mich at 421.
MCL 600.2169(l)(b) looks backward in time by referring to “the year immediately preceding the date of the occurrence.” MCL 600.2169(l)(c) likewise looks backward to “the year immediately preceding the date of the occurrence.” Given that Subdivisions (b) and (c) and the first sentence of Subdivision (a) of MCL 600.2169(1) refer back to the time of the occurrence, it is unlikely that the Legislature meant to refer to the time of the testimony with respect to the board-certification requirement only. It is difficult to conclude that the first sentence of Subdivision (a) and the entirety of Subdivisions (b) and (c) refer to the time of the occurrence, but that the second sentence of Subdivision (a), without any clear indication to the contrary, relates not to the time of the occurrence but to the time of the testimony. Inserting a “time of the testimony” requirement in the midst of several “time of the occurrence” requirements would be an illogical departure. Accordingly, the context of the statutory language makes it clear that the board-certification requirement applies at the time of the occurrence.
Comparing the current version of MCL 600.2169(l)(a) and the version in effect before its 1993 amendment also supports this conclusion. While the preamendment version did not have a board-certification requirement, it provided in relevant part that a person was not qualified to give expert testimony unless that person “[s]pecializes, or specialized at the time of the occurrence which is the basis for the action, in the same specialty... as the specialist who is the defendant in the medical malpractice action” When the Legislature amended MCL 600.2169(l)(a) in 1993, it replaced this phrase with “specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered.” See Rock, 308 Mich App at 163-164. This switch to only the present tense further confirms the Legislature’s intent to use the present tense to refer to a past occurrence. Had the Legislature intended to distinguish between the time of the occurrence and the time of the testimony within MCL 600.2169(l)(a), the first sentence would have employed the past tense “specialized” instead of the present tense “specializes” or “is a specialist,” while the second sentence would have employed the present tense. But that is not what the Legislature did here.
Because it is obvious from the first sentence of MCL 600.2169(l)(a) that the present-tense word “specializes” relates to “the time of the occurrence,” the Legislature was under no obligation to repeat the phrase “the time of the occurrence” in the second sentence. This Court explained that “the Legislature is not required to be overly repetitive in its choice of language.” Robinson v City of Lansing, 486 Mich 1, 16; 782 NW2d 171 (2010). Thus, it was unnecessary for the Legislature to repeat the phrase “the time of the occurrence” in every instance given that the context of MCL 600.2169(1)(a), (b), and (c) makes it clear that the time of the occurrence is the relevant point in time. To add the phrase “at the time of the occurrence that is the basis for the action” in every applicable instance would have created an unduly cumbersome statute.
Our interpretation of MCL 600.2169(l)(a) avoids the problems presented by situations in which an expert witness’s qualifications could not be ascertained until the date of the testimony. It is also consistent with the established relationship between MCL 600.2912d(l) and MCL 600.2169. “[U]nder MCL 600.2912d(1), a plaintiff is required to file with the complaint an affidavit of merit signed by an expert who the plaintiffs attorney reasonably believes meets the requirements of MCL 600.2169.” Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004) (some emphasis added). Requiring the board-certification requirement to apply at the time of the occurrence allows a plaintiff to ensure that an expert is qualified well in advance of the time of the testimony.
Accordingly, we affirm the judgment of the Court of Appeals on this issue and hold that the board-certification requirement applies at the time of the occurrence that is the basis for the action, not the time of testimony.
rv. CONCLUSION
We hold that the lower courts erred by concluding that the evidence of alleged violations of the standard of care that did not cause plaintiffs injury may be admissible without first applying the appropriate evaluation under MRE 404(b). We also hold that the board-certification requirement relates to the time of the alleged malpractice rather than the time that testimony is taken, given how the statute is structured and how the present tense is used in a nonstandard way in the specialty requirement. Therefore, we affirm the judgment of the Court of Appeals in part, vacate it in part, and remand the case to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Young, C.J., and Markman, Zahra, McCormack, Viviano, and Larsen, JJ., concurred with Bernstein, J.
The other defendant in this case is Crocker’s professional corporation, K. Thomas Crocker, D.O., P.C. For convenience we will use the singular term “defendant” to refer to Crocker individually and, as needed, Crocker and the corporation jointly.
Dr. Viviano is not related to Justice VIVIANO.
Because the parties and the Court of Appeals characterized the alleged violations related to the length of the plate and the number of screws as a single allegation, we do the same and treat them together as one of the two alleged breaches of the standard of care involved in the first issue in this case.
The Court also rejected defendant’s challenge to the trial court’s grant of plaintiffs motion in limine, barring defendant from presenting evidence that plaintiff was receiving no-fault wage-loss benefits to show a motive to malinger. Rock, 308 Mich App at 171-174. Defendant does not raise this issue before us, and we will not review it.
Although many of this Court’s rulings concerning MRE 404 happen to be criminal cases, MRE 404 is applicable in civil cases as well as criminal cases. See Lewis v LeGrow, 258 Mich App 175, 207; 670 NW2d 675 (2003) (noting the 1991 amendment of MRE 404(b) to replace the phrase “the crime charged” with “the conduct at issue in the case”). See also People v Jackson, 498 Mich 246, 262 n 5; 869 NW2d 253 (2015) (noting that the phrase “conduct at issue” clarifies “that ‘[t]he rule applies in civil cases even though it is used more often in criminal cases’ ”) (citation omitted) (alteration in original). Accordingly, we consider criminal rulings regarding MRE 404(b) for guidance in applying the rule in the present civil case.
See Huddleston v United States, 485 US 681, 687; 108 S Ct 1496; 99 L Ed 2d 771 (1988) (“Generally, [FRE 404 through 412] do not flatly prohibit the introduction of such evidence but instead limit the purpose for which it may be introduced. [FRE] 404(b) [which is equivalent to MRE 404(b)], for example, protects against the introduction of extrinsic act evidence when that evidence is offered solely to prove character.”).
We also note that courts have barred propensity evidence in the context of medical malpractice. See, e.g., Wlosinski v Cohn, 269 Mich App 303, 312; 713 NW2d 16 (2005) (opinion by O’Connell, P.J.) (“Propensity evidence is barred because it diverts a jury’s attention from the facts of the case being tried and focuses it on the probability that the defendant, who has made so many mistakes before, made one again.”).
Under MRE 403, 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.”
The Court of Appeals did not explicitly reject the trial court’s ruling that the proposed evidence might be admissible as part of the res gestae of the malpractice claim. We take this opportunity to highlight that this Court made it clear in Jackson that MRE 404(b)(1) does not have a res gestae exception. Jackson, 498 Mich at 274. Accordingly, there is no res gestae exception to be considered here.
Defendant contends that “the time of trial” is the appropriate point of reference. Because MCL 600.2169 does not limit its application to in-trial testimony, however, we consider the issue in terms of “the time of the testimony instead.
Construing the board-certification requirement as applying at the time of the occurrence is also consistent with Woodard. In Woodard, this Court commented on the requirement that the proposed expert witness he qualified to testify about what the relevant standard of care was when the alleged malpractice occurred:
Because the plaintiffs expert will be providing expert testimony on the appropriate or relevant standard of practice or care, not an inappropriate or irrelevant standard of practice or care, it follows that the plaintiffs expert witness must match the one most relevant standard of practice or care—the specialty engaged in by the defendant physician during the course of the alleged malpractice, and, if the defendant physician is board certified in that specialty, the plaintiffs expert must also be board certified in that specialty. [Woodward, 476 Mich at 560.]
This suggests that the board-certification requirement also applies at the time of the alleged malpractice. Despite the fact that the central issue in Woodard did not involve the present issue, this Court’s approach in Woodard lends support to our rejection of defendant’s interpretation.
Indeed, the Legislature could very well have chosen to put the board-certification requirement in MCL 600.2169(1) itself, along with the licensure requirement. However, that the specialty and board-certification requirements are both included in the same part of the statute—a subdivision that is separate from the part that contains the licensure requirement—is likely a reflection of the Legislature’s recognition that a board certification is much more similar to a specialization than it is to licensure as a physician.
MCL 600.2169(1)(a), as added by 1986 PA 178.
MCL 600.2169(1)(a), as amended by 1993 PA 78.
In addition, this interpretation prevents gamesmanship, such as a defendant-physician becoming board-certified shortly before trial and disqualifying an expert witness who is not board-certified, thereby depriving the plaintiff of his or her chosen expert. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Jackson Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. | [
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Leave to appeal denied at 499 Mich 881. | [
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McCormack, J.
(dissenting). I respectfully dissent from this Court’s order denying leave to appeal for the reasons identified in my dissenting statement in Mabry v Mabry, 499 Mich 997 (2016).
Bernstein, J., joined the statement of McCormack, J. | [
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Leave to appeal denied at 499 Mich 855. | [
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Makkman, J.
(dissenting). I respectfully dissent from this Court’s order denying leave to appeal. Because the issues raised here are, in my judgment, of considerable constitutional significance as to matters affecting the tax policy and procedures, the fiscal and business environments, and the jurisprudence of this state, I believe they ought to be heard by the highest court of this state and would thus grant leave to appeal.
In 1970, Michigan joined the Multistate Tax Compact (the Compact) when the Legislature enacted MCL 205.581. See 1969 PA 243, effective July 1, 1970. Article III(l) of the Compact provided that certain multistate taxpayers may elect to apportion income to Michigan for tax purposes “in the manner provided by the laws of such state,” i.e., the laws of Michigan, or else “in accordance with Article IV.” MCL 205.581, art III(l). Article IV provided for an apportionment formula based on property, payroll, and sales factors. MCL 205.581, art IV(9). Effective January 1,2008, the Legislature enacted the Michigan Business Tax Act (BTA), MCL 208.1101 et seq., 2007 PA 36, which provided that “each tax base established under this act shall be apportioned in accordance with this chapter.” MCL 208.1301(1). Finally, MCL 208.1301(2) of the BTA provided for an apportionment formula based solely on a sales factor.
At issue in IBM v Dep’t of Treasury, 496 Mich 642 (2014), was whether the plaintiff multistate taxpayer could elect to use the Compact’s three-factor apportionment formula for its 2008 Michigan taxes or whether, as the defendant Department of Treasury argued, it was required to use the BTA’s sales-factor-only apportionment formula. This Court ruled in IBM that the taxpayer could elect to use the Compact’s apportionment formula. The lead opinion stated that “the Legislature had [not] repealed the Compact’s election provision by implication when it enacted the BTA,” id. at 645 (opinion by Viviano, J.), while the concurring opinion left that question open, id. at 668 (Zahra, J., concurring). In response, the Legislature enacted 2014 PA 282, which repealed the Compact “retroactively and effective beginning January 1, 2008.” 2014 PA 282, enacting § 1. As a consequence, 2014 PA 282 retroactively repealed the Compact election provision beginning that date as well. Several multistate taxpayers challenged the constitutionality of 2014 PA 282, but the Court of Claims and the Court of Appeals upheld the statute against those challenges. Gillette Commercial Operations North America & Subsidiaries v Dep’t of Treasury, 312 Mich App 394, 401 (2015). In my judgment, the following four constitutional questions that are raised in the taxpayers’ various applications for leave to appeal warrant thorough consideration by this Court by a grant of leave to appeal:
First, is 2014 PA 282 consistent with federal due-process protections, US Const, Ams V and XIV, given that the retroactivity period here of six years and nine months arguably exceeds “a modest period of retroactivity,” United States v Carlton, 512 US 26, 32 (1994), and that one justice has observed in this same regard in a frequently cited statement that “[a] period of retroactivity longer than the year preceding the legislative session in which the law was enacted would raise . .. serious constitutional questions,” id. at 38 (O’Connor, J., concurring in the judgment)?
Second, is 2014 PA 282 consistent with the Michigan Due Process Clause, Const 1963, art 1, § 17, when that clause is worded differently than the federal Due Process Clause and we have held that the state provision may afford heightened protections, Delta Charter Twp v Dinolfo, 419 Mich 253, 276 n 7 (1984), because “while the Federal supreme court is the final judge of violations of the Federal Constitution, the decision of the Supreme Court of this State is final on the question of whether or not a State statute conflicts with the State Constitution,” People v Victor, 287 Mich 506, 514 (1939)?
Third, does 2014 PA 282 violate either the federal or state prohibitions against the impairment of contracts, US Const, art I, § 10, cl 1; Const 1963, art 1, § 10, because the Compact is a reciprocal and binding interstate compact between the signatory states with respect to which a retroactive withdrawal from the Compact amounts to an unconstitutional impairment of that contract, see Gillette Co v Franchise Tax Bd, 62 Cal 4th 468, 477-479 (2015)?
Fourth, does 2014 PA 282 violate the Separation of Powers Clause, Const 1963, art 3, § 2, because by prescribing the outcomes of those cases that were held in abeyance pending IBM, as well as IBM itself, the Legislature has impinged on the judicial power, Const 1963, art 6, § 1, and contravened the principle that “the Legislature cannot dictate to the courts what their judgments shall be, or set aside or alter such judgments after they have been rendered,” People ex rel Sutherland v Governor, 29 Mich 320, 325-326 (1874); cf. Plaut v Spendthrift Farm, Inc, 514 US 211, 217-218 (1995) (“Congress has exceeded its authority by requiring the federal courts to exercise ‘[t]he judicial Power of the United States,’ U. S. Const., Art. Ill, § 1, in a manner repugnant to the text, structure, and traditions of Article III.”)?
As the United States Supreme Court has recognized, “[T]he power to tax involves the power to destroy!.]” M ‘Culloch v Maryland, 17 US (4 Wheat) 316, 431 (1819). This power must be kept subject to proper constitutional limits, particularly when, as here, a heightened tax burden has been imposed not on future business activities, but on business activities planned and undertaken many years ago. While I do not yet have any firm belief regarding the constitutionality of 2014 PA 282,1 do have a firm belief that before retroactive tax burdens such as those set forth in this law are imposed, the arguments of affected taxpayers deserve consideration by the highest court of this state. Accordingly, I respectfully dissent and would grant leave to appeal.
Viviano, J., joined the statement of Makkman, J. | [
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BERNSTEIN, J.
At issue in this case is whether the term “police officer” in MCL 750.81d(7)(b)(i) encompasses reserve police officers. We reverse the Court of Appeals’ ruling that reserve police officers are not police officers for purposes of MCL 750.81d(7)(b)(i), and we remand to the Court of Appeals to address whether the district court correctly ruled that the reserve police officer in this case lacked the authority to conduct a stop of defendant.
I. FACTS AND PROCEDURAL HISTORY
In the early morning hours of May 5, 2014, a ruckus at a Brighton bar resulted in a call to the police. Two officers from the Brighton Police Department responded: Christopher Parks, a full-time police officer, and Douglas Roberts, a reserve police officer. At the time of the incident, Roberts had worked as a reserve police officer for six years. Roberts had been sworn in as a reserve police officer after a 16-week police training program. He was assigned a uniform, a patrol car, and a gun. Roberts worked full 12-hour shifts along side a full-time police officer about two or three times a month, filling in for officers on sick leave or vacation. He was not certified by the Michigan Commission on Law Enforcement Standards (MCOLES), which is required of full-time police officers under the MCOLES Act, MCL 28.601 et seq.
At the preliminary examination, Roberts testified that he and Parks arrived at the bar in a fully marked police vehicle. Roberts was dressed in a uniform, which Roberts described as “[b]lue pants, blue police shirt marked on the sleeves, and a[n] outside carrier vest that has [a] badge, name tag and any insignias on it.” Roberts also testified that he was carrying a weapon. Roberts recalled that as the two officers approached a small crowd outside the bar, a woman informed Roberts that the troublemaker was her intoxicated husband, defendant Ryan Scott Feeley. Roberts further testified that he approached defendant and asked him to stand aside, at which point defendant ran away from Roberts. Roberts chased defendant, yelling “police officer, stop.” Roberts added that he repeated his command after running about a block, and defendant slowed down. According to Roberts, defendant “turned and squared off,” swore at Roberts, and “took his right arm and reached behind his back.” Roberts testified that in fear for his safety, he drew his gun and ordered defendant to the ground.
Defendant was arrested and charged with resisting and obstructing a police officer under MCL 750.81d. Defendant objected to the prosecution’s request for a bindover, arguing that (1) Roberts did not have an articulable suspicion for stopping defendant in the first place, and (2) defendant could not be held criminally liable for resisting and obstructing under MCL 750.81d because Eoberts, being a reserve police officer, was not a “police officer” within the meaning of that statute.
On August 29, 2014, the district court issued an opinion and order denying the prosecution’s request for a bindover. People v Feeley, opinion and order of the Livingston County Trial Court-District Court Division, issued August 29, 2014 (Case No. 14-1183 FY). The district court determined that “Eoberts was not a police officer as provided by statutory language, legislative intent, training requirements, proper oath administration, and written instrument requirements.” Id. at 5. The district court also concluded sua sponte that the stop of defendant was unlawful and invalid because Eoberts “lacked the authority to make a stop of a person.” Id. at 8. The prosecution appealed in the circuit court. On January 13, 2015, the circuit court denied the prosecution’s application for leave to appeal for lack of merit in the grounds presented.
The prosecution appealed in the Court of Appeals. On September 15, 2015, the Court of Appeals affirmed the district court in a split, published opinion. People v Feeley, 312 Mich App 320; 876 NW2d 847 (2015). In affirming the district court’s denial of the prosecution’s bindover request, the Court of Appeals majority concluded that a reserve police officer did not fall within the scope of a “police officer” as used in MCL 750.81d(7)(b)(¿). Pointing to the Legislature’s explicit mention of other types of law enforcement personnel, the majority assigned great significance to the omission of the term “reserve police officer” from the statute’s enumerated list. To the contrary, the dissent found no significance in the omission of the term “reserve police officer” from MCL 750.81d(7)(b) and would have concluded that Roberts was a police officer of a political subdivision of this state, namely the City of Brighton. The Court of Appeals did not address the district court’s ruling that Roberts lacked the authority to stop defendant.
The prosecution appealed, arguing that the term “police officer” in MCL 750.81d(7)(b)(¿) encompasses reserve police officers. This Court ordered oral argument on whether to grant the application or take other action. We directed the parties to address whether the term “police officer” in MCL 750.81d(7)(b)(i) encompasses reserve police officers. People v Feeley, 498 Mich 969 (2016).
II. STANDARD OF REVIEW
A district court’s decision regarding a bindover is reviewed for an abuse of discretion, and “[a court] necessarily abuses its discretion when it makes an error of law.” People v Waterstone, 296 Mich App 121, 131-132; 818 NW2d 432 (2012). Statutory construction is a question of law that is reviewed de novo. People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).
III. ANALYSIS AND APPLICATION
In reviewing questions of statutory construction, our purpose is to discern and give effect to the Legislature’s intent. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). We begin by examining the plain language of the statute. Id. “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. No further judicial construction is required or permitted.” Id. “The law is not properly read as a whole when its words and provisions are isolated and given meanings that are independent of the rest of its provisions.” Lansing Mayor v Pub Serv Comm, 470 Mich 154, 168; 680 NW2d 840 (2004).
The resisting and obstructing statute, MCL 750.81d, provides in relevant part:
(1) Except as provided in subsections (2), (3), and (4), an individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.
(7) As used in this section:
(a) “Obstruct” includes the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command.
(b) “Person” means any of the following:
(i) A police officer of this state or of a political subdivision of this state including, but not limited to, a motor carrier officer or capítol security officer of the department of state police.
(ii) A police officer of a junior college, college, or university who is authorized by the governing board of that junior college, college, or university to enforce state law and the rules and ordinances of that junior college, college, or university.
(in) A conservation officer of the department of natural resources or the department of environmental quality.
(iv) A conservation officer of the United States department of the interior.
(v) A sheriff or deputy sheriff.
(vi) A constable.
(vii) A peace officer of a duly authorized police agency of the United States, including, but not limited to, an agent of the secret service or department of justice.
(viii) A firefighter.
(ix) Any emergency medical service personnel described in section 20950 of the public health code, 1978 PA 368, MCL 333.20950.
(x) An individual engaged in a search and rescue operation as that term is defined in section 50c. [Emphasis added.]
Put simply, an individual is guilty of resisting or obstructing if he “resists [or] obstructs ... a person who the individual knows or has reason to know is performing his or her duties . . . .” MCL 750.81d(l). To “obstruct” includes “a knowing failure to comply with a lawful command.” MCL 750.81d(7)(a). A “person” in this context includes “[a] police officer of this state or of a political subdivision of this state. . . .” MCL 750.81d(7)(b)(i).
Defendant claims that a reserve police officer is not a “police officer” under MCL 750.81d(7)(b)(i). We disagree. The plain language of the statute does not explicitly distinguish reserve police officers from police officers, nor does the statute provide any indication that the two should be treated differently. Rather, we find that, for purposes of MCL 750.81d(7)(b)(¿), reserve police officers are a subset of police officers.
First, we note that the statute does not define the term “police officer.” “All words and phrases shall be construed and understood according to the common and approved usage of the language [.] ” MCL 8.3a. “If a statute does not define a word, it is appropriate to consult dictionary definitions to determine the plain and ordinary meaning of the word.” Epps v 4 Quarters Restoration LLC, 498 Mich 518, 529; 872 NW2d 412 (2015), citing Allison v AEW Capital Mgt, LLP, 481 Mich 419, 427; 751 NW2d 8 (2008). The dictionary definition of the term “police officer” supports the interpretation that reserve police officers are police officers under MCL 750.81d(7)(b)(¿). Merriam-Webster’s Collegiate Dictionary (11th ed) defines “police officer” as “a member of a police force,” and the term “police force” as “a body of trained officers entrusted by a government with maintenance of public peace and order, enforcement of laws, and prevention and detection of crime.” This suggests that a police officer is a member who is (1) trained and (2) entrusted by a government to (3) maintain public peace and order, enforce laws, and prevent and detect crime. Roberts was trained in a 16-week police training program. After completing the training program, Roberts was sworn in as a reserve police officer. As part of his oath, he pledged to serve the people of the City of Brighton and to uphold the United States Constitution and the laws of the state and the city. After being sworn in, the Brighton Police Department allowed Roberts to wear a police uniform, along with a badge and insignias, and to carry a weapon. The City of Brighton entrusted Roberts to work alongside a full-time officer for the common goals of maintaining peace and order, enforcing laws, and preventing and detecting crime. Thus, he is properly considered a police officer under the common meaning of the term.
In addition, the Legislature’s use of the phrase “including, but not limited to” in MCL 750.81d(7)(b)(i) indicates that it intended an expansive and inclusive reading of the term “police officer.” We have held that this particular phrase is not “one of limitation,” but is instead meant to be illustrative and “purposefully capable of enlargement.” In re Forfeiture of $5,264, 432 Mich 242, 255; 439 NW2d 246 (1989), citing Skillman v Abruzzo, 352 Mich 29, 33-34; 88 NW2d 420 (1958). Accordingly, by using this phrase, the Legislature expressly indicated its intention not to limit a definition to listed examples. This interpretation undermines the Court of Appeals’ reliance on the doctrine of expressio unius est exclusio alterius, which provides that “the express mention in a statute of one thing implies the exclusion of other similar things.” People v Jahner, 433 Mich 490, 500 n 3; 446 NW2d 151 (1989). While MCL 750.81d(7)(b) does not expressly mention reserve police officers in its enumerated list of “[p]er- son[s],” the plainly stated breadth of the definition of “police officer” in MCL 750.81d(7)(b)(i) eliminates any need to do so or any implication that this omission should be read as an intended exclusion.
Defendant’s argument that reserve police officers should be treated differently than regular police officers because of certain factual distinctions also falls short. We acknowledge that Eoberts, a reserve officer, differs from regular full-time officers in the following respects: (1) he is not a full-time employee, (2) he is required to be accompanied by a full-time officer, and (3) he is not certified under MCOLES. However, these distinctions are not recognized by the plain language of the statute and do not form a sufficient basis to exclude reserve police officers like Eoberts from the scope of the term “police officer” in MCL 750.81d. We do not read requirements into a statute where none appear in the plain language and the statute is unambiguous. See Sun Valley, 460 Mich at 236. “It is not within the province of this Court to read therein a mandate that the [L]egislature has not seen fit to incorporate.” Jones v Grand Ledge Pub Sch, 349 Mich 1, 11; 84 NW2d 327 (1957). MCL 750.81d(7)(b)(i) does not define a police officer by referring to a particular work arrangement or level of certification. No reference is made in the statute regarding whether a police officer must work full-time, must be capable of working individually, or must be MCOLES-certified. As previously noted, the statute does not define the term “police officer” at all, and the commonly understood meaning of the term contains no such requirements. Because the plain language of the statute is unambiguous, we decline to read these requirements into it.
The Legislature has demonstrated its ability to adopt explicit restrictions to the definition of a “police officer” when such restrictions are intended. For example, the MCOLES Act itself limits its definition of “police officer” to “[a] regularly employed member of a law enforcement agency authorized and established by law, including common law, who is responsible for the prevention and detection of crime and the enforcement of the general criminal laws of this state.” MCL 28.602(Z)(¿) (emphasis added). This language indicates that the Legislature is capable of limiting the definition of a police officer based on employment status when such a limitation is intended; the Legislature chose, however, to impose no such restriction in MCL 750.81d(7)(b).
The requirement that a reserve police officer must be accompanied by a full-time officer might be taken to imply that a reserve police officer’s independent authority to give a lawful command is limited absent the authority provided by the accompaniment of a full-time officer. However, even if such a limitation exists, it does not exclude reserve officers from being considered police officers within the meaning of the statute. MCL 750.81d(7)(b)(¿) is silent with regard to the nature of a police officer’s authority or the restrictions imposed on an officer’s performance of his or her duties. Thus, there is no basis to read into MCL 750.8Id a requirement that independent authority to give a lawful command to stop must exist as a prerequisite to being considered a police officer. Moreover, the explicit inclusion of motor carrier officers and capitol security officers in MCL 750.81d(7)(b)(¿) suggests that individuals with limited authority may still be considered police officers. Motor carrier officers have only the authority to “enforc[e] the general laws of this state as they pertain to commercial vehicles.” MCL 28.6d(l). The authority of capitol security officers is limited to “the protection of state owned or leased, property or facili ties, in the city of Lansing, and in Windsor township of Eaton county.” MCL 28.6c(l). As MCL 750.81d(7)(b)(¿) makes clear, however, these officers nonetheless constitute “police officer [s]” for purposes of the resisting and obstructing statute, despite the limitations on the scope of their authority. We see no reason why any purported limitation on Roberts’s authority should lead to a different result. Whether a full-time officer was present when Roberts commanded that defendant stop simply does not speak to whether Roberts was a “police officer” in the first place.
It is similarly clear that the Legislature did not intend to limit the term “police officer” in MCL 750.81d(7)(b)(i) to those officers required to possess MCOLES certification. Again, the Legislature has repeatedly shown that it knows how to impose such a requirement when it is intended. For instance, MCL 28.421(l)(h) defines “peace officer” as
an individual who is employed as a law enforcement officer, as that term is defined under section 2 of the commission on law enforcement standards act,. . . MCL 28.602, by this state or another state, a political subdivision of this state or another state, or the United States, and who is required to carry a firearm in the course of his or her duties as a law enforcement officer. [Emphasis added.]
Similarly, the definition of “law enforcement official” in MCL 763.7(c)(i) includes “[a] police officer of this state or a political subdivision of this state as defined in section 2 of the commission on law enforcement standards act, . . . MCL 28.602.” MCL 750.81d(7)(b), however, contains no such language or reference to the MCOLES Act. To the contrary, the only officers expressly identified as “police officer [s]” under MCL 750.81d(7)(b)(i)—motor carrier officers and capitol se curity officers—are not required to be certified under the MCOLES Act. Thus, there is no basis to conclude that the Legislature intended to incorporate the MCOLES Act’s definitions or requirements into the resisting and obstructing statute.
The Legislature’s reference in MCL 750.81d(7)(b) to definitions from other statutes further supports this conclusion. MCL 750.81d(7)(b)(ix) refers to “[a]ny emergency medical service personnel described in . .. MCL 333.20950,” and MCL 750.81d(7)(b)(x) refers to “[a]n individual engaged in a search and rescue operation as that term is defined in [MCL 750.50c].” Defendant urges us to likewise define “police officer” under MCL 750.81d(7)(b)(¿) according to the terms of the MCOLES Act, which expressly exclude “a member of... a police auxiliary temporarily performing his or her duty under the direction of the sheriff or police department[.]” See MCL 28.609(1). Had the Legislature intended to incorporate this definition, it could have done so simply by referring to the MCOLES Act in the text of MCL 750.81d(7)(b)(i). It did not.
Therefore, the plain language of MCL 750.81d(7)(b)(¿) dictates that, whatever distinctions may exist between a full-time police officer and a reserve police officer such as Roberts, both are considered “[a] police officer” as that term is used in MCL 750.81d(7)(b)(i). This interpretation is consistent with the legislative purpose behind the enactment of MCL 750.81d: “to protect persons in all professions connected to law enforcement instead of only peace officers.” People v Moreno, 491 Mich 38, 53 n 39; 814 NW2d 624 (2012). That a wide variety of professions is represented on the list serves to reflect this goal. See MCL 750.81d(7)(b)(i)-(x) (providing that protected persons include state and local police officers, college police officers, conservation officers, sheriffs or deputy-sheriffs, constables, secret service agents, Department of Justice agents, firefighters, emergency medical service personnel, and individuals engaged in search and rescue operations). Acknowledging that reserve police officers belong in this group of protected professionals is consistent with the aforementioned legislative purpose.
Defendant further asserts that the resisting and obstructing statute and the MCOLES Act should be read in pari materia. Defendant argues that in applying this doctrine, the narrower definition of police officer used in the MCOLES Act should be employed when parsing MCL 750.81d(7)(b)(i) to conclude that the term “police officer” does not include reserve police officers. We do not find this argument convincing.
As we explained in People v Mazur, 497 Mich 302, 313; 872 NW2d 201 (2015):
Under the doctrine [of in pari materia], statutes that relate to the same subject or that share a common purpose should, if possible, be read together to create a harmonious body of law. An act that incidentally refers to the same subject is not in pari materia if its scope and aim are distinct and unconnected. [Citation omitted.]
In this case, the resisting and obstructing statute and the MCOLES Act do not deal with the “same subject or share a common purpose.” Id. The resisting and obstructing statute is designed to “protect officers from physical harm.” People v Vasquez, 465 Mich 83, 92; 631 NW2d 711 (2001) (opinion by MARKMAN, J.). Even more broadly, the Penal Code, which encompasses the resisting and obstructing statute, purports “to . . . define crimes and prescribe the penalties and remedies . . . .” MCL 750.1. In contrast, the MCOLES Act is:
An Act to provide for the creation of the commission on law enforcement standards; to prescribe its membership, powers, and duties; to prescribe the reporting responsibilities of certain state and local agencies; to provide for additional costs in criminal cases; to provide for the establishment of the law enforcement officers training fund; and to provide for disbursement of allocations from the law enforcement officers training fund to local agencies of government participating in a police training program. [MCL 28.601.]
These differences advise against reading the statutes in pari materia.
The MCOLES Act itself also suggests that its definitions cannot be exported to other contexts, because the definitions in MCL 28.602 are introduced with the phrase, “[a]s used in this act[.]” MCL 28.602. When statutes do not deal with the same subject or share a common purpose and the Legislature has chosen to specifically limit the applicability of a statutory definition, the doctrine of in pari materia is inapplicable. See Mazur, 497 Mich at 314-315.
IV. CONCLUSION
We conclude that the Court of Appeals erred by finding that the term “police officer” in MCL 750.81d(7)(b)(i) does not encompass reserve police officers. Therefore, we reverse the Court of Appeals’ holding regarding the scope of the term “police officer.” Because the Court of Appeals did not address whether the district court correctly concluded that [Roberts lacked the authority to conduct a stop of defendant, we remand this case to the Court of Appeals to address that issue, including whether defendant knew or had reason to know that Roberts was performing his duties at the time of defendant’s charged conduct, and, if so, whether Roberts’s command to stop was lawful. We do not retain jurisdiction.
Young, C.J., and Markman, zahra, McCormack, Viviano, and Larsen, JJ., concurred with Bernstein, J.
Treating Roberts as a “special deputy” under MCL 51.70, which requires an instrument in writing signed by the Sheriff, the district court found that the lack of such a written instrument precluded Roberts from making a stop of an individual. Id. We find this analysis puzzling as Roberts is a member of the Brighton Police Department rather than the Livingston County Sheriff Department. However, we recognize that there may be other grounds on which to reach the conclusion that Roberts lacked the authority to conduct a stop of defendant.
“Obstruct” is the only verb defined in MCL 750.81d(7). None of the other verbs used in MCL 750.81d(l) to describe punishable conduct are defined in MCL 750.81d.
Roberts testified that the procedure of being sworn in to serve as a reserve police officer in Brighton was similar to the way he was previously sworn in to serve in the Hamburg Township Police Department.
We do not find it necessary to turn to People v McRae, 469 Mich 704; 678 NW2d 425 (2004), or Bitterman v Village of Oakley, 309 Mich App 53; 868 NW2d 642 (2015), which were addressed by the Court of Appeals, for our interpretation of the term “police officer” under MCL 750.81d(7)(b)(¿) as including reserve police officers. Those cases addressed the status of reserve police officers in contexts different from the one at issue. McRae considered a reserve officer’s status as a “state actor” for purposes of a defendant’s Sixth Amendment right to counsel, McRae, 469 Mich at 718, and Bitterman considered the status of reserve police officers for purposes of a Freedom of Information Act exemption, Bitterman, 309 Mich App at 70.
“[A]n individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony . . . .” MCL 750.81d(l) (emphasis added).
“ ‘Obstruct’ includes the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command.” MCL 750.81d(7)(a) (emphasis added). | [
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Leave to appeal denied at 499 Mich 917. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Kalkaska Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. | [
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Leave to appeal denied at 498 Mich 872. | [
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The parties shall file supplemental briefs within 42 days of the date of this order addressing: (1) whether the consent judgment amounts to a “judgment or adjudication . .. based on a determination” of the insured’s conduct [emphasis added]; and, if so, (2) whether it was “a determination that acts of fraud or dishonesty were committed by the ‘insured.’ ” The parties should not submit mere restatements of their application papers. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Berrien Circuit Court for consideration of the defendant’s issue regarding the assessment of court costs. We do not retain jurisdiction. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals, and we remand this case to the Wayne Circuit Court for the court to consider whether it has subject matter jurisdiction to hear the plaintiffs’ claims pursuant to MCL 418.131(1) and MCL 418.827(1). | [
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BERNSTEIN, J.
This case requires the Court to address whether plaintiffs tort claims against individual principals of a law firm fall within the scope of an arbitration clause that mandates arbitration for any dispute between the firm and a former principal. Generally speaking, a company may only act through its agents. In this case, plaintiff, a former principal, challenges actions the individual defendants performed in their capacities as agents carrying out the business of the firm. Therefore, this is a dispute between the firm and a former principal that falls within the scope of the arbitration clause and is subject to binding arbitration.
Accordingly, we reverse that part of the Court of Appeals’ opinion holding that this matter was not subject to arbitration. We vacate the remaining portion of the Court of Appeals’ opinion, which relates to plaintiffs motion for partial summary disposition, and we remand this case to the trial court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
In 1993, plaintiff Dean Altobelli began working as an attorney for Miller, Canfield, Paddock and Stone, PLC (the Firm), a professional limited liability company formed under the Michigan Limited Liability Company Act (MLLCA), MCL 450.4101 et seq. Upon joining the Firm, plaintiff signed the “Miller Canfield Operating Agreement” (Operating Agreement), a document governing the Firm’s internal affairs. The Operating Agreement provides that members of the Firm are referred to as “principals.” All principals sign the Operating Agreement. The introductory section of the Operating Agreement states that the document “by and between the [Principals] . . . evidences the following agreement between them[.]” In a subsequent section, the principals further acknowledge that the “covenants and agreements herein contained shall inure to the benefit of and be binding upon the parties hereto [.] ”
The Operating Agreement delegates particular responsibilities and powers to certain individuals within the Firm. A principal must devote “his or her full time and best efforts to the success of the Firm except as otherwise approved in writing by the CEO with the approval of the Managing Directors.” Principals may “voluntarily withdraw from the Firm at any time” and shall involuntarily withdraw in the event of a two-thirds vote of the senior principals. Senior principals are principals who have been granted equity ownership in the Firm. Five senior principals, called the “managing directors,” are invested with “[s]ole, full and complete power and authority to manage . . . the Firm. . . Managing directors have the authority to designate a Chief Executive Officer (CEO), who has, “with binding effect on the Managing Directors, the power and authority of the Managing Directors with respect to the day-to-day administration of the business and affairs of the Firm.”
The Operating Agreement also contains a mandatory arbitration agreement:
3.6 Alternative Dispute Resolution: Mandatory Arbitration. Any dispute, controversy or claim (hereinafter “Dispute”) between the Firm or the Partnership and any current or former Principal or Principals of the Firm or current or former partner or partners of the Partnership (collectively referred to as the “Parties”) of any kind or nature whatsoever (including, without limitation, any dispute!,] controversy or claim regarding step placement, or compensation, or the payment or non-payment of any bonus, the amount or change in amount of any bonus) shall be solely and conclusively resolved according to the following procedure:
(a) In the event of a Dispute, the Parties agree to first try in good faith to settle the dispute directly. If the parties are unable to resolve the dispute, they shall submit the dispute to third party neutral facilitation in accordance with the mediation rules of the American Arbitration Association (“Mediation”). If the Dispute is not resolved by a signed Settlement Agreement within ninety (90) days of a written request for Mediation given to one Party by the other and identifying the Dispute, the Dispute shall be settled by binding arbitration (“Arbitration”) in accordance with the internal laws of the State of Michigan. The Arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association except as specifically provided herein. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. There shall be three (3) arbitrators; one of whom shall be appointed by the Firm, one by the Principal(s) and/or partner(s) (as applicable) and the third of whom shall be appointed by the first two arbitrators. The hearing shall be held in the Detroit metropolitan area. [Emphasis added.]
By January 2006, plaintiff had become a senior principal at the Firm. However, in late May or early June 2010, plaintiff decided he wanted to pursue a new opportunity as an assistant coach for the University of Alabama football team. Plaintiff proposed a 7- to 12-month leave of absence from the Firm to defendant Michael Hartmann, the Firm’s CEO, and defendant Michael Coakley, who was the head of the Firm’s litigation group but was not a managing director. Plaintiff suggested that the Firm permit him to maintain his ownership interest and return to the Firm as a senior principal any time before June 1, 2011.
Plaintiff avers that Hartmann initially promised plaintiff that he could spend as much time at the University of Alabama as he wanted and still receive certain allocated income from his clients. Hartmann disputes this, claiming that although he told plaintiff that he could “probably” return to the Firm, plaintiff knew Hartmann had no authority to make a formal commitment. Plaintiff contends that, in reliance on Hartmann’s assurance, he moved to finalize his agreement with the University of Alabama in June 2010. Plaintiff claims he also spent many hours preserving his clients and business for the Firm.
Plaintiff alleges that Hartmann then withdrew his support, suddenly rejecting the proposed leave of ab sence and instead suggesting that plaintiff voluntarily withdraw from the Firm without any assurance that he would be reinstated. In response, on July 10, 2010, plaintiff sent an e-mail to the managing directors seeking approval of the job opportunity with the University of Alabama and an exception to the section of the Operating Agreement obligating a principal to devote his or her full time to the Firm. Plaintiff claims he informed the managing directors that he had no plans to relinquish his principal status or compensation. On July 20, 2010, plaintiff submitted a statement to defendant Coakley detailing his past and projected contributions to the Firm. Plaintiff asserts that Hart-mann informed plaintiff the next day that the managing directors had decided to terminate his equity ownership, effective July 31, 2010. In an e-mail response, plaintiff demanded a vote of the principals, asserting that the managing directors lacked the authority to terminate him under the Operating Agreement. On July 22, Hartmann replied: “I did not say the Firm had terminated your position. I told you that since you had voluntarily accepted a full time position at Alabama and had already started there, the Firm will consider you to have withdrawn from the partnership as of July 31, 2010.” Plaintiff disputes this, contending that he did not voluntarily withdraw from the Firm, that he was improperly terminated, and that the Firm shorted plaintiffs 2010 income as a result.
Plaintiff initially sought resolution through the direct settlement and mediation process provided for in the Operating Agreement. In November 2011, when these efforts failed, plaintiff filed a demand for arbitration with the American Arbitration Association, as outlined in the Operating Agreement. Plaintiffs arbitration demand contested his last five years of compensation and the managing directors’ decision to treat his departure as a relinquishment of his equity ownership status. Plaintiff alleged bad-faith discrimination in the allocation of income, bad-faith violations of the Operating Agreement, bad-faith misrepresentation, bad-faith conspiracy to improperly exclude him from the Firm, and shareholder oppression in violation of MCL 450.4515.
Despite having set the arbitration proceeding in motion, and while the parties were in the process of selecting arbitrators, plaintiff turned the tide by filing the instant case in the Ingham Circuit Court. Plaintiff did not name the Firm itself as a defendant in the suit. Instead, plaintiff named seven individual principals of the Firm: Hartmann, Coakley, and the five managing directors (collectively, defendants). In his circuit court complaint, plaintiff presented claims substantially similar to those he had alleged in arbitration, essentially repackaging them as tortious conduct: breach of fiduciary duty, illegal shareholder oppression contrary to MCL 450.4515, conversion, bad-faith misrepresentation, tortious interference with a business relationship or expectancy, and civil conspiracy.
In the circuit court, defendants filed a motion for summary disposition under MCR 2.116(C)(10) and a motion to compel arbitration under MCR 2.116(C)(7). In the motion to compel arbitration, defendants argued that plaintiffs claims fell within the scope of the Operating Agreement’s mandatory arbitration clause and that the circuit court was therefore compelled to dismiss the complaint. Plaintiff countered with a motion for partial summary disposition with respect to his claims of shareholder oppression, conversion, and tor-tious interference with a business relationship or expectancy. The circuit court denied defendants’ motions, concluding that the dispute did not fall within the ambit of the arbitration clause. The circuit court granted plaintiffs motion for partial summary disposition, finding as a matter of law that plaintiff did not voluntarily withdraw from the Firm under MCL 450.4509(1) or the Operating Agreement and that defendants had improperly terminated plaintiffs ownership interest without authority.
On appeal, the Court of Appeals affirmed the circuit court’s denial of defendants’ motion to compel arbitration, but reversed the circuit court’s order granting plaintiffs motion for partial summary disposition. Altobelli v Hartmann, 307 Mich App 612, 640; 861 NW2d 913 (2014). With respect to the motion to compel arbitration, the Court of Appeals determined that the central question was whether plaintiff could sue the Firm’s managers in their individual capacities or whether plaintiff was instead required to arbitrate his claims against them. Id. at 626. After examining the plain language of the arbitration clause, the Court of Appeals concluded that the provision only mandates arbitration of disputes between “the Firm” and “a Principal.” Id. at 628. The Court of Appeals rejected defendants’ argument that this was in essence a dispute between plaintiff and the Firm, noting that plaintiffs claims were asserted against defendants in their individual capacities and sought to hold them personally liable for their actions. Id. at 630-631. With respect to plaintiffs motion, the Court of Appeals found that MCL 450.4509(1) permits voluntary withdrawal if a firm’s operating agreement allows for such withdrawal, even without specifying a particular method. Id. at 631-636. The Court of Appeals then found that a genuine issue of fact existed as to whether plaintiff voluntarily withdrew from the Firm, thus concluding that summary disposition was unwarranted. Id. at 636-640.
In this Court, defendants challenged the Court of Appeals’ ruling on the motion to compel arbitration. Plaintiff filed a cross-appeal, challenging the Court of Appeals’ findings on plaintiffs motion for partial summary disposition. For the reasons stated below, we reverse the Court of Appeals’ judgment with respect to the motion to compel arbitration and vacate the remaining portions of the Court of Appeals’ decision relating to plaintiffs motion for partial summary disposition.
II. STANDARD OF REVIEW
This Court reviews de novo a circuit court’s decision on a motion for summary disposition brought under MCR 2.116(C)(7). Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). Under MCR 2.116(C)(7), summary disposition is appropriate if a claim is barred because of “an agreement to arbitrate!.]” Whether a particular issue is subject to arbitration is also reviewed de novo, In re Nestorovski Estate, 283 Mich App 177, 184; 769 NW2d 720 (2009), as is the interpretation of contractual language, Morley v Auto Club of Mich, 458 Mich 459, 465; 581 NW2d 237 (1998).
III. ANALYSIS
“Arbitration is a matter of contract.” Kaleva-Norman-Dickson Sch Dist No 6 v Kaleva-Norman-Dickson Sch Teachers’ Ass’n, 393 Mich 583, 587; 227 NW2d 500 (1975). Accordingly, when interpreting an arbitration agreement, we apply the same legal principles that govern contract interpretation. See F J Siller & Co v City of Hart, 400 Mich 578, 581; 255 NW2d 347 (1977). Our primary task is to ascertain the intent of the parties at the time they entered into the agreement, which we determine by examining the language of the agreement according to its plain and ordinary meaning. See Miller-Davis Co v Ahrens Constr, Inc, 495 Mich 161, 174; 848 NW2d 95 (2014). In considering the scope of an arbitration agreement, we note that “[a] party cannot be required to arbitrate an issue which [it] has not agreed to submit to arbitration.” Kaleva, 393 Mich at 587. “The general policy of this State is favorable to arbitration.” Detroit v A W Kutsche, 309 Mich 700, 703; 16 NW2d 128 (1944). The burden is on the party seeking to avoid the agreement, not the party seeking to enforce the agreement. McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 184; 405 NW2d 88 (1987). In deciding the threshold question of whether a dispute is arbitrable, a reviewing court must avoid analyzing the substantive merits of the dispute. Kaleva, 393 Mich at 594-595. If the dispute is arbitrable, “the merits of the dispute are for the arbitrator.” Id. at 595.
Applying these principles, we must consider whether the language of the arbitration clause in the Operating Agreement is intended to cover the instant dispute between plaintiff and the individually named defendants. The critical portion of the agreement reads:
Any dispute, controversy or claim ... between the Firm . . . and any current or former Principal... of any kind or nature whatsoever (including . . . compensation, or the payment or non-payment of any bonus . ..) shall be solely and conclusively resolved according to the following procedure [arbitration].
To resolve this issue, we must analyze two aspects of this provision. First, we must determine who the parties intended to include in the phrase “between the Firm . . . and ... [a] former Principal.” Second, we must determine whether the subject matter of the instant dispute is covered by the arbitration clause.
With respect to who is included, it is undisputed that plaintiff is a former principal. Therefore, this question turns on whether “the Firm” was meant to include the individually named defendants. Here, we must consider the concept of agency. Although no Michigan court has explicitly applied agency principles when interpreting an arbitration clause, it is well established that “corporations can only act through officers and agents .’’Attorney General v Nat’l Cash Register Co, 182 Mich 99, 111; 148 NW 420 (1914). See Junius Ten Eyck v Pontiac, Oxford & Port Austin R Co, 74 Mich 226, 232; 41 NW 905 (1889) (“The directors of a corporation are its agents.”); Mossman v Millenbach Motor Sales, 284 Mich 562, 569; 280 NW 50 (1938) (“Where a corporation has intrusted a manager with the general supervision of a particular branch of its business, it invests him with the power of a general agent. . . .”). This reflects the fact that a company is not a physical being capable of taking its own actions or making its own decisions. Indeed, a firm cannot act on its own behalf. Fraser Trebilcock Davis & Dunlap PC v Boyce Trust 2350, 497 Mich 265, 275; 870 NW2d 494 (2015). Therefore, “the acts of officers and agents of a corporation, within the scope of their employment, are the acts of the corporation!.]” Nat’l Cash Register, 182 Mich at 111.
Not only is this particular concept of agency ingrained in our caselaw, the statutory scheme governing the Operating Agreement also incorporates this principle. Under the Operating Agreement, the Firm is a limited liability company formed under the MLLCA. MCL 450.4401(a) states that if the management of a limited liability company is delegated to its members, “[t]he members are considered managers for purposes of applying this act, including section 406 regarding the agency authority of managers . . . .” (Emphasis added.) MCL 450.4406, in turn, states: “A manager is an agent of the limited liability company for the purpose of its business . . . .” (Emphasis added.) MCL 450.4402(4) adds: “If the articles of organization delegate management of a limited liability company to managers, the articles of organization constitute notice to third parties that managers, not members, have the agency authority described in section 406.” (Emphasis added.) The MLLCA explicitly refers to agency authority and the ability of individuals to act as agents for limited liability companies, which further supports the application of agency principles to interpret the instant arbitration clause.
When interpreting an arbitration clause, other jurisdictions have similarly applied agency principles. In Pritzker v Merrill Lynch, Pierce, Fenner & Smith, Inc, 7 F3d 1110, 1122 (CA 3,1993) (citation omitted; alteration in original), the United States Court of Appeals for the Third Circuit noted that a corporation “ ‘can only act through its employees, and an arbitration agreement would be of little value if it did not extend to [them].’ ” In Arnold v Arnold Corp-Printed Communi cations for Business, 920 F2d 1269, 1281 (CA 6, 1990), the Sixth Circuit Court of Appeals reasoned that if a plaintiff could “ ‘avoid the practical consequences of an agreement to arbitrate by naming. . . signatory parties in their individual capacities only, the effect of the rule requiring arbitration would, in effect, be nullified.’ ” (Citation omitted.) The First Circuit agreed:
Such a rule is necessary, our sister circuits have reasoned, because a corporate entity or other business can only operate through its employees and an arbitration agreement would be a meaningless arrangement if its terms did not extend to them.... Any other rule, in the view of these courts, would permit the party bringing the complaint to avoid the practical consequences of having signed an agreement to arbitrate; naming the other party’s officers, directors or employees as defendants along with the corporation would absolve the party of all obligations to arbitrate. [Grand Wireless, Inc v Verizon Wireless, Inc, 748 F3d 1, 11 (CA 1, 2014), citing Arnold, 920 F2d at 1281.]
For the above reasons, we hold that agency principles apply in determining who is included within the scope of the arbitration clause.
Next, we must consider whether the arbitration clause encompasses the subject matter of the dispute at issue in this case. Generally speaking, to ascertain whether the subject matter of a dispute is of the type that parties intended to submit to arbitration, we again begin with the plain language of the arbitration clause. See Miller-Davis, 495 Mich at 174. We then consider whether a plaintiffs particular action falls within that scope. We note that the gravamen of an action is determined by considering the entire claim. See Maiden v Rozwood, 461 Mich 109, 135; 597 NW2d 817 (1999). We look beyond the mere procedural labels to determine the exact nature of the claim. Adams v Adams (On Reconsideration), 276 Mich App 704, 711; 742 NW2d 399 (2007). This is to avoid “artful pleading.” Maiden, 461 Mich at 135.
IV. APPLICATION
Turning to the instant case, we first consider who is included within the scope of the arbitration clause in the Operating Agreement, and we next consider whether the subject matter of the instant dispute is covered by the clause. With respect to who is included, we begin with the plain language of the clause, asking whether the parties to the Operating Agreement intended to include these particular defendants within the meaning of “the Firm.” See Miller-Davis, 495 Mich at 174. Here, we note that the Operating Agreement clearly recognizes the agency principles previously discussed. The Operating Agreement, signed “by and between” plaintiff and defendants as an “agreement between them,” delegates authority to certain individuals to carry out the Firm’s business and manage its internal affairs. Managing directors are invested with the “[s]ole, full and complete power and authority to manage . . . the Firm . . . .” The CEO has, “with binding effect on the Managing Directors, the power and authority of the Managing Directors with respect to the day-to-day administration of the business and affairs of the Firm.” Thus, the language of the Operating Agreement evidences the parties’ understanding that a company cannot act on its own, but instead depends on the actions of agents to carry out its business. See Nat’l Cash Register, 182 Mich at 111. By signing the Operating Agreement and accepting the arbitration clause, plaintiff was aware that certain individuals would be operating on the Firm’s behalf.
Under the facts of this case, defendants are those individuals operating on the Firm’s behalf. Defendants are the five managing directors, the CEO, and the head of the Firm’s litigation group. The Operating Agreement explicitly endows them with complete power and responsibility for managing the affairs of the Firm. As officers, managers, and directors entrusted with carrying out the Firm’s business, defendants are agents of the Firm. Junius Ten Eyck, 74 Mich at 232; Mossman, 284 Mich at 569; MCL 450.4406. Their acts are acts of the company. Nat’l Cash Register, 182 Mich at 111. Because it is axiomatic that the Firm cannot act on its own, Fraser Trebilcock, 497 Mich at 275, and because these particular defendants are clearly endowed with agency authority to administer the Firm’s affairs, the individually named defendants must be included within the meaning of “the Firm” in the arbitration clause.
Next, we turn to whether the arbitration clause covers the subject matter of the dispute at issue in this case. The arbitration clause covers “[a]ny dispute, controversy or claim . . . between the Firm . . . and [a] former Principal... of any kind or nature whatsoever (including. . . compensation, or the payment or nonpayment of any bonus . . (Emphasis added.) At the outset, we emphasize the extremely broad and inclusive language of this provision. The plain language of the arbitration clause indicates that “any dispute” must be between the Firm and a former principal. Therefore, we consider more specifically whether the subject matter of the dispute reflects actions taken by the individual defendants as agents of the Firm.
In considering the gravamen of plaintiffs complaint, we examine the entire claim, looking beyond procedural labels to determine the exact nature of the claim. Maiden, 461 Mich at 135; Adams, 276 Mich App at 710-711. The result of this inquiry indicates that the instant dispute falls within the wide expanse of “any dispute” between the Firm and a current or former principal. To begin, in the factual recitation section of his complaint, plaintiff states that he initially approached defendants Hartmann and Coakley to propose a leave of absence that might have put him at odds with the section of the Operating Agreement obligating a principal to devote his or her full time to the Firm. In doing so, plaintiff acknowledged that his request was subject to the rules established in the Operating Agreement and also that he believed Hart- mann and Coakley had the authority to sanction his proposal. Similarly, when Hartmann appeared unreceptive, plaintiff informed the managing directors that he did not intend to relinquish his equity status or compensation, again informing the Firm’s decision-makers that he sought protection under the Operating Agreement. Plaintiff subsequently demanded the requisite two-thirds vote of the principals before his membership could be terminated, as outlined in the Operating Agreement. Believing that the managers ultimately terminated his ownership without this necessary vote, plaintiff now requests economic damages, particularly the “fair allocation of income (salary and bonuses).” Thus, the essence of plaintiffs allegations is that defendants’ actions deprived plaintiff of the compensation and bonuses to which he was entitled. The arbitration clause explicitly encompasses a dispute involving “compensation, or the payment or nonpayment of any bonus[.]” (Emphasis added.) This alone places plaintiffs dispute squarely under the mantle of the arbitration clause.
Examining plaintiffs individual claims further entrenches this dispute within the scope of the arbitration clause. Plaintiff first alleges breach of fiduciary duty. Plaintiff substantiates this claim with numerous factual allegations which inextricably tie defendants’ actions as agents of the Firm to the deprivation of plaintiffs rights under the Operating Agreement. “Bad-faith” allegations against defendants include “refusing to disclose information relevant to the affairs of the Firm,” “excluding [plaintiff] from involvement in significant Firm committees,” “isolating [plaintiff] from discussions about a client,” and “terminat[ing plaintiffs] ownership position without a vote of the Firm’s owners.” All of these alleged actions reflect decisions made by defendants in their capacities as the Firm’s agents, employing powers provided to them under the Operating Agreement and agency principles. See Mossman, 284 Mich at 569 (“Where a corporation has intrusted a manager with the general supervision of a particular branch of its business, it invests him with the power of a general agent. . . .”) (quotation marks and citation omitted); see also MCL 450.4401; MCL 450.4402(4). Therefore, this particular claim involves a dispute between the Firm and plaintiff, and is thus covered by the arbitration clause.
Likewise, to substantiate his claims of illegal shareholder oppression under MCL 450.4515, tortious interference with a business relationship or expectancy, and civil conspiracy, plaintiff asserts that defendants improperly terminated plaintiffs ownership in contravention of procedures established by the Operating Agreement. Plaintiffs conversion claim maintains that defendants “deprived [plaintiff] of his property without due process required by law—the process required by the Operating Agreement.” Plaintiffs claim alleging bad-faith misrepresentation avers that defendants intentionally duped plaintiff in order to secure the Firm’s business for themselves and other principals. Thus, in each individual claim, plaintiff takes issue with defendants’ actions as agents making decisions for the Firm, which plaintiff believes interfered with his financial entitlements under the Operating Agreement.
In sum, plaintiffs dispute falls within the scope of the mandatory arbitration clause in the Operating Agreement. A company can only act through its agents, the individual defendants are agents of the Firm, and plaintiff’s claims inextricably tie defendants’ actions as agents to the alleged deprivation of plaintiffs rights under the Operating Agreement. Plaintiff s dispute is subject to binding arbitration.
V. CONCLUSION
We reverse the part of the Court of Appeals’ opinion regarding the motion to compel arbitration and instead hold that this case is subject to binding arbitration under the arbitration clause of the Operating Agreement. Accordingly, the lower courts should not have reached the merits of plaintiffs motion for partial summary disposition, as the motion addresses substantive contractual matters that must be resolved by the arbitrator. Therefore, we vacate the portion of the Court of Appeals’ opinion related to plaintiffs motion for partial summary disposition and remand this case to the trial court for further proceedings consistent with this opinion.
Young, C.J., and Markman, Zahra, McCormack, Viviano, and Larsen, JJ., concurred with Bernstein, J.
Although plaintiff was a senior principal, he was not a managing director, and plaintiff does not allege that he had any further authority in the Firm.
While the parties dispute whether plaintiff voluntarily withdrew from the Firm in July 2010, it is undisputed that plaintiff eventually left the Firm, accepted a position at the University of Alabama, and is no longer a principal of the Firm.
As principals, each of these defendants had signed the Operating Agreement.
MCL 450.4509(1) provides in pertinent part: “A member may withdraw from a limited liability company only as provided in an operating agreement.”
In light of our resolution of defendant’s application for leave to appeal, plaintiffs application for leave to appeal as cross-appellant is denied as moot.
Additionally, after oral argument in this Court, plaintiff filed a “Motion to Correct the Record and to Impose Sanctions for Misconduct at Mini Oral Argument.” Plaintiff alleged that, on the record during oral argument, defendants misrepresented the Firm’s indemnification obligations and also violated court procedures by allowing a supposedly unauthorized person to sit at defense counsel’s table. Defendants responded in opposition. Plaintiffs motion is denied for lack of any legal or factual basis to support its claims.
We recognize that some cited caselaw addresses situations where agents acted on behalf of “a corporation,” whereas, in the instant case, the Firm is a professional limited liability company. However, in applying agency principles to interpret the instant arbitration clause, we see no reason to distinguish between a corporation and another type of company, and therefore we extend these established principles to the instant matter.
In its opinion in the instant case, the Court of Appeals extensively reviewed two previous Michigan cases and ultimately found them inapplicable: Hall v Stark Reagan, PC, 294 Mich App 88; 818 NW2d 367 (2011), rev’d in part 493 Mich 903 (2012), and Rooyakker & Sitz v Plante & Moran, PLLC, 276 Mich App 146; 742 NW2d 409 (2007). Altobelli, 307 Mich App at 625-631. In Hall, this Court considered an arbitration clause that covered “ ‘a dispute regarding interpretation or enforcement of.. . the parties’ rights or obligations’ ” under a shareholders’ agreement. Hall, 493 Mich at 903. This Court held that a dispute involving the motives of the defendants for invoking the separation provisions of the shareholders’ agreement fell within the scope of that particular arbitration clause. Id. In Rooyakker, the Court of Appeals concluded that two tort claims against nonparties to an arbitration agreement fell within the scope of an arbitration clause that included “any dispute or controversy arising out of or relating to” the agreement. Rooyakker, 276 Mich App at 163. Not only was the language of the arbitration clauses in those cases substantially different from the arbitration clause in the instant case, but neither case considered whether claims against particular individuals, acting as agents, fell within the scope of an arbitration clause, which is at issue in the instant case. We thus agree with the Court of Appeals that neither case is instructive in the instant matter.
We also note that the arbitration clause does not limit its scope to a dispute “naming the Firm” and a former principal, but rather “between the Firm” and a former principal. Had the parties intended that those named in the caption of a lawsuit dictate the scope of the agreement, they could have chosen particular language to indicate as much. The fact that they did not do so lends additional support to the conclusion that the plain language of the agreement evinces the intent to more broadly include agents within the meaning of “the Firm.” Plaintiff cannot now avoid the practical consequences of the arbitration clause simply by naming defendants in their individual capacities only. See Arnold, 920 F2d at 1281; Grand Wireless, 748 F3d at 11.
The Court of Appeals generally noted the following principle: “ ‘It is well established that corporate employees and officials are personally liable for all tortious and criminal acts in which they participate, regardless of whether they are acting on their own behalf or on behalf of a corporation.’ ” Altobelli, 307 Mich App at 630-631, quoting Joy Mgt Co v Detroit, 183 Mich App 334, 340; 455 NW2d 55 (1990). But resolution of the issues presented in this appeal does not require the invocation of this principle. In this appeal, we must decide in what venue plaintiff must bring his dispute, not whether the individual defendants may be held personally liable for the tortious actions alleged within that dispute. We conclude that, because plaintiffs claims challenge defendants’ actions taken in their capacity as agents of the Firm, plaintiffs dispute falls within the scope of this particular arbitration clause and must therefore be resolved in arbitration. Since this dispute must be resolved in arbitration, whether these defendants can be held personally liable for the challenged actions is a substantive matter reserved for the arbitrator. See Kaleva, 393 Mich at 595.
We acknowledge that defendant Coakley is not a managing director or CEO, but rather is a principal who is the head of the Firm’s litigation group. However, plaintiff does not argue that Coakley’s unique status disqualifies him from being considered an agent. Regardless, this argument would be meritless because principals too can be agents of a company. See Mossman, 284 Mich at 568; MCL 450.4401; MCL 450.4404(2)(a) (“In discharging the manager’s duties, a manager may rely on information, opinions, reports, or statements ... if prepared or presented by [a manager or principal] whom the manager reasonably believes to be reliable and competent in the matter presented.”). The Operating Agreement itself states that “[t]he Principals do hereby agree to . . . engage in the practice of law under the name ‘Miller, Canfield, Paddock and Stone, P.L.C.’ ” and that “[e]ach Principal shall devote his or her full time and best efforts to the success of the Firm . . . .”
The Court of Appeals noted that the arbitrator selection process in the arbitration clause requires the selection of three arbitrators, “one of whom shall be appointed by the Firm, one by the Prineipal(s).. . and the third of whom shall be appointed by the first two arbitrators.” Altobelli, 307 Mich App at 628 (quotation marks omitted). The Court of Appeals reasoned that, in a dispute between principals, the Firm would not be a party, yet the selection process would nonetheless require the Firm to select an arbitrator. Id. The Court of Appeals concluded that this evinced the parties’ intent to distinguish between the Firm and its principals as well as an intent to exclude disputes between principals from the scope of the arbitration clause. Id.
Certainly, this language distinguishes between the Firm and an adversarial principal in the arbitration proceeding, giving each the power to select an arbitrator. This provision does not, however, demonstrate any intent to exclude individual principals from the meaning of “the Firm.” The selection procedure still functions even if the proceeding involves individually named defendants and a plaintiff; the defendants could collectively choose one arbitrator, and the plaintiff could choose another. In fact, were we to agree with the Court of Appeals that individuals could not be included within the meaning of “the Firm,” this selection process would not work. The Firm, a company, cannot actually appoint its own arbitrators. The Firm itself cannot take any action at all. Instead, the act of appointing an arbitrator must be done by the Firm’s representatives in the arbitration proceeding. In ascertaining the intent of the parties at the time they entered into the contract, see Miller-Davis Co, 495 Mich at 174, we must conclude that this undeniable reality was understood by the parties. This further demonstrates the intent to include individual principals within the meaning of “the Firm” without explicitly stating as much in the arbitration clause. | [
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Leave to appeal denied at 498 Mich 883. | [
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Leave to appeal denied at 498 Mich 918. | [
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reported below: 311 Mich App 367. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Macomb Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge (Docket No. 149073), 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. The motion for appointment of counsel in this Court is denied as moot. We do not retain jurisdiction. | [
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On April 6, 2016, the Court heard oral argument on the application for leave to appeal the March 17,2015 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). The Court of Appeals erred in its reading of Executive Order 225 (EO 225). Contrary to the Court of Appeals conclusion, EO 225 by its plain language expresses the intent of the emergency manager to extinguish the defendant’s 2011-2012 fiscal year contribution. Although that contribution accrued on June 30, 2012, the defendant had not yet paid the obligation when EO 225 went into effect. EO 225 clearly states that, as of August 1, 2012, the defendant no longer has an obligation “to continue to make contributions” under Article III of the Trust Agreement. It does not differentiate between already accrued, but unpaid obligations and future obligations, and thus by its terms applies to both. Accordingly, the Court of Appeals erred by concluding that the emergency manager did not intend to extinguish the defendant’s 2011-2012 fiscal year contribution. Nonetheless, although the Court of Appeals determined that the emergency manager could retroactively extinguish the 2011-2012 fiscal year contribution through his authority under 2011 PA 14, it did not specifically address whether EO 225 was a permissible retroactive modification of the plaintiffs accrued right to the contribution. See LaFontaine Saline, Inc v Chrysler Group, LLC, 496 Mich 26 (2014). We therefore reverse that part of the Court of Appeals judgment which interprets EO 225, vacate that part of the Court of Appeals judgment which discusses the plaintiffs breach of contract claim, and remand this case to the Court of Appeals for it to consider: (1) whether the retroactivity analysis stated in LaFontaine applies to EO 225; (2) if so, whether the extinguishment of the defendant’s accrued, but unpaid, 2011-2012 fiscal year contribution by EO 225 is permissible under LaFontaine; and (3) if LaFontaine does not apply, the appropriate method for determining whether EO 225 constitutes a permissible retroactive modification of the 2011-2012 fiscal year contribution. We do not retain jurisdiction. | [
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By order of December 23, 2015, the application for leave to appeal the September 9, 2014 judgment of the Court of Appeals was held in abeyance pending the decision in In re Jones (Docket No. 152595). On order of the Court, the order granting leave to appeal having been vacated in In re Jones, 499 Mich 862 (2016), the application is again considered. We direct the Clerk to schedule oral argument on whether to grant the application or take other action. MCR 7.305(H)(1). The parties shall file supplemental briefs within 42 days of the date of this order addressing: (1) whether the family court lacked subject matter jurisdiction to issue the order compelling the appellant to submit to random drug testing as part of her son’s juvenile delinquency proceeding, see MCL 712A.6; Jackson City Bank & Trust Co v Fredrick, 271 Mich 538, 544-545 (1935); (2) whether Michigan recognizes any other exceptions to application of the collateral bar rule, including (a) lack of opportunity for meaningful appellate review of the January 14, 2011 drug testing order; or (b) the appellant’s irretrievable surrender of constitutional guarantees by complying with the drug testing order, see Maness v Meyers, 419 US 449; 95 S Ct 584; 42 L Ed 2d 574 (1975); and (3) whether the appellant has properly preserved question (2) for appellate review. The parties should not submit mere restatements of their application papers or their previously filed supplemental briefs.
Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. | [
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The parties shall file supplemental briefs within 42 days of the date of this order including, among the issues to be briefed, whether the crosswalk installed by the defendant had a special aspect that could create liability for even an open and obvious hazard, and whether such a special aspect can exist if the condition is not unreasonably dangerous. See Hoffner v Lanctoe, 492 Mich 450, 455 (2012); Lugo v Ameritech Corp, Inc, 464 Mich 512, 517 (2001). The parties should not submit mere restatements of their application papers. | [
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Memorandum Opinion.
The sole issue in this case is whether the lower courts erred by concluding that plaintiffs failed to provide sufficient evidence of a highway defect such that reasonable jurors could conclude that the highway was not in a state of reasonable repair for purposes of the “highway exception” to governmental immunity, MCL 691.1402(1). Because we conclude that plaintiffs presented sufficient evidence to avoid summary disposition, we reverse the judgment of the Court of Appeals and remand to the Wayne Circuit Court for further proceedings not inconsistent with this opinion.
Plaintiff Barbara Kozak alleged she was injured while crossing Kings Highway in Lincoln Park when she tripped over a three-inch elevation differential between the two slabs of concrete that met at the centerline of the street. Kozak and her husband brought the instant action against defendant, the city of Lincoln Park, pursuant to the “highway exception,” alleging that defendant failed to “maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” Defendant moved for summary disposition under MCR 2.116(C)(7) (governmental immunity) and (C)(10) (no genuine issue of material fact). The trial court granted defendant’s motion, and the Court of Appeals, in a divided unpublished opinion, affirmed, concluding that plaintiffs did not provide evidence to counter defendant’s assertions that the road was reasonably safe and convenient for public travel.
This Court reviews de novo a trial court’s determination regarding a motion for summary disposition.
The governmental tort liability act (GTLA), MCL 691.1401 et seq., affords broad immunity from tort liability to governmental agencies and their employees whenever they are engaged in the exercise or discharge of a governmental function. The GTLA provides several exceptions to this general rule, all of which must be narrowly construed. One such exception, the “highway exception,” is contained in MCL 691.1402 and states in pertinent part:
Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person 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 691.1402(1).]
This exception encompasses injuries to pedestrians.
In support of its motion, defendant submitted only the affidavit of Robert Bartók, defendant’s Director of Public Services, in which Bartók offered his opinion that the height differential “does not render the highway either unsafe or inconvenient for public travel” and that “the highway in this area is in fact reasonably safe and convenient for public travel.” Plaintiff countered by submitting various forms of documentary evidence in support of their action, including photographs of the height differential, an affidavit from a local resident who stated that the roadway had been in that condition for about the last six years, and excerpts from Barbara’s deposition, in which she described her fall. Plaintiffs also submitted defendant’s answer to written interrogatories, in which defendant admitted that “no maintenance, paving or repaving was done to 813 King’s Highway prior to the alleged date of the fall.”
Considering defendant’s conclusory affidavit alongside the evidence submitted by plaintiffs, we conclude that plaintiffs created a genuine issue of material fact giving rise to a reasonable inference that the highway was not in reasonable repair. Based on the evidence proffered by plaintiffs, including photographic proof of a significant gap of elevation between the slabs of pavement, a reasonable jury could conclude that the highway was not in a state of reasonable repair so that it was reasonably safe and convenient for public travel. The only evidence submitted by defendant was the affidavit of Bartók, which merely articulated his opinion that the condition did not render the highway unsafe or inconvenient for public travel. An affidavit that contains mere conclusory statements is insufficient to support a motion for summary disposition. Consequently, we conclude that the trial court should have denied defendant’s motion for summary disposition, and the Court of Appeals erred by concluding to the contrary. We therefore reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings not inconsistent with this opinion.
Young, C.J., and Markman, Zahra, McCormack, Viviano, Bernstein, and Larsen, JJ., concurred.
Kozak v Lincoln Park, unpublished opinion per curiam of the Court of Appeals, issued July 21, 2015 (Docket No. 319797).
Douglas v Allstate Ins Co, 492 Mich 241, 256; 821 NW2d 472 (2012), citing Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).
MCL 691.1407(1).
Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000).
See Nawrocki, 463 Mich at 171-172.
See Rose v Nat‘1 Auction Group, Inc, 466 Mich 453, 470; 646 NW2d 455 (2002) (stating that conclusory statements are not enough to create a genuine issue of material fact under MCR 2.116(C)(7)); Quinto v Cross & Peters Co, 451 Mich 358, 371-372; 547 NW2d 314 (1996) (stating that an affidavit with mere conclusory allegations was insufficient to avoid summary disposition under MCR 2.116(0(10)).
In dissent, Judge Beckering focused on the trial court’s application of an excerpt from this Court’s decision in Wilson v Alpena Co Rd Comm, 474 Mich 161, 169; 713 NW2d 717 (2006), in which the Court stated that “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.” We agree with the dissent that, when read in context, this language in Wilson does not require a plaintiff to submit evidence that literally describes what a reasonable road commission would do under the facts of each particular case, but rather that a plaintiff must submit evidence that the defect in question was of such a nature that it would have been apparent to a reasonable road commission that the defect rendered the highway not reasonably safe. However, we note that the Court of Appeals majority did not misconstrue this excerpt from Wilson, but instead focused on a sufficiency-of-the-evidence analysis. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Tuscola Circuit Court for consideration of the defendant’s issues regarding People v Cunningham, 496 Mich 145 (2014), and MCL 769.1k (as amended effective October 17, 2014) as to the assessment of court costs. We do not retain jurisdiction. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Genesee Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016); Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). We do not retain jurisdiction. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted. | [
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Summary disposition at 498 Mich 914. | [
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The parties shall file supplemental briefs within 42 days of the date of this order addressing: (1) whether Wexford Med Group v City of Cadillac, 474 Mich 192 (2006), correctly held that an institution does not qualify as a “charitable institution” under MCL 211.7o or MCL 211.9 if it offers its charity on a “discriminatory basis”; (2) if so, how “discriminatory basis” should be given proper meaning; (3) the extent to which the relationship between an institution’s written policies and its actual distribution of charitable resources is relevant to that definition; and (4) whether, given the foregoing, the petitioner is entitled to a tax exemption. The parties should not submit mere restatements of their application papers. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the St. Clair Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentences absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction. | [
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reported below: 312 Mich App 734. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Clare Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. We do not retain jurisdiction. | [
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Leave to appeal denied at 498 Mich 871. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Livingston Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the Alcona Circuit Court’s award of restitution in the amount of $1,332.47, and we remand this case to the circuit court for reconsideration of the amount of restitution to be ordered in light of People v McKinley, 496 Mich 410 (2014). We do not retain jurisdiction. | [
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reported below: 311 Mich App 164. | [
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Superintending control denied at 498 Mich 923. | [
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On order of the Court, in conformity with the mandate of the Supreme Court of the United States, we reverse the November 15,2012 judgment of the Court of Appeals, we vacate the defendant’s sentence for first-degree murder, and we remand this case to the St. Clair Circuit Court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016), and Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Wayne Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing pursuant to MCL 769.25 and MCL 769.25a. See Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016), and Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. The motion to remand for an evidentiary hearing pursuant to People v Ginther, 390 Mich 436 (1973), is denied. We do not retain jurisdiction. | [
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Leave to appeal denied at 499 Mich 916. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration as on leave granted. The Court of Appeals shall consider (1) whether publication of an allegedly false and defamatory statement imputing to another conduct constituting the criminal offense of battery is actionable irrespective of special harm, see, e.g., Mains v Whiting, 87 Mich 172, 180 (1891); Taylor v Kneeland, 1 Doug 67, 72 (1843) (holding that words charging a person with a crime are not actionable per se unless the crime involves moral turpitude or would subject the person to an infamous punishment); and (2) whether the statement at issue in this case imputed to the plaintiff the criminal offense of battery. | [
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The parties shall include among the issues to be briefed: (1) whether the plaintiff in this toxic tort case sufficiently established causation to avoid summary disposition under MCR 2.116(0(10); and (2) whether the plaintiff was required to present expert witness testimony regarding general and specific causation. See Genna v Jackson, 286 Mich App 413 (2009).
Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Wayne Circuit Court for the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction under MCL 769.25 and MCL 769.25a. See Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016). In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. | [
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Oral argument granted on application 498 Mich 929. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the St. Joseph Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction. | [
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On order of the Court, the application for leave to appeal the April 21, 2015 judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals, and we remand this case to that court to reconsider whether the plaintiffs’ complaint stated a legally cognizable claim of statutory conversion under MCL 600.2919a(l)(a). Hofweber v Detroit Trust Co, 295 Mich 96, 100 (1940). The Court of Appeals erred by failing to limit its review to the allegations contained in the complaint and by failing to recognize the appropriate standard for reviewing the sufficiency of a pleading. See MCR 2.111(B)(1); Steed v Covey, 355 Mich 504, 511 (1959). We do not retain jurisdiction. | [
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ZAHRA, J.
This case presents the question whether someone convicted of failing to comply with the Sex Offenders Registration Act (SORA) as a second of fender, MCL 28.729(l)(b) (SORA-2), can be subject to sentence enhancement under the habitual offender act (HOA). The trial court sentenced defendant as a second-offense habitual offender on the basis of his prior conviction for violating the registration requirements of MCL 28.729(l)(a) (SORA-1) and his instant conviction for violating MCL 28.729(l)(b) (SORA-2). There can no dispute that at the time of sentencing, defendant had been convicted of two felonies. But because defendant could not be convicted of SORA-2 without first having been convicted of SORA-1, defendant maintains that his SORA-1 conviction cannot also be used under the HOA to enhance the sentence imposed for the SORA-2 conviction. The Court of Appeals agreed with defendant. We reverse. We hold that the sentence imposed for defendant’s SORA-2 conviction can be enhanced under the habitual-offender statutes because the Legislature created separate offenses for subsequent violations of SORA. Nothing in SORA or the HOA precludes a sentencing court from enhancing the maximum sentence provided for SORA-2 by the applicable habitual-offender statute. This conclusion is consistent with Michigan caselaw addressing the application of the habitual-offender statutes to other recidivism statutory schemes. Accordingly, we reverse the judgment of the Court of Appeals, remand the case to the Ionia Circuit Court, and direct that court to reinstate defendant’s original judgment of sentence of 2 to 10.5 years as a second-offense habitual offender for his SORA-2 conviction.
I. FACTS AND PROCEDURAL HISTORY
As a result of a 2007 misdemeanor conviction of fourth-degree criminal sexual conduct, defendant was required to register on the Michigan Sex Offender Registry semiannually for 25 years. Defendant failed to properly register and in February 2010 pleaded guilty of SORA-1, a felony, and was sentenced to 5 years’ probation, with the first 4 months served in jail. On April 30, 2012, defendant registered his address as 6123 Clarksville Road in Clarksville, Michigan. He verified that address on January 9, 2013. In March 2013, Clarksville police received an anonymous tip that defendant was not living at the Clarksville Road address, but at 211 West Riverside. After investigating, police determined that the Clarksville Road address was vacant and that defendant was staying at 211 West Riverside, the home of his spouse. Defendant was arrested for failing to comply with SORA. In June 2013, a jury convicted defendant of SORA-2. Although MCL 28.729(l)(b) provides for a maximum sentence of 7 years, the trial court sentenced defendant under MCL 769.10(l)(a) as a second-offense habitual offender to 2 to 10.5 years’ imprisonment.
Defendant appealed, arguing, among other things, that he is entitled to resentencing because the trial court erred when it enhanced his sentence under the habitual-offender provisions. The Court of Appeals vacated defendant’s sentence and remanded for re-sentencing, concluding that the sentence imposed for defendant’s SORA-2 conviction could not be enhanced under the applicable habitual-offender statute.
The Court of Appeals noted that the “language of MCL 769.10(l)(a) directs a sentencing court to sentence the offender for a subsequent offense to a maximum term ‘that is not more than IV2 times the longest term prescribed for a first conviction of that offense . . . ” The Court of Appeals concluded that MCL 28.729(1), which delineates SORA-1, SORA-2 and SORA-3, sets forth one offense with escalating punishments for repeat convictions, stating:
The maximum term prescribed for a first conviction of that offense is 4 years’ imprisonment. MCL 28.729(l)(a). Thus, under MCL 769.10(l)(a) defendant would be subject to no more than 6 years’ imprisonment—IV2 times 4 years is 6 years. The trial court erred by basing defendant’s sentence on IV2 times the maximum prison sentence (7 years) provided under MCL 28.729(l)(b) because that provision sets forth the punishment for a second conviction of failure to comply with SORA. The plain language of MCL 769.10(1)(a) clearly directs a court to enhance a sentence by increasing the longest term prescribed for a first conviction of the subsequent offense, not the longest term prescribed for a second conviction)[ ]
As a result, the Court of Appeals concluded that SORA and the HOA conflicted because under the applicable habitual-offender statute, defendant was subject to not more than a 6-year prison sentence, while under SORA-2, MCL 28.729(1)(b), defendant was subject to a 7-year maximum sentence. The Court of Appeals described MCL 28.729(l)(a) to (c) as “set[ting] forth the penalties for failing to comply with the requirements of SORA.” Because the maximum prison sentence prescribed under the applicable habitual-offender statute is different from the maximum prison sentence prescribed under SORA-2, the Court of Appeals concluded that “the two statutes irreconcilably conflict.” The Court of Appeals held that because SORA-2 specifically applies to subsequent violations of SORA, whereas the HOA generally applies to subsequent felony convictions, SORA is controlling, and defendant’s maximum sentence should have been 7 years.
We granted leave to address “whether the second-offense habitual-offender enhancement set forth under MCL 769.10 may be applied to the sentence prescribed under MCL 28.729(l)(b).”
II. STANDARD OF REVIEW AND RULES OF STATUTORY INTERPRETATION
We review de novo questions of statutory interpretation. When interpreting a statute, courts must strive to give effect to the Legislature’s intent. “The focus of our analysis must be the statute’s express language, which offers the most reliable evidence of the Legislature’s intent.” The Legislature is presumed to have intended the meaning it plainly expressed in the statute. When the statutory language is clear and unambiguous, judicial construction is not permitted, and the statute is enforced as written.
In this case we examine the interplay between several statutes: the HOA, SORA, and the sentencing guidelines, MCL 777.1 et seq. “[A] court’s duty is to give meaning to all sections of a statute and to avoid, if at all possible, nullifying one by an overly broad interpretation of another.” More specifically, it is appropriate to read the sentencing guidelines and the HOA, which are part of Michigan’s Code of Criminal Procedure, “together with the substantive statutes that the Legi-salture has enacted that define crimes and prescribes fines and costs.” Thus, the sentencing guidelines, the HOA, and SORA should be read in pari material.
III. ANALYSIS
A. THE HABITUAL OFFENDER ACT
In 1927, Michigan enacted the HOA as part of Chapter IX of the Code of Criminal Procedure. It contains three sections to enhance sentences imposed on recidivist offenders. MCL 769.10 applies to those sentenced for their second felony convictions, MCL 769.11 applies to those sentenced for their third felony convictions, and MCL 769.12 applies to those sentenced for their fourth or higher felony convictions. This Court has repeatedly stated that, by enacting the HOA, “the legislature did not intend to make a separate substantive crime out of being a habitual offender but rather, for deterrent purposes, intended to augment the punishment for second or subsequent offenses.”
Importantly, in 1998 the Legislature expressly instructed courts when enhancement under the HOA is inapplicable. Each of the three enhancement sections states: “A conviction shall not be used to enhance a sentence under this section if that conviction is used to enhance a sentence under a statute that prohibits use of the conviction for further enhancement under this section.” We presume, as we must, that the Legislature was well aware of these provisions of the HOA when it amended SORA in 1999 to create SORA-1, SORA-2, and SORA-3. We also presume that the Legislature was aware that Michigan courts had applied the HOA to other recidivism criminal statutes at the time the pertinent provisions of SORA became law. Significantly, the Legislature added nothing to SORA to exempt it from application of the HOA.
The Legislature has also demonstrated that when it intends to do so, it is able to exclude particular categories of felonies from the HOA. For example, the HOA was amended in 1978 to explicitly exclude application of the HOA to subsequent major controlled substance offenses by adding the following language to MCL 769.10 and substantially similar language to MCL 769.11 and MCL 769.12:
If the subsequent felony is a major controlled substance offense, the person shall be punished as provided by Act No. 196 of the Public Acts of 1971, as amended, being sections 335.301 to 335.367 of the Michigan Compiled Laws.[ ]
The HOA makes no such exception for convictions under SORA’s recidivism provisions, MCL 28.729(l)(a), (b), and (c). The Legislature has amended various criminal statutes to expressly prohibit application of the HOA to an offense, but it has not seen fit to adopt a similar exception for SORA-2 and SORA-3 convictions, although it has had numerous opportunities to do so.
There being no statutory bar to the application of the HOA to SORA, the trial court sentenced defendant as a second-offense habitual offender under MCL 769.10(l)(a), which states:
If a person has been convicted of a felony or an attempt to commit a felony . . . and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony... as follows:
(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, the court. . . may place the person on probation or sentence the person to imprisonment for a maximum term that is not more than IV2 times the longest term prescribed for a first conviction of that offense or for a lesser term. [Emphasis added.]
Defendant maintains, and the Court of Appeals agreed, that the words “that offense” refer to violations of SORA generally under MCL 28.729(1). Defendant’s position is premised on the notion that MCL 28.729(l)(a) to (c) are merely sentence-enhancement provisions applicable when there are repeat violations of SORA. The prosecution contends, and the trial court agreed, that the words “that offense” refer to separate felony convictions under MCL 28.729(1), in this case SORA-2, MCL 28.729(l)(b). Accordingly, we must determine whether SORA sets forth a single substantive offense with enhanced punishments for subsequent violations or whether SORA provides three separate and distinct substantive offenses for recidivist behavior.
B. SORA CREATES THREE SEPARATE OFFENSES
There is strong textual support leading to the conclusion that the Legislature created three separate offenses in MCL 28.729(1). When the Legislature enacted SORA in 1994, it delineated only one offense punishable by 4 years’ imprisonment, a fine, or both. Had that section been left in its original form, there would have been no doubt that subsequent violations of SORA. would be subject to enhancements under the HOA and, for a second-offense habitual offender, the maximum sentence would be 6 years, IV2 times the 4-year sentence. But the Legislature amended SORA in 1999 to set forth SORA-1, SORA-2, and SORA-3. Simultaneously, the Legislature amended the sentencing guidelines, MCL 777.1 et seq., to address the SORA amendments.
The sentencing guidelines expressly assign felonies an offense category and offense class, and MCL 777.11 to MCL 777.18 give descriptions of the offenses and identify the statutory maximum terms of imprisonment. Before the 1999 amendment of SORA that set forth SORA-1, SORA-2, and SORA-3, MCL 777.11 (as originally enacted by 1998 PA 317) identified MCL 28.729 as establishing one offense, a Class G felony, punishable by up to 4 years’ imprisonment and described as “Sex offenders—failure to register [.] ” In 1999 PA 90, the Legislature amended MCL 777.11 to list SORA-1, SORA-2, and SORA-3 as separate and distinct offenses. While the Legislature designated the three offenses as being in the offense category of “crimes against public order,” it did not assign the same offense class to all three. Furthermore, the Legislature gave different descriptions for all three. SORA-1, MCL 28.729(l)(a), is a Class F felony, punishable by up to 4 years’ imprisonment and described as “Failure to register as a sex offender, first offense[,]” SORA-2, MCL 28.729(l)(b), is a Class D felony, punishable by up to 7 years’ imprisonment and described as “Failure to register as a sex offender, second offense!.]” SORA-3, MCL 28.729(l)(c), is a Class D felony, punishable by up to 10 years’ imprisonment and described as “Failure to register as a sex offender, third or subsequent offense[.]” The Legislature’s references to SORA-1, SORA-2, and SORA-3 as individual offenses, its classification of these offenses in two different offense classes, and its differing offense descriptions and penalties demonstrate that the Legislature intended these offenses to be separate and distinct felonies that elevate in severity for recidivist behavior.
Having concluded that SORA does indeed create three separate offenses, we return to the provision of the HOA at issue:
If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, the court. .. may place the person on probation or sentence the person to imprisonment for a maximum term that is not more than IV2 times the longest term prescribed for a first conviction of that offense or for a lesser term.[ ]
The words “first conviction of that offense” plainly refer to “the subsequent felony” identified in the first part of the sentence. Defendant’s subsequent felony is his conviction in June 2013 of SORA-2, which is punishable by a maximum of 7 years’ imprisonment.
We conclude that the Court of Appeals erred by interpreting MCL 28.729(1) and MCL 769.10 as directly conflicting. Defendant was charged with and convicted of SORA-2, MCL 28.729(l)(b), and not a violation of SORA generally. We must then consider the longest term prescribed for a first conviction of SORA-2 under MCL 28.729(l)(b), which, again, is 7 years. MCL 769.10(l)(a) states that the court may sentence a defendant to a term of imprisonment IV2 times the longest term prescribed for a “first conviction of that offense.” The Court of Appeals, by holding that MCL 28.729(1) sets forth a single offense, erroneously read the phrase “that offense” as meaning any violation under MCL 28.729. Consequently, the Court of Appeals mistakenly concluded that the phrase “first conviction of that offense” in MCL 769.10(l)(a) referred to MCL 28.729(l)(a) (SORA-1) and that, as a result, defendant’s maximum sentence as a second-offense habitual offender would be 6 years. Rather, defendant was subject to a 7-year maximum term of imprisonment, and the trial court appropriately exercised its discretion in sentencing defendant to IV2 times that statutory maximum, i.e., 10.5 years.
C. CASELAW SUPPORTS APPLICATION OF THE HOA TO A SORA-2 CONVICTION
Michigan caselaw also supports our conclusion that a SORA-2 conviction can be enhanced under the HOA. In People v Bewersdorf, one of the defendants, Bewersdorf, pleaded guilty of operating a motor vehicle while under the influence of intoxicating liquor, third offense (OUIL-3), a felony punishable by up to 5 years’ imprisonment, and of being a second-offense habitual off ender. The Court of Appeals panel in Bewersdorf, much like the Court of Appeals panel in this case, vacated Bewersdorfs habitual-offender sentence enhancement, concluding that the two statutes stood in conflict and therefore the more specific sentencing scheme applicable to OUIL offenses under the Michigan Vehicle Code “prevail [ed] to the exclusion of the general habitual-offender statute.”
This Court reversed in part, concluding that while the HOA establishes a procedure for enhancing a sentence, it is clear that the OUIL provisions of the Michigan Vehicle Code established separate crimes. We rejected the Court of Appeals’ ’’forced construction that placed the two statutes in conflict,” holding that the two statutes could be read to “dovetail harmoniously,” thereby concluding that Bewersdorfs OUIL-3 conviction was subject to the habitual-offender provisions of the HOA.
The statutory scheme in SORA, MCL 28.729(1), is similar to that currently establishing the OWI offenses (previously known as OUIL) in the Michigan Vehicle Code, MCL 257.625(9)(a) to (c). Both schemes establish three separate crimes, stating in the prefatory language that a violation will be punished as stated in the subparts and then creating a first offense, second offense, and third or subsequent offense.
Just as Bewersdorf held that “OUIL-3 is a separate crime” from other OUIL offenses, the same is true of SORA. MCL 257.625(9) currently creates three separate crimes under Subdivision (a) (first offense), Subdivision (b) (second offense if committed within 7 years of a prior conviction), and Subdivision (c) (third or subsequent offense), and MCL 28.729(1) creates three separate crimes under Subdivision (a) (first offense), Subdivision (b) (second offense), and Subdivision (c) (third or subsequent offense). This is likewise true of other statutory schemes of commonly charged offenses, such as domestic violence, MCL 750.81(2) to (4). In addition, our reasoning is consistent with other Court of Appeals cases that have addressed this issue.
Pursuant to the statutory analysis discussed earlier in this opinion, we conclude that the Legislature intended in enacting SORA-2 and SORA-3 to elevate each offense, not merely the punishment. Thus, Michigan caselaw also supports our conclusion that a trial court can sentence defendant under SORA-2 as a second-offense habitual offender using his SORA-1 conviction.
IV. CONCLUSION
We conclude that MCL 28.729(1) sets forth a recidivism statutory scheme that creates three separate felonies that elevate on the basis of repeat offenses. We further conclude that a SORA-2 sentence for recidivist behavior may be elevated under the second-offense habitual-offender statute, MCL 769.10(l)(a). Accordingly, the trial court appropriately exercised its discretion when it sentenced defendant to a 10.5-year maximum term of imprisonment. The Court of Appeals erred when it vacated defendant’s sentence and wrongly concluded that MCL 769.10 and MCL 28.729 conflict and that, as a result, defendant could only be sentenced to the 7-year maximum set forth in MCL 28.729(l)(b).
We reverse the judgment of the Court of Appeals, remand the case to the Ionia Circuit Court, and direct that court to reinstate defendant’s original judgment of sentence of 2 to 10.5 years as a second-offense habitual offender for a second offense of failing to comply with the SORA reporting requirements, MCL 28.729(l)(b). Pursuant to MCR 7.315(C)(3), the Clerk of the Court is directed to issue the judgment order forthwith.
Young, C.J., and Markman, McCormack, and Larsen, JJ., concurred with ZAHRA, J.
MCL 28.721 et seq.
See note 33 of this opinion.
MCL 769.10, MCL 769.11, MCL 769.12, and MCL 769.13. Specifically, defendant was charged under the second-offense habitual-offender statute, MCL 769.10(l)(a), which provides in relevant part that upon conviction of a second felony, the court may sentence the defendant to a term of imprisonment that is “IV2 times the longest term prescribed for a first conviction of that offense or for a lesser term.”
MCL 28.729(l)(c) covers violating SOPA a third or subsequent time (SORA-3).
Defendant was found living with his spouse even though he was precluded from having any contact with her under the terms of his probation.
See note 3 of this opinion.
People v Allen, 310 Mich App 328; 872 NW2d 21 (2015).
Id. at 349.
Id. at 350.
Id. at 350-351.
Id. at 350.
Id. at 350-351.
Id. at 351.
People v Allen, 498 Mich 910 (2015).
People v Hartwick, 498 Mich 192, 209; 870 NW2d 37 (2015); Hannay v Dep’t of Transp, 497 Mich 45, 57; 860 NW2d 67 (2014).
People v Watkins, 491 Mich 450, 467; 818 NW2d 296 (2012).
Badeen v PAR, Inc, 496 Mich 76, 81; 853 NW2d 303 (2014).
In re AJR, 496 Mich 346, 353; 852 NW2d 760 (2014). See also People v Likine, 492 Mich 367, 387; 823 NW2d 50 (2012).
People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008).
Koenig v South Haven, 460 Mich 667, 677; 597 NW2d 99 (1999).
MCL 760.1 et seq.
People v Cunningham, 496 Mich 145, 156 n 8; 852 NW2d 118 (2014).
Id. (“[T]he Penal Code and the Code of Criminal Procedure ‘relate generally to the same thing and must therefore be read in pari materia . . . .’ ”), quoting People v Smith, 423 Mich 427, 442; 378 NW2d 384 (1985).
See 1927 PA 175.
People v Shotwell, 352 Mich 42, 46; 88 NW2d 313 (1958).
MCL 769.10(3), MCL 769.11(3), and MCL 769.12(3), all as amended by 1998 PA 317.
See Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 506; 475 NW2d 704 (1991) (“[T]he Legislature is presumed to act with knowledge of statutory interpretations by the Court of Appeals and this Court.”).
E.g., People v VanderMel, 156 Mich App 231, 232; 401 NW2d 285 (1986). The defendant in that case pleaded guilty of second-degree criminal sexual conduct, MCL 750.520e(1)(b), and having committed a second criminal sexual conduct offense, MCL 750.520f, and was sentenced as a second-offense habitual offender under MCL 769.10. The Court of Appeals held that both the recidivism criminal sexual conduct statute, MCL 750.520f, and the habitual-offender statute, MCL 769.10, could be concurrently applied. Id. at 235-237. In so holding, the Court of Appeals stated, “Because the Legislature has not prohibited concurrent application of MCL 750.520f and the habitual offender statutes, we decline to do so . . ..” Id. at 236-237 (citation omitted).
People v Bewersdorf, 438 Mich 55, 72; 475 NW2d 231 (1991).
MCL 769.10(1)(c), as amended by 1978 PA 77. See also MCL 769.11(1)(c) and MCL 769.12(l)(c), both as amended by 1978 PA 77. The reference was to the former Controlled Substances Act. Subsequently, 1988 PA 90 revised the reference to Chapter 74 of the Public Health Code, MCL 333.7401 et seq.
For example, in 1998 PA 311, the Legislature revised the first-degree retail fraud statute, MCL 750.356c, to state:
If the sentence for a conviction under this section is enhanced by 1 or more prior convictions, those prior convictions shall not be used to further enhance the sentence for the conviction pursuant to section 10, 11, or 12 of chapter DC of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12. [MCL 750.356c(6).]
Similar prohibitions against application of the habitual-offender sentence enhancements can be found in MCL 750.79(4) (intent to commit arson); MCL 750.131(5) (checks drawn on insufficient funds); MCL 750.157s(4) (use of revoked or canceled financial transaction devices with intent to defraud); MCL 750.157w(4) (use of financial transaction device in excess of funds with intent to defraud); MCL 750.174(11) (embezzlement); MCL 750.218(10) (false pretenses); MCL 750.356(9) (larceny); MCL 750.362a(8) (refusal/neglect to return rented vehicle); MCL 750.377a(4) (malicious destruction of personalty); MCL 750.535(11) (receiving or concealing stolen property); and MCL 750.540g(4) (unauthorized use of telecommunications services). “Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.” Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993).
The Legislature has amended SORA several times since its enactment and has elected to not preclude application of the habitual-offender provisions to a SORA-2 or SORA-3 conviction.
MCL 28.729(1) currently provides:
[A]n individual required to be registered under this act who willfully violates this act is guilty of a felony punishable as follows:
(a) If the individual has no prior convictions for a violation of this act, by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.
(b) If the individual has 1 prior conviction for a violation of this act, by imprisonment for not more than 7 years or a fine of not more than $5,000.00, or both.
(c) If the individual has 2 or more prior convictions for violations of this act, by imprisonment for not more than 10 years or a fine of not more than $10,000.00, or both.
MCL 28.729(1), as enacted by 1994 PA 295, provided:
An individual required to be registered under this act who willfully violates this act is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.
1999 PA 85, effective September 1, 1999.
1999 PA 90, effective September 1, 1999.
All offenses to which the guidelines apply are classified in a manner that generally corresponds to the seriousness of the offense. This gradation of seriousness is indicated by the offense’s class, which is designated by the letters “M2” (second-degree murder) and “A” through “H,” in order of decreasing seriousness. For example, when scoring Prior Record Variable (PRV) 1, MCL 777.51, a “high severity felony conviction” is defined in part as a conviction for a “crime listed in class M2, A, B, C, or D”; when scoring PEV 2, MCL 777.52, a “low severity felony conviction” is defined in part as a conviction for a “crime listed in class E, F, G, or H[.]”
At that time, MCL 28.729 was listed in MCL 777.11. Subsequently, 2002 PA 31 added several new sections to the guidelines, and MCL 28.729 became listed in MCL 777.11b.
MCL 777.5(d); MCL 777.11b. All offenses to which the sentencing guidelines apply belong to one of six offense categories: crimes against a person, crimes against property, crimes involving a controlled substance, crimes against public order, crimes against public trust, and crimes against public safety. MCL 777.5(a) to (f).
MCL 777.11b.
Id.
Id.
MCL 769.10(l)(a) (emphasis added).
Emphasis added.
We do not quibble with the notion that the Legislature clearly set the maximum penalty for two convictions of violating SORA at 7 years. Implicit in defendant’s argument and the Court of Appeals’ opinion is the notion that, having set that penalty, the Legislature could not have intended to also allow a sentencing court to impose a 10.5 year maximum sentence. But as outlined in this opinion, it is clear that this is exactly what the Legiature intended. The Legislature was fully aware that sentence enhancement under the HOA is not mandatory, as vast discretion with regard to sentence enhancement is placed in the sentencing court and the prosecution. A sentencing court can exercise the option to not enhance a defendant’s sentence. See MCL 769.10(l)(a) (“[T]he court.... may place the person on probation or sentence the person to imprisonment for a maximum term that is not more than IV2 times [the applicable term].”) (emphasis added); People v Turski, 436 Mich 878 (1990). In order to seek sentence enhancement under the HOA, the prosecuting attorney must file a written notice of intent to do so. MCL 769.13. The prosecutor thus has discretion not to seek habitual-offender sentence enhancement. It is clear that the Legislature wanted to ensure that an offender violating SORA a second time would be subject to a maximum sentence of not less than 7 years, while vesting in the sentencing court and the prosecution discretion that could result in a maximum sentence of up to 10.5 years.
Bewersdorf, 438 Mich at 60. At the time, OUIL-3 was prohibited by MCL 257.625(6), as amended by 1987 PA 109, and punishable under MCL 257.902 as a 5-year felony. The offense is now operating a motor vehicle while intoxicated (OWI) and is a 5-year felony prohibited by MCL 257.625(9)(c).
People v Bewersdorf, 181 Mich App 430, 433; 450 NW2d 271 (1989), aff'd in part and rev’d in part 438 Mich 55 (1991).
Bewersdorf, 438 Mich at 68.
Id. at 69-70 (quotation marks and citation omitted).
Id. at 68. The OUIL provisions at issue in Bewersdorf differ from the SORA. provisions in that the underlying offenses in Bewersdorf were misdemeanors and SORA-1, SORA-2, and SORA-3 are all felonies. Defendant complains that his sentence is inappropriate because his SORA-1 conviction was used to support his SORA-2 conviction and as the predicate to enhance his sentence as a second-offense habitual offender. While defendant objects to this, he offers no statutory or legal analysis to support the contention that his claimed double enhancement is inappropriate. The critical point from Bewersdorf is that the OUIL provisions increased the punishment for each repeated offense, just as the SORA provisions do in the present case. In fact, defendant concedes that there is no error in enhancing a SORA-2 sentence under the habitual-offender provisions as long as the habitual-offender enhancement is based on a felony other than a SORA violation. Thus, to this extent, defendant agrees with our conclusion that MCL 28.729(1) sets forth separate, elevated offenses.
E.g., People v Eilola, 179 Mich App 315, 325; 445 NW2d 490 (1989) (holding that the habitual-offender provisions could be used to enhance a sentence for a conviction that constituted first-degree retail fraud because of a prior conviction, MCL 750.356c(2), as added by 1988 PA 20); People v Brown, 186 Mich App 350, 357; 463 NW2d 491 (1990) (reaffirming Eilola and extending it by holding that the sentence could be enhanced using the same conviction used to elevate the offense (answering a question left open in Eilola)); People v James, 191 Mich App 480, 481-482; 479 NW2d 16 (1991) (holding that the habitual-offender statutes and the statute imposing a mandatory minimum 5-year sentence for a second offense of criminal sexual conduct may be concur rently applied); People v Lynch, 199 Mich App 422, 423-424; 502 NW2d 345 (1993) (relying on Eilola and Bewersdorf and citing Broum to hold that the habitual-offender provision could enhance a sentence for a recidivist conviction of fleeing and eluding). See also People v Fetterley, 229 Mich App 511, 540-541; 583 NW2d 199 (1998) (“[W]here a defendant commits a controlled substances offense, but is not subject to the enhancement provisions of the Public Health Code because, although the defendant is an habitual offender, there are no prior controlled substance offenses, enhancement under the habitual offender provisions is permitted. Where the legislative scheme pertaining to the underlying offenses elevates the offense, rather than enhances the punishment, on the basis of prior convictions, both the elevation of the offense and the enhancement of the penalty under the habitual offender provisions is [sic] permitted.”) (citations omitted). But cf. People v Honeycutt, 163 Mich App 757, 760-763; 415 NW2d 12 (1987), in which the Court concluded that when a defendant has been convicted of felony-firearm (and the requisite underlying felony) and also found to be an habitual offender, the trial court must impose the mandatory two-year sentence for the felony-firearm conviction without enhancement by the HOA and then impose a sentence on the underlying felony with enhancement by the HOA, with the second sentence running consecutively to the felony-firearm sentence. While the felony-firearm statute creates a crime separate and distinct from the underlying felony, the felony-firearm statute mandates the imposition of a mandatory, determinate sentence, which would necessarily conflict with a trial court’s discretion to impose an indeterminate sentence under the HOA. Id. at 760. | [
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By order of September 5, 2014, the application for leave to appeal the November 26, 2013 judgment of the Court of Appeals was held in abeyance pending the decision in People v Lockridge (Docket No. 149073). On order of the Court, the case having been decided on July 29, 2015, 498 Mich 358 (2015), the application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Branch Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in Lockridge. On remand, the trial court shall follow the procedure described in Part VT of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied because we are not persuaded that the remaining questions presented should be reviewed by this Court. The motion to hold application in abeyance is denied as moot. We do not retain jurisdiction. | [
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On order of the Court, the application for leave to appeal the March 19, 2015 order of the Court of Appeals is considered. With regard to the defendant’s challenge to costs, leave to appeal is denied, because we are not persuaded that the question presented should be reviewed by this Court prior to the completion of the proceedings ordered by the Court of Appeals. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we order that, in addition to the proceedings ordered by the Court of Appeals, the Wayne Circuit Court shall also determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resen-tence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction. | [
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By order of November 24, 2015, the prosecuting attorney was directed to answer the application for leave to appeal the May 15, 2015 order of the Court of Appeals, and the defendant was invited to file a supplemental brief. On order of the Court, the answer and supplemental brief having been received, the application for leave to appeal is again considered. The defendant’s conditional guilty plea was agreed to by the prosecution and accepted by the trial court on the record. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Kent Circuit Court for further proceedings consistent with the terms of the plea and with this Court’s decision in People v Hartwick, 498 Mich 192 (2015). We do not retain jurisdiction. | [
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On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we vacate our order of September 16, 2015. The application for leave to appeal the December 18, 2014 judgment of the Court of Appeals is denied, because we are no longer persuaded that the questions presented should be reviewed by this Court. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals, and we remand this case to the Court of Appeals for reconsideration in light of Elher v Misra, 499 Mich 11 (2016). | [
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In lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Wayne Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. | [
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MCCORMACK, J.
In this case, we consider whether agreements between sophisticated businesses are void for failure of consideration and whether the noncom- pete provisions in these agreements are reasonable. Plaintiff, Innovation Ventures, LLC, has alleged a variety of tort and breach of contract claims against defendants, Liquid Manufacturing, LLC, K & L Development of Michigan, LLC, Eternal Energy, LLC, LXR Biotech, LLC, Peter Paisley, and Andrew Krause based on the defendants’ production of Eternal Energy and other energy drinks.
Contrary to the determination of the Court of Appeals, we conclude that the parties’ Equipment Manufacturing and Installation Agreement (EMI) and Nondisclosure Agreement were not void for failure of consideration. We nevertheless affirm the trial court’s grant of summary disposition to defendants for the claims against Krause, because there is no genuine issue of material fact on the question whether Krause breached the EMI or the Nondisclosure Agreement. Likewise, there is no genuine issue of material fact on the question whether K & L Development breached the EMI. Because questions of fact remain regarding whether K & L Development breached the Nondisclosure Agreement, however, we vacate the trial court’s grant of summary disposition regarding that claim and remand that claim to the trial court for further proceedings consistent with this opinion.
We also hold that a commercial noncompete provision must be evaluated for reasonableness under the rule of reason. We conclude that the Court of Appeals erred when it failed to evaluate under this standard the noncompete provision in the parties’ Termination Agreement. We leave undisturbed, however, the Court of Appeals’ determination that Liquid Manufacturing did not breach the Termination Agreement by producing Eternal Energy.
Accordingly, we reverse the Court of Appeals in part, affirm in part, and remand to the trial court for consideration of whether the noncompete provisions in the parties’ Nondisclosure Agreement and Termination Agreement are reasonable under the rule of reason, whether K & L Development breached the Nondisclosure Agreement, and whether Liquid Manufacturing breached the Termination Agreement with respect to its production of products other than Eternal Energy.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. AGREEMENTS BETWEEN THE PLAINTIFF AND DEFENDANTS K & L DEVELOPMENT AND KRAUSE
In 2007, the plaintiff engaged defendants Andrew Krause and K & L Development of Michigan (K & L Development) to design, manufacture, and install manufacturing and packaging equipment for the production of 5-Hour ENERGY at Liquid Manufacturing’s bottling plant. The parties operated under an oral agreement until April 27, 2009, when they memorialized their oral agreement in the written EMI. The EMI recitals referred to the defendants’ completed work on the production line installed in Liquid Manufacturing’s facility and the plaintiffs desire to engage the defendants in designing, manufacturing, and installing additional manufacturing equipment. The parties’ oral agreement did not include a confidentiality agreement or a noncompete provision; the parties added a confidentiality agreement and a noncompete provision when they memorialized their agreement in writing. As provided in the EMI, the parties were permitted to terminate the agreement at any time without cause with 14 days’ written notice.
On the same day the EMI was memorialized, the plaintiff and defendant K & L Development entered into an agreement titled Nondisclosure and Confidentiality Agreement (Nondisclosure Agreement). Pursu ant to the Nondisclosure Agreement, K & L Development agreed not to use or disclose information obtained previously, currently, or prospectively through its business relationship with the plaintiff. K & L Development also agreed to obtain a confidentiality agreement from each of its employees.
Shortly after entering the EMI and the Nondisclosure Agreement, the plaintiff terminated the EMI, which was permitted by the EMI’s explicit terms with 14 days’ notice. K & L Development subsequently stopped engaging in business in 2010.
B. AGREEMENTS BETWEEN THE PLAINTIFF AND LIQUID MANUFACTURING
In March 2007, the plaintiff contracted with defendant Liquid Manufacturing, LLC (Liquid Manufacturing), to produce and package 5-hour ENERGY. The parties subsequently amended this agreement, executing an Amended Manufacturing Agreement, which required Liquid Manufacturing to acquire several pieces of production equipment necessary to bottle 5-hour ENERGY. Liquid Manufacturing owned some of the equipment, and the plaintiff owned the remain der of the equipment. The Amended Manufacturing Agreement also provided the plaintiff with an option to purchase the production equipment acquired and owned by Liquid Manufacturing.
In April 2010, the plaintiff terminated the Amended Manufacturing Agreement with Liquid Manufacturing. The plaintiff, as provided by the Agreement, then exercised its option to purchase the production equipment that Liquid Manufacturing had acquired to manufacture 5-hour ENERGY. The parties memorialized the termination of their business relationship and the plaintiffs purchase of Liquid Manufacturing’s production equipment in a new agreement titled Agreement to Terminate and Exercise Purchase Option (Termination Agreement). The Termination Agreement contained several nondisclosure and noncompete provisions, and it also explicitly granted Liquid Manufacturing permission to manufacture 36 Permitted Products using the equipment. As part of the Termination Agreement, Liquid Manufacturing was required to obtain from each company associated with a Permitted Product a nondisclosure agreement stating that the company would not disclose that its product was bottled using the same equipment that had been used to bottle the plaintiffs products. The 36 Permitted Products were identified in the Approved Manufactur er’s List, which was appended to the Termination Agreement. The plaintiffs permission to manufacture these products, however, could be revoked if Liquid Manufacturing violated any provision of the Termination Agreement and failed to cure the violation within 30 days.
C. Formation of eternal energy and lxr biotech
In September 2010, the defendants, Andrew Krause, former managing member of K & L Development, and Peter Paisley, CEO and President of Liquid Manufacturing, formed Eternal Energy, LLC, to produce the energy shot, Eternal Energy. On September 20, 2010, Liquid Manufacturing sought the plaintiffs permission to add Eternal Energy to the Approved Manufacturer’s List. On the following day, the plaintiff provided its permission to add Eternal Energy to the Approved Manufacturer’s List. Andrew Krause and Peter Paisley then formed LXR Biotech, LLC, to market and distribute Eternal Energy.
From September 2010 until March 2011, Liquid Manufacturing used the plaintiffs equipment to bottle Eternal Energy. Liquid Manufacturing purchased the equipment back from the plaintiff in March 2011 and continued production of Eternal Energy. On January 27, 2012, the plaintiff informed Liquid Manufacturing that it had breached the Termination Agreement by producing Eternal Energy and by failing to provide the plaintiff with the necessary nondisclosure agreement from Eternal Energy, LLC, in which it agreed not to disclose that its product was bottled on the same equipment used to bottle 5-hour ENERGY. The plaintiff demanded that Liquid Manufacturing cease disclosing the plaintiffs confidential information and that it provide the plaintiff with the necessary nondisclosure agreement from Eternal Energy, LLC. Liquid Manufacturing provided the nondisclosure agreement from Eternal Energy, LLC, within the Termination Agreement’s prescribed 30-day window to cure any breach.
D. PROCEDURAL HISTORY
On January 27, 2012, the same day that the plaintiff informed Liquid Manufacturing that it had breached the Termination Agreement, the plaintiff instituted the instant action, alleging several tort and breach of contract claims against the defendants. The plaintiff alleged that defendants Liquid Manufacturing, Peter Paisley, K & L Development, and Andrew Krause wrongfully shared and used confidential information and violated their noncompete agreements by manufacturing, marketing, and distributing Eternal Energy and other energy drinks. The plaintiff sought a temporary restraining order to stop Liquid Manufacturing’s production of Eternal Energy and sought emergency discovery. The trial court granted the temporary restraining order and the request for emergency discovery, and the court also ordered Liquid Manufacturing to allow the plaintiff to inspect its facility to determine whether it was manufacturing energy shots not approved by the plaintiff or included in the Approved Manufacturer’s List. On January 30, 2012, and February 6, 2012, the plaintiff inspected Liquid Manufacturing’s facility and discovered evidence that Liquid Manufacturing had produced Eternal Energy as well as a number of unapproved products. The trial court lifted the temporary restraining order after determining that there was no potential for irreparable harm. The plaintiff subsequently filed an amended complaint alleging additional violations based on the defendants’ production of additional energy drinks.
The defendants moved for summary disposition under MCR 2.116(C)(8) and MCR 2.116(0(10). The trial court initially denied the defendants’ motion on all claims except the plaintiffs claims against Krause and Paisley of tortious interference. The court also allowed discovery to proceed. After the plaintiff sought additional discovery on third parties, the defendants sought to stay discovery while the trial court ruled on their renewed motions for summary disposition on the remaining claims. The trial court stayed discovery and subsequently granted summary disposition to the defendants on the remaining claims.
Addressing the breach of contract claims against K & L Development and Krause, the trial court held that there was no genuine issue of material fact on the question whether the defendants breached the EMI, because the EMI did not have a noncompete provision preventing direct competition with the plaintiff, and the EMI did not protect information obtained before the EMI was signed. It farther held that the Nondisclosure Agreement between the plaintiff and K & L Development failed for lack of consideration. In the alternative, the trial court held that the noncompete provision in the Nondisclosure Agreement was unenforceable because it was unreasonable.
The trial court further held that there was no genuine issue of material fact on the question whether Liquid Manufacturing breached the Termination Agreement by producing Eternal Energy. It reasoned that the plaintiff had expressly approved Liquid Manufacturing’s production of Eternal Energy and that the only breach alleged—failure to provide the plaintiff with the nondisclosure agreement from Eternal Energy—was timely cured when Liquid Manufacturing provided the plaintiff with Eternal Energy’s executed nondisclosure agreement.
The trial court also concluded that Liquid Manufacturing did not breach the confidentiality provisions of the Termination Agreement because the plaintiff allowed Liquid Manufacturing to produce 36 different products using the same equipment used to manufacture 5-hour ENERGY, which effectively waived any confidentiality concerning the manufacturing process. The court reasoned that because the plaintiff authorized the alleged disclosure to Eternal Energy, Liquid Manufacturing could not have breached the agreement by providing information to Eternal Energy, LLC, or LXR Biotech, LLC. The trial court also noted that the plaintiffs claim that Liquid Manufacturing breached the confidentiality provisions of the Termination Agreement could not be sustained because the plaintiff failed to take any precautions to prevent Krause and K & L Development, the designers of the equipment, from disclosing their knowledge about the bottling equipment placed in Liquid Manufacturing’s facilities. Finally, the trial court held that the noncompete provision in the Termination Agreement between the plaintiff and Liquid Manufacturing was unreasonable, and therefore unenforceable, because the plaintiff did not impose the provision to protect a legitimate business interest. The court reasoned that because the only intent of the Termination Agreement was to prevent competition, not to prevent an unfair advantage, the agreement was invalid on its face as an unreasonable restraint of trade.
The Court of Appeals affirmed the trial court’s grant of summary disposition to defendants on all of the plaintiffs claims. The panel affirmed the trial court’s grant of summary disposition of the breach of contract claims against K & L Development on different grounds. The Court further held that the EMI and the Nondisclosure Agreement were unenforceable for a failure of consideration because the plaintiff terminated the parties’ business/employment relationship within two weeks of signing the Agreements and without providing K & L Development and Krause what they were promised under the Agreements.
The Court of Appeals also affirmed the trial court’s grant of defendants’ motions for summary disposition of the breach of contract claims against Liquid Manufacturing and Paisley. Like the trial court, the Court of Appeals reasoned that there was no genuine issue of material fact on the question whether Liquid Manufacturing breached the Termination Agreement by manufacturing Eternal Energy; the plaintiff expressly approved the bottling of Eternal Energy, and Liquid Manufacturing cured its breach of the Termination Agreement by providing the plaintiff with the executed nondisclosure agreement from Eternal Energy, LLC, within the time specified by the Termination Agreement. The Court also affirmed the trial court’s grant of summary disposition to Liquid Manufacturing for its production of any product, reasoning that the noncom-pete provision in the Termination Agreement was unreasonable and, therefore, unenforceable. The Court of Appeals evaluated the reasonableness of the parties’ noncompete provision in the Termination Agreement under the standard governing noncompete provisions between an employer and employee as articulated in St Clair Med, PC v Borgiel, 270 Mich App 260, 265; 715 NW2d 914 (2006), and MCL 445.774a. The Court also held that Liquid Manufacturing did not violate the confidentiality agreement provisions in the Termination Agreement because the plaintiff expressly agreed to allow Liquid Manufacturing to produce 36 Permitted Products on the bottling equipment. Although the trial court had not addressed Paisley’s personal liability, the Court of Appeals held that Paisley was not personally liable under the Termination Agreement.
We granted leave to consider two questions: (1) whether the parties’ Nondisclosure Agreement and EMI are void due to failure of consideration, and (2) whether the noncompete provisions in the Termination Agreement and the Nondisclosure Agreement are enforceable. Innovation Ventures, LLC v Liquid Mfg, LLC, 498 Mich 859 (2015).
II. ANALYSIS
We review de novo a trial court’s grant of summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). While the trial court did not state whether it was granting the defendants’ motion for summary disposition under MCR 2.116(C)(8) or MCR 2.116(0(10), we treat its grant of summary disposition as under MCR 2.116(0(10) because it considered in formation beyond the pleadings. “Amotion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden, 461 Mich at 120. When evaluating a motion for summary disposition under MCR 2.116(C)(10), “a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties ... in the light most favorable to the party opposing the motion.” Id. “Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.” Id.
We review de novo, as a question of law, the proper interpretation of a contract. Miller-Davis Co v Ahrens Const, Inc, 495 Mich 161, 172; 848 NW2d 95 (2014). “Absent an ambiguity or internal inconsistency, contractual interpretation begins and ends with the actual words of a written agreement.” Universal Underwriters Ins Co v Kneeland, 464 Mich 491, 496; 628 NW2d 491 (2001). When interpreting a contract, our primary obligation “is to give effect to the parties’ intention at the time they entered into the contract.” Miller-Davis Co, 495 Mich at 174. To do so, we examine “the language of the contract according to its plain and ordinary meaning.” Id. “If the contractual language is unambiguous, courts must interpret and enforce the contract as written . . . .” In re Egbert R Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008). Reasonableness of a noncompete agreement is inherently fact-specific, see, e.g., Woodward v Cadillac Overall Supply Co, 396 Mich 379, 391; 240 NW2d 710 (1976), but “[t]he reasonableness of a noncompetition provision is a question of law when the relevant facts are undisputed.” Coates v Bastían Bros, Inc, 276 Mich App 498, 506; 741 NW2d 539 (2007); see also Follmer, Rudzewicz & Co, PC v Kosco, 420 Mich 394, 408; 362 NW2d 676 (1984) (“The courts thus must scrutinize such agreements and enforce them only to the extent they are reasonable.”).
A. CONSIDERATION
We turn first to the Court of Appeals’ determination that the EMI and the Nondisclosure Agreement were unenforceable for failure of consideration. “A valid contract requires five elements: (1) parties competent to contract, (2) a proper subject matter, (3) legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation.” AFT Mich v Michigan, 497 Mich 197, 235; 866 NW2d 782 (2015). “To have consideration there must be a bargained-for exchange”; “[t]here must be a benefit on one side, or a detriment suffered, or service done on the other.” Gen Motors Corp v Dep’t of Treasury, 466 Mich 231, 238-239; 644 NW2d 734 (2002) (quotation marks and citation omitted). Generally, courts do not inquire into the sufficiency of consideration: “[a] cent or a pepper corn, in legal estimation, would constitute a valuable consideration.” Id. at 239 (quotation marks and citation omitted; alteration in original).
As an initial matter, the trial court did not make any findings about a failure of consideration, but instead held that the EMI and the Nondisclosure Agreement were not supported by valid consideration. We disagree; both the EMI and the Nondisclosure Agreement were supported by sufficient consideration. According to the EMI, Krause and K & L Development were to design, manufacture, and assemble production equipment for the plaintiff to place in Liquid Manufacturing’s facility. Once the manufacturing line placed in Liquid Manufacturing’s facility was functioning properly, Krause and K & L Development were to install a second line in the plaintiffs Indiana facility according to the specifications outlined by the plaintiff. In exchange, the plaintiff was to pay Krause and K & L Development in installments proportionate to the value of their work. In fact, at the time the parties memorialized their oral agreement in the EMI, much of the work contemplated in the EMI had already been completed by Krause and K & L Development. Similarly, there was sufficient consideration to support the Nondisclosure Agreement between the plaintiff and K & L Development. In exchange for the plaintiffs acknowledgment that K & L Development wished to continue doing business with the plaintiff, K & L Development agreed to the confidentiality and non-compete agreements contained in the Nondisclosure Agreement.
In contrast to a lack of consideration, which relates to the adequacy of consideration at the time of the contract’s formation, failure of consideration relates to the parties’ performance under the contract. Failure of consideration is “[a] seriously deficient contractual performance that causes a contract’s basis or inducement to cease to exist or to become worthless.” Black’s Law Dictionary (10th ed). In general, failure of consideration is an affirmative defense, and the party asserting it bears the burden of proof. See MCR 2.111(F)(3).
While we have had few opportunities to address this doctrine, generally we have recognized a failure of consideration when one party has committed a first, substantial breach of a contract and sought to maintain an action against the other party for a subsequent failure to perform. See, e.g., McCarty v Mercury Metalcraft Co, 372 Mich 567, 573; 127 NW2d 340 (1964); Kunzie v Nibbelink, 199 Mich 308, 315-316; 165 NW 722 (1917). “[W]hen there is a failure to perform a substantial part of the contract or one of its essential items,” the courts have permitted the parties to rescind the contract. Rosenthal v Triangle Dev Co, 261 Mich 462, 463; 246 NW 182 (1933). But failure of consideration does not void a contract when the party seeks to void the contract based on an event explicitly anticipated in the contract. See, e.g., Abbate v Shelden Land Co, 303 Mich 657, 665-666; 7 NW2d 97 (1942).
We disagree with the Court of Appeals’ holding that the EMI and the Nondisclosure Agreement were void for a failure of consideration. The EMI and the Nondisclosure Agreement were not void for a failure of consideration because the parties exercised their rights as plainly contemplated by the contract. To the extent that the EMI and the Nondisclosure Agreement contemplated an ongoing business relationship, the EMI also contemplated the termination of the Agreement with 14 days’ notice, at any time, without cause. A party seeking to void a contract on the basis of an event anticipated by the contract cannot claim failure of consideration. See id. Because the plaintiff acted within the rights explicitly provided by the contract, the defendants may not now claim failure of consideration. Accordingly, we reverse the portion of the Court of Appeals’ opinion holding that the EMI and the Nondisclosure Agreement were void for failure of consideration.
B. RULE OF REASON
We turn next to the Court of Appeals’ analysis of the noncompete provision in the parties’ Termination Agreement. The plaintiff contends that the Court of Appeals applied the wrong standard to determine whether the noncompete provision was unreasonable. We agree. The Court of Appeals erred by applying the standard articulated in MCL 445.774a, which is the proper framework to evaluate the reasonableness of noncompete agreements between employees and employers. Instead, the Court should have applied the rule of reason to evaluate the parties’ noncompete agreement.
The Michigan Antitrust Reform Act (MARA) governs the contracts at issue in this case. MCL 445.771 et seq. MCL 445.772, which governs general agreements, provides that “[a] contract, combination, or conspiracy between 2 or more persons in restraint of, or to monopolize, trade or commerce in a relevant market is unlawful.” This statutory language is interpreted in light of the long tradition of holding “that a contract would not be construed as in restraint of trade unless the restraint was unreasonable.” Staebler-Kempf Oil Co v Mac’s Auto Mart, Inc, 329 Mich 351, 356-357; 45 NW2d 316 (1951), citing Standard Oil Co of New Jersey v United States, 221 US 1; 31 S Ct 502; 55 L Ed 619 (1911); People ex rel Attorney General v Detroit Asphalt Paving Co, 244 Mich 119; 221 NW 122 (1928).
The only statutory guidance MARA provides for assessing the reasonableness of a noncompete provision is contained in MCL 445.774a. MCL 445.774a sets forth the factors a court must consider to assess whether a noncompete agreement between an employer and an employee is reasonable. MCL 445.774a; see also Rory v Continental Ins Co, 473 Mich 457, 475 n 32; 703 NW2d 23 (2005). MCL 445.774a does not address the proper framework for evaluating a non-compete agreement between businesses. The Court of Appeals relied on St Clair Med, 270 Mich App 260, and Coates, 276 Mich App 498, two cases involving noncom-pete agreements between employers and their employees, to hold that the noncompete provision in the Termination Agreement in this case should be evaluated under the same factors identified in MCL 445.774a. Neither case, therefore, is instructive here. But while MARA does not address the standard for evaluating a noncompete agreement between two business entities, the statute provides general guidance about where courts should look in the absence of specific rules. MCL 445.784(2) instructs courts to look to federal interpretation of comparable statutes:
It is the intent of the [LJegislature that in construing all sections of this act, the courts shall give due deference to interpretations given by the federal courts to comparable antitrust statutes, including, without limitation, the doctrine of per se violations and the rule of reason.
In general, federal courts have assessed noncompete agreements between two commercial entities under the rule of reason. See, e.g., Perceptron, Inc v Sensor Adaptive Machines, Inc, 221 F3d 913, 919 (CA6, 2000) (“The legality of noncompetition covenants ancillary to a legitimate transaction must be analyzed under the rule of reason.”) (quotation marks and citation omitted); County Materials Corp v Allan Block Corp, 502 F3d 730, 735 (CA 7, 2007) (holding that a noncompete agreement between two companies was required to be evaluated under the rule of reason). When applying the rule of reason, a court must “tak[e] into account a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint’s history, nature, and effect.” State Oil Co v Khan, 522 US 3, 10; 118 S Ct 275; 139 L Ed 2d 199 (1997). The rule of reason has been articulated as
whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily con sider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences. Bd of Trade of City of Chicago v United States, 246 US 231, 238; 38 S Ct 242; 62 L Ed 683 (1918).
We conclude that the parties’ noncompete agreements should have been evaluated under the rule of reason.
1. BREACH OP CONTRACT CLAIMS AGAINST K & L DEVELOPMENT AND KRAUSE
Because we hold that the EMI and the Nondisclosure Agreement were not void for failure of consideration, we must determine whether K & L Development and Krause violated the noncompete and confidentiality provisions in the EMI, whether K & L Development violated the noncompete and confidentiality provisions in the Nondisclosure Agreement, and whether the noncompete provision in the Nondisclosure Agreement is a reasonable restraint of trade. We affirm the trial court’s grant of summary disposition of the plaintiffs breach of contract claims against Krause without evaluating the reasonableness of the noncompete provision in the EMI because there is no genuine issue of material fact on the question whether Krause breached the confidentiality and nondisclosure provisions contained in the EMI. With respect to the breach of contract claims against K & L Development, we affirm the trial court’s grant of summary disposition regarding any alleged breaches of the EMI, but we remand to the trial court the claim that K & L Development breached the Nondisclosure Agreement because we cannot say, as a matter of law, that K & L Development did not breach the Nondisclosure Agreement.
We first address the confidentiality and noncompete provisions in the EMI between the plaintiff and K & L Development and the plaintiff and Krause. The plaintiff alleges that K & L Development and Krause violated the EMI by sharing confidential information with Eternal Energy, LLC, and by producing Eternal Energy. While the Court of Appeals did not address whether K & L Development and Krause breached the parties’ agreements, the trial court held that there was no genuine issue of material fact on the question whether Krause breached the EMI. We affirm the trial court’s reasoning and hold that the same reasoning applies to K & L Development’s liability under the EMI. The EMI defined confidential information as information obtained by the parties after the execution of the EMI. Because the EMI explicitly excluded from its definition of confidential information any information obtained by K & L Development and Krause before the execution of the EMI, K & L Development and Krause may only be liable for violating the EMI with regard to information obtained after the execution of the EMI and shared with Eternal Energy, LLC. There is no allegation that Krause or K & L Development obtained confidential information after April 27, 2009, the date the EMI was executed.
Similarly, the noncompete provision in the EMI only prohibited K & L Development and Krause from designing and producing bottling equipment. It did not prohibit the parties from producing a competing energy drink. There is no evidence in the record that K & L Development or Krause designed or produced bottling equipment in violation of the EMI’s noncom-pete provision. Instead, the plaintiff premises its allegations against K & L Development and Krause entirely on their production of Eternal Energy on the equipment that they designed, produced, and installed in Liquid Manufacturing’s facility. But using that equipment to produce a competing energy drink did not constitute a violation of the noncompete provision. Accordingly, there is no genuine issue of material fact on the question whether K & L Development and Krause breached either the confidentiality or the non-compete provisions in the EMI.
While defendants argue that they are entitled to a ruling as a matter of law that K & L Development did not breach the Nondisclosure Agreement, there are insufficient grounds for this Court to conclude that no genuine issue of material fact exists on that question. K & L Development allegedly stopped operating in mid-2010, but it is unclear from the record precisely when K & L Development stopped conducting business. The plaintiff has alleged that K & L Development breached the Nondisclosure Agreement by producing Eternal Energy beginning in September 2010, but it is possible that K & L Development was no longer operating after the formation of Eternal Energy, LLC. If that is the case, K & L Development could not have breached the Nondisclosure Agreement by producing Eternal Energy or by sharing any confidential information with Eternal Energy. Nevertheless, given the lack of complete discovery in this case, we cannot say that no genuine issue of material fact exists on that question, and we remand this matter to the trial court for further proceedings consistent with this opinion.
2. BREACH OF CONTRACT CLAIMS AGAINST LIQUID MANUFACTURING
While the Court of Appeals erred by not evaluating the noncompete provision in the Termination Agreement under the rule of reason, it is unnecessary to evaluate whether the noncompete provision is reasonable with respect to Liquid Manufacturing’s production of Eternal Energy because the plaintiff has abandoned any claim that Liquid Manufacturing breached the Termination Agreement by producing Eternal Energy. Although the plaintiff made these claims in both the trial court and the Court of Appeals, the plaintiff failed to present to this Court any argument on these breach issues, opting instead to make conclusory statements in its application for leave to appeal and in its briefs to this Court. “It is not sufficient for a party ‘simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.’ ” Wilson v Taylor, 457 Mich 232, 243; 557 NW2d 100 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959); Tyra v Organ Procurement Agency of Mich, 498 Mich 68, 88-89; 869 NW2d 213 (2015). The defendants even highlighted the plaintiffs failure to seek leave to appeal on these issues in their response to the plaintiffs application by noting that the plaintiff had abandoned this claim. Despite having an opportunity to rebut this claim in its reply brief, plaintiff remained silent. Irrespective of the merits of the claim, we do not address it because any argument that Liquid Manufacturing breached the Termination Agreement with respect to Eternal Energy has been abandoned. We thus leave undisturbed the Court of Appeals’ holding affirming summary disposition of these claims.
There is, however, a genuine issue of material fact regarding whether Liquid Manufacturing breached the Termination Agreement by producing other products. Accordingly, we remand to the trial court the plaintiffs claim that Liquid Manufacturing breached the Termination Agreement with respect to its production of other energy drinks. The trial court should consider whether the noncompete provision in the Termination Agreement is reasonable under the rule of reason and whether Liquid Manufacturing violated the Termination Agreement by producing energy drinks other than Eternal Energy.
III. CONCLUSION
We conclude that the parties’ EMI and Nondisclosure Agreement were not void for failure of consideration. The agreements were supported by sufficient consideration and sufficient performance to render them enforceable. We also conclude that commercial noncompete agreements should be evaluated under the rule of reason. Because there is no genuine issue of material fact on the question whether defendants Krause and K & L Development breached the EMI, or that defendant Krause breached the Nondisclosure Agreement, we affirm the trial court’s grant of summary disposition to the defendants on these claims. We leave undisturbed the Court of Appeals’ holding that defendant Liquid Manufacturing did not breach the Termination Agreement by producing Eternal Energy.
We remand, however, the remaining claims to the trial court to consider whether the noncompete provisions in the parties’ Nondisclosure Agreement and Termination Agreement are reasonable under the proper standard, whether K & L Development breached the Nondisclosure Agreement, and whether Liquid Manufacturing violated the Termination Agreement by producing products other than Eternal Energy.
Young, C.J., and Markman, Zahra, Viviano, Bernstein, and Larsen, JJ., concurred with McCormack, J.
Andrew Krause was the managing member of K & L Development. He is a founding member of Eternal Energy, LLC, and LXR Biotech, LLC, and is the president of LXR Biotech, LLC.
While the EMI and the Nondisclosure Agreement described future work, they were signed after the parties had completed nearly all the work contemplated in the EMI, including the second production line.
The EMI defined exceptions to confidential information as follows:
9.4 Confidential Information does not include (i) information in the public domain; (ii) information legally acquired from a third party not bound to an obligation of confidentiality; (iii) information legally known to Contractor prior to the date hereof; and (iv) information required to be disclosed pursuant to a valid and enforceable subpoena or court order issued by a court of competent jurisdiction.
The EMI also contained the following noncompete provision:
10. Exclusivity. During the term of this Agreement and for a period of five years thereafter, within the United States, Canada, Mexico or the EU, Contractor shall not design, manufacture, produce or participate directly or indirectly in the design or manufacture of any product similar to the Equipment with the same or similar purpose of bottling one to four ounce bottles of liquid energy shots. This exclusivity restriction on Contractor is in addition to any and all other restrictions imposed on Contractor pursuant to the applicable copyright laws of the United States and other provisions contained in this Agreement (e.g., paragraph 9. Non-Disclosure of Confidential Information). The Parties specifically acknowledge and agree that this exclusivity provision was fully negotiated at arm’s length, and takes into consideration many factors, the result of which was to create reasonable time and geographic limitations, and to clearly define the scope of this provision. The Parties further agree that the terms and provisions of section 9 above, this section 10 and section 11 below .. . constitute binding stipulations of fact for purposes of Michigan Court Rules, Rule 2.116(A)(1) and/or (2).
Andrew Krause signed the Nondisclosure Agreement in his capacity as the managing member of K & L Development. He was not party to the Nondisclosure Agreement in his individual capacity. We leave undisturbed the trial court’s finding that Krause was not individually liable under the Nondisclosure Agreement because he was not bound by it.
The plaintiff argues for the first time in this Court that the Nondisclosure Agreement is a modification of the EMI rather than a separate agreement. We disagree. The plaintiff is correct that in general, “contracts made at [the] same time, between [the] same parties, with reference to [the] same subject matter, are to be construed together.” Savercool v Farwell, 17 Mich 307, 317 (1868). Despite being signed at the same time, the EMI and the Nondisclosure Agreement were signed by different parties and referred to different subject matter. Moreover, the EMI and the Nondisclosure Agreement each contain integration clauses, limiting the ability of the parties to modify the agreements.
Although the parties dispute when the plaintiff terminated the EMI, there is no dispute that K & L Development and Krause were provided with the requisite 14 days’ notice.
Defendant Peter Paisley is the President and CEO of Liquid Manufacturing and a founding member of Eternal Energy, LLC, and LXR Biotech, LLC. The Court of Appeals held that Paisley signed the Termination Agreement in his official capacity and was not individually liable under the Agreement. Since the plaintiff has not challenged the Court of Appeals’ holding, we do not upset its decision. Paisley is not individually liable because he signed the Agreement in his capacity as a corporate officer. See, e.g., Wright v Drury Petroleum Corp, 229 Mich 542, 544-545; 201 NW 484 (1924); Archbold v Indus Land Co, 264 Mich 289, 290-291; 249 NW 858 (1933).
The Termination Agreement granted Liquid Manufacturing the option to purchase the equipment back from the plaintiff, which it exercised in March 2011. The noncompete provision, which prohibited Liquid Manufacturing from producing non-Permitted Products on the equipment for three years, was not affected by Liquid Manufacturing’s purchase of the equipment.
The plaintiff alleged Liquid Manufacturing was producing E6, Quick Energy, Quencher, 9 Hour Empower, and Perfectly Petite. It is undisputed that these energy drinks were never added to the Approved Manufacturer’s List.
The plaintiff did not appeal the portion of the Court of Appeals’ decision affirming the trial court’s grant of summary disposition to defendants of the plaintiffs claims of tortious interference with contract and business relations, civil conspiracy, statutory/common-law conversion, fraud in the inducement, and declaratory relief, and therefore we do not address these claims.
For example, in Sharrar v Wayne Sav Ass’n, 246 Mich. 225; 224 NW 379 (1929), we held that when subscription fees were collected in exchange for the establishment of a local branch, the failure to establish the local branch would constitute a failure of consideration. We noted that when “the establishment of the branch constituted a controlling inducement for the subscription,” failure to establish the branch, in breach of the agreement, was a substantial failure of consideration. Id. at 229.
Similarly, in Gottesman v Rheinfrank, 303 Mich 153; 5 NW2d 701 (1942), we held that when a contractor failed to fulfill a promise to remedy defects in a house constructed by the contractor, the purchaser could rescind the contract for failure of consideration.
In fact, much of the work contemplated in the agreements had already been completed. It is unclear from the record whether the plaintiff paid K & L Development and Krause for their services. But it is ultimately irrelevant to our analysis. Given that K & L Development and Krause already completed a significant amount of the work contemplated in the agreements, any claim that the plaintiff failed to pay would be properly brought as a breach of contract claim, rather than as a failure of consideration defense. See, e.g., Restatement Contracts, 2d, §235.
The Court of Appeals’ reliance on Adell Broadcasting Corp v Apex Media Sales, Inc, 269 Mich App 6; 708 NW2d 778 (2005), and several extra-jurisdictional authorities to conclude that terminating a business relationship shortly after entering an agreement resulted in a failure of consideration was erroneous. In Adell Broadcasting, the Court of Appeals held that the defendants’ breach of contract claim was the appropriate vehicle, not failure of consideration, when the parties’ business relationship continued, but the plaintiff failed to pay the defendants’ outstanding commissions. Id. at 14. And the extra-jurisdictional authorities cited by the Court of Appeals are distinguishable because each case involved at-will employment relationships, not contracts between sophisticated business entities as in this case. See, e.g., Summits 7, Inc v Kelly, 178 Vt 396, 405; 886 A2d 365 (2005) (holding that continued employment is sufficient consideration to support a restrictive covenant not to compete entered after at-will employment has started); Brown & Brown, Inc v Mudron, 379 Ill App 3d 724, 729; 887 NE2d 437 (2008) (holding that a restrictive covenant not to compete will not be enforced against an at-will employee unless the employee has continued employment for a substantial period of time). We decline to address in this case whether failure of consideration applies to at-will employees who sign a noncompete agreement after at-will employment has started.
MARA was enacted by 1984 PA 274, effective March 29, 1985, in an effort to create uniformity in antitrust legislation among the states. MARA was patterned after the Uniform State Antitrust Act promulgated by the National Conference of Commissioners on Uniform State Laws in 1973. See MCLA 445.771 et seq., Michigan prefatory note, and MCLS 445.771 et seq., Michigan prefatory note. See also Compton v Joseph Lepak, DDS, PC, 154 Mich App 360, 366 n 2; 397 NW2d 311 (1986).
MCL 445.772 is the corollary to § 1 of the Sherman Antitrust Act. See 15 USC 1 (“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”).
MCL 445.774a provides in relevant part:
(1) An employer may obtain from an employee an agreement or covenant which protects an employer’s reasonable competitive business interests and expressly prohibits an employee from engaging in employment or a line of business after termination of employment if the agreement or covenant is reasonable as to its duration, geographical area, and the type of employment or line of business. To the extent any such agreement or covenant is found to be unreasonable in any respect, a court may limit the agreement to render it reasonable in light of the circumstances in which it was made and specifically enforce the agreement as limited.
Because the Court of Appeals held that the EMI and the Nondisclosure Agreement were void for failure of consideration, it did not review the trial court’s holding that the noncompete provision in the Nondisclosure Agreement was unreasonable and, therefore, unenforceable.
Similarly, while this Court has not addressed this question since MARA was enacted, before that time we regularly evaluated commercial noncompete agreements under the rule of reason. See, e.g., Staebler-Kempf Oil Co, 329 Mich at 357 (holding that a noncompete provision in a deed to sell a retail gasoline station was reasonable under the rule of reason); Hubbard v Miller, 27 Mich 15, 19-20 (1873) (holding that a contract restraining trade should be evaluated under the rule of reason).
In Bristol Window & Door, Inc v Hoogenstyn, 250 Mich App 478; 650 NW2d 670 (2002), the Court of Appeals held that the rule of reason should be used to evaluate a noncompete agreement between a business and independent contractors. The Court of Appeals properly identified and reasoned that MCL 445.772 codified the rule of reason, despite failing to refer to MCL 445.784(2) or to evaluate whether federal courts applied the rule of reason under comparable statutes. Id. at 492, 497-498.
While the Court of Appeals did not evaluate the reasonableness of the noncompete provision in the Nondisclosure Agreement, the trial court held that the noncompete provision was unenforceable. We vacate that holding and remand to the trial court to consider whether the noncompete provisions in the Nondisclosure Agreement and the Termination Agreement were reasonable under the proper standard.
As noted earlier, Krause only signed the Nondisclosure Agreement in his capacity as a managing member of K & L Development. We do not disturb the trial court’s finding that Krause is not individually liable under the Nondisclosure Agreement.
In their answer to the plaintiffs application for leave, the defendants argued, “Plaintiff has abandoned all other issues and claims. Thus, the Court of Appeals should be affirmed as to summary disposition of Plaintiffs other claims, including alleged breaches of the confidentiality provisions of the agreements among the parties, tortious interference, conspiracy, unjust enrichment, conversion, and fraud.”
The Court of Appeals also held that the plaintiff abandoned any claim that the noncompete provision could be reformed in a manner that would be reasonable. Because we remand to the trial court to determine whether the noncompete provision is reasonable, the plaintiff may raise any claims that the noncompete provision may be reformed in a manner to make it reasonable. | [
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Zahra, J.
(dissenting). I respectfully dissent. I believe the overwhelming record evidence supports the prosecution’s application for leave to appeal. Despite repeated directions to the contrary, the trial judge, Judge James A. Callahan, continues to rely on orders in unrelated cases to render rulings entirely inconsistent with the record evidence. Judge Callahan apparently fails to appreciate when an order of this Court constitutes binding precedent. I would grant leave.
I. FACTS OF THE UNDERLYING CASE
Defendant first broached an alibi claim before jury selection by informing Judge Callahan that he “was somewhere else when this incident happened” and that “[t]his is the first dialogue I had with my attorney, so she didn’t know about the alibi witnesses I have and the evidence I have.” Defendant asked for an opportunity to present his witnesses and evidence so that he could receive a fair trial. Defense counsel, attorney Cena Colbert White, addressed Judge Callahan and stated that “[w]ith respect to the alibi notice that he’s indicating to me, I received notice for the first time regarding an alibi at 10:06 this morning.” White added that she had spoken to defendant at the jail and during court appearances multiple times. Judge Callahan expressed his belief in counsel’s version of the events and the trial proceeded. A jury convicted defendant of unarmed robbery and first-degree home invasion, and he was sentenced as a fourth-offense habitual offender to 15 to 30 years’ imprisonment for the home invasion conviction and 5 to 15 years’ imprisonment for the unarmed robbery conviction.
Pursuant to an order issued by the Court of Appeals, Judge Callahan held an evidentiary hearing on defendant’s claim of ineffective assistance of counsel. White testified that she had visited defendant at the jail on May 16, July 2, July 12, and August 24, 2012, and that defendant was extremely involved in the development of his defense theory, which was misidentification, based on the intruder’s wearing a mask. White denied that defendant provided information about potential alibi witnesses before trial. Indeed, she testified that one of defendant’s alleged alibi witnesses, Jeanetta Harris, had retained White’s services for defendant, but never told White that she was with defendant at the time of the crime. White testified that she first learned of a potential alibi defense on the first day of trial, at which time defendant told her that he was at his father’s house when the crime was committed.
White also testified that during her July 2,2012 visit with defendant, defendant told her that the complainant sold marijuana and that he kicked in the complainant’s door to steal the complainant’s drug proceeds. White also presented notes taken during that interview, which had been signed by defendant and corroborated her testimony.
Judge Callahan, despite having previously indicated on the record that he believed White’s claim that defendant had first broached an alibi defense immediately before trial, and despite clear evidence that defendant had lied when claiming at that time “[t]his is the first dialogue I had with my attorney, so she didn’t know about the alibi witnesses I have and the evidence I have,” concluded that White should have somehow gleaned the availability of defendant’s alibi witnesses. Judge Callahan also concluded that the alibi witnesses would likely have made a difference in the outcome of trial and ruled that defendant was entitled to a new trial.
The prosecution challenged this decision, moved to expand the record, and was eventually provided a second evidentiary hearing. After this hearing, Judge Callahan indicated that he believed that his original decision to grant defendant a new trial was appropriate, but claimed that he was in a quandary regarding the effect of a purported confession by defendant to White. Judge Callahan indicated that he had
found not only in this case, but in other cases, that once an attorney has been informed by his client. . . that he or she has committed the crime, that the defense attorney is professionally and ethically bound not to call forth alibi witnesses, knowing full well that those alibi witnesses, if the client is to be believed, would be testifying falsely, giving perjurious testimony.
Judge Callahan then stated that he was “in a dilemma in that regard . .. based upon previous rulings of the Court of Appeals and the Supreme Court of this State” that
recently indicated that the Trial Court erred in finding the testimony of former defense trial counsel credible when during a Ginther[ ] hearing, he stated that the client had admitted his guilt to him and therefore, he was ethically precluded from calling alibi witnesses during his client’s trial. Should a defense lawyer call alibi witnesses if his client has admitted his guilt? Should the client’s admission be considered at all in the defense lawyer’s decision to call alibi witnesses?
Judge Callahan went on to conclude: “I guess [White] should have called the witnesses. Let the perjury begin.”
The prosecution again challenged the ruling, but the Court of Appeals affirmed. This Court, however, vacated the judgment of the Court of Appeals and remanded to the Court of Appeals, instructing it to remand the case to Judge Callahan for clarification of whether his ruling that defendant was entitled to a new trial was based on his determination that the defense witnesses were credible or whether he granted a new trial solely because he felt constrained to do so by this Court’s orders in unrelated cases.
On remand, Judge Callahan again referred to this Court’s orders in unrelated cases. Judge Callahan again noted that White believed that defendant had admitted his culpability but explained that clients are not always honest when admitting to engaging in certain acts. Judge Callahan again claimed that he was
in a dilemma in that regard, and therefore, based upon previous rulings of the Court of Appeals and the Supreme Court of this State, and based upon purported alibi witnesses being brought to the attention of defense counsel had made a decision that those alibi witnesses, because of the defendant admitting to the crime or giving a declaration against interest which could be construed as the same, had professionally chosen not to call those alibi witnesses because it would be a breach of professional ethics, for the defendant could not be in two places simultaneously.
The Supreme Court and Court of Appeals have recently indicated that the Trial Court erred in finding the testimony of former defense trial counsel credible when during a Ginther hearing, he stated that the client had admitted his guilt to him and therefore, he was ethically precluded from calling alibi witnesses during his client’s trial. Should a defense lawyer call alibi witnesses if his client has admitted his guilt? Should the client’s admission be considered at all in the defense lawyer’s decision to call alibi witnesses?
The prosecution sought to vacate Judge Callahan’s order, but the Court of Appeals affirmed, entering an order noting that Judge Callahan had granted a new trial on the basis of the credibility of the witnesses. Despite our clear caution not to rely on unrelated cases, Judge Callahan continued to improperly rely on orders in the unrelated cases to render a determination in the instant case that appears to be against the great weight of the evidence.
II. THE UNRELATED CASES
The unrelated cases that Judge Callahan repeatedly referred to are People v Hunter and People v Terrell, in which he had been reversed by this Court because we concluded “[t]he trial court clearly erred in finding that the defendant’s trial attorney was credible.” Needless to say, Hunter and Terrell are not binding precedent to the instant case or, more importantly, to future cases. Significantly, Hunter and Terrell, unlike the instant case, involved attorney Marvin Barnett, whose unprofessional and alleged criminal conduct recently resulted in his three-year suspension from the Attorney Discipline Board.
Hunter and Terrell are cases unrelated to each other. In each, the defendant was represented by Barnett. Each defendant was convicted of committing violent felonies. Each defendant moved for a new trial, claiming that he was denied the effective assistance of counsel. At each defendant’s Ginther hearing, Barnett testified, without corroboration of any kind, that the defendant had confessed to him that he had committed the crime. Barnett claimed in each Ginther hearing that the confession ethically precluded him from presenting evidence inconsistent with the confession. Judge Callahan found Barnett’s testimony credible. After thorough review of the lower court records in each case, this Court disagreed with Judge Callahan’s credibility determinations with regard to Barnett. This Court remanded each case to the Court of Appeals for reconsideration of the defendants’ ineffective-assistance claims without relying on Judge Callahan’s credibility determination.
III. ANALYSIS
In DeFrain v State Farm Mut Auto Ins Co, this Court explained, “An order of this Court is binding precedent if it constitutes a final disposi tion of an application and contains a concise statement of the applicable facts and reasons for the decision.” “These requirements derive from article 6, § 6, of our 1963 Constitution . . . ,” The Hunter and Terrell orders contain no facts and no reasons for the decisions and, therefore, cannot he considered binding in cases other than Hunter and Terrell. Yet Judge Callahan extrapolated from these nonprecedential orders that he had previously committed error by concluding that
once an attorney has been informed by his client, whether encouraged or spontaneously obtained from the client without elicitation, that he or she has committed the crime, that the defense attorney is professionally and ethically bound not to call forth alibi witnesses, knowing full well that those alibi witnesses, if the client is to be believed, would be testifying falsely, giving perjurious testimony.
The Court’s orders in Hunter and Terrell made no such assertion. Nothing in the Hunter and Terrell orders raised any question in regard to an attorney’s ethical obligation to call alibi witnesses if a defendant had admitted his guilt. Again, the orders only relate to the trial court’s finding that now-suspended attorney Marvin Barnett’s nearly identical uncorroborated testimony offered in the Ginther hearings in Hunter and Terrell was credible.
By relying on the unrelated orders and improperly extrapolating a rule from those cases, Judge Callahan failed to appreciate the significance of testimony from an officer of the court, White, whose testimony was far different from the testimony of Barnett in those unrelated cases. During the Ginther hearing in this case, White testified in great detail that defendant had admitted to her that he committed the offense. Her testimony was confirmed by notes taken during the interview, which defendant admittedly signed, though later claiming he was delusional. The evidence was also clear that defendant, a fourth-offense habitual offender, had lied when claiming that he had not met with White before trial. Significantly, Judge Callahan had acknowledged defendant’s clear lack of credibility when denying his day-of-trial request to present alibi witnesses. Despite all indications to the contrary, Judge Callahan continued to improperly rely on this Court’s orders in unrelated cases in which now-suspended attorney Marvin Barnett had acted as counsel.
Ginther hearings are fact intensive and must be evaluated on a case-by-case basis. Thus, it is difficult to understand why Judge Callahan believes he is constrained in this case by the orders in Hunter and Terrell. And while I acknowledge that factual findings made by a trial court are rarely disturbed on appeal, this Court’s orders in Hunter and Terrell were entirely justified. This point is made evident by the Michigan Attorney Discipline Board’s notice of suspension, which documents that Barnett had committed a litany of misconduct in the practice of law. Particularly relevant to our orders was that Barnett was found to have “engaged in conduct which involved dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, contrary to MRPC 8.4(b)[.]” The hearing panel also found that Barnett had “engaged in conduct that is contrary to justice, ethics, honesty or good morals, in violation of MCR 9.104(3)” and “engaged in conduct.. . that violates a criminal law of a state and the United States, to wit, MCL 750.122(3) and (6), in violation of MCR 9.104(5),” which generally relate to threats and intimidation of witnesses.
Given Judge Callahan’s continued improper reliance on our nonprec-edential and unrelated orders and his failure to appreciate the individual merit of the instant case, I would grant the prosecution’s application.
People v Manciel, unpublished order of the Court of Appeals, entered July 3, 2013 (Docket No. 312804).
See People v Manciel, unpublished order of the Court of Appeals, issued May 29, 2014 (Docket No. 312804).
People v Ginther, 390 Mich 436 (1973).
People v Manciel, unpublished opinion per curiam of the Court of Appeals, issued December 30, 2014 (Docket No. 312804).
People v Manciel, 497 Mich 1034 (2015).
People v Manciel, unpublished order of the Court of Appeals, entered August 14, 2015 (Docket No. 312804).
People v Hunter, 493 Mich 1015 (2013).
People v Terrell, 495 Mich 869 (2013).
DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 369 (2012), citing People v Crall, 444 Mich 463, 464 n 8 (1993), and Dykes v William Beaumont Hosp, 246 Mich App 471, 483 (2001).
DeFrain, 491 Mich at 369.
The notice provides:
The hearing panel found that [Barnett] neglected a legal matter, in violation of MRPC 1.1(c); failed to seek the lawful objectives of his client through reasonably available means permitted by law, in violation of MRPC 1.2(a); failed to act with reasonable diligence in violation of MRPC 1.3; failed to communicate with his client in violation of MRPC 1.4(a) and (b); failed to keep client funds separate from his business funds, in violation MRPC 1.15(c); failed to deposit client funds into an IOLTA account, in violation of MRPC 1.15(g); requested a person other than his client to refrain from voluntarily giving relevant information to another party, in violation of MRPC 3.4(f); used means that have no substantial purpose other than to embarrass, delay, or burden a third person, or used methods of obtaining evidence that violated the legal rights of such a person, in violation of MRPC 4.4; and failed to treat with courtesy and respect all persons involved in the legal process, in violation of MRPC 6.5(a). The panel also found that respondent failed to provide information demanded by the Grievance Administrator, in violation of MRPC 8.1(a)(2); engaged in conduct which violated the Rules of Professional Conduct, contrary to MRPC 8.4(a); engaged in conduct which involved dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, contrary to MRPC 8.4(b); engaged in conduct prejudicial to the administration of justice, in violation of MCR 9.104(1); exposed the legal profession or the courts to obloquy, contempt, censure or reproach, in violation of MCR 9.104(2); engaged in conduct that is contrary to justice, ethics, honesty or good morals, in violation of MCR 9.104(3); violated the standards or rules of professional responsibility adopted by the Supreme Court, contrary to MCR 9.104(4); engaged in conduct in [sic] that violates a criminal law of a state and the United States, to wit, MCL 750.122(3) and (6), in violation of MCR 9.104(5); made knowing misrepresentations of facts or circumstances in his answer to the request for investigation, in violation of MCR 9.104(6); and made misrepresentations in his answer to the request for investigation, in violation of MCR 9.113(A). [Attorney Discipline Board, Notice of Suspension and Restitution for Marvin Barnett, issued October 28, 2015 (Case Nos. 14-8-GA, 14-26-GA, and 14-53-GA), p 1, available at chttp:// www.adbmich.org/covoe/notices/2015-10-08-14n-8.pdf#search=%22Barnett%22> (accessed March 30, 2016) [https://perma.cc/9ARW-Q2HX].]
Id.
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reported below: 313 Mich App 94. | [
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Leave to appeal denied at 498 Mich 932. | [
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reported below: 311 Mich App 359. | [
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Summary disposition at 498 Mich 927. | [
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Leave to appeal denied at 498 Mich 884. | [
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Leave to appeal denied at 499 Mich 871. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Wayne Circuit Court on the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012); Montgomery v Louisiana, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016). The motion to hold application in abeyance is treated as a motion to add issue and is granted. The motions for peremptory reversal and for stay are denied. In all other respects, leave to appeal is denied, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). We do not retain jurisdiction. | [
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On order of the Court, this matter is hereby closed given the Judicial Tenure Commission’s January 11, 2016 order of dismissal of Formal Complaint No. 97. | [
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The parties shall file supplemental briefs within 42 days of the date of this order addressing: (1) whether the plaintiffs injury is closely related to the transportational function of his motor vehicle, and thus whether the plaintiffs injury arose out of the ownership, operation, maintenance, or use of his motor vehicle as a motor vehicle; and (2) whether the plaintiffs injury had a causal relationship to his parked motor vehicle that is more than incidental, fortuitous, or but for. McKenzie v Auto Club Ins Ass’n, 458 Mich 214, 217 n 3, 225-226 (1998). The parties should not submit mere restatements of their application papers. | [
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By order of December 22, 2015, the application for leave to appeal the March 4, 2015 order of the Court of Appeals was held in abeyance pending the decision in Montgomery v Louisiana, cert gtd 575 US _; 135 S Ct 1546; 191 L Ed 2d 635 (2015). On order of the Court, the case having been decided on January 25, 2016, 577 US _; 136 S Ct 718; 193 L Ed 2d 599 (2016), the application is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Wayne Circuit Court for the defendant’s first-degree murder conviction, and we remand this case to the trial court for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a. See Montgomery, supra; Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). We do not retain jurisdiction. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we remand this case to the Wayne Circuit Court to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resen-tence the defendant. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining question presented should be reviewed by this Court. We do not retain jurisdiction. | [
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Leave to appeal denied at 498 Mich 919. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Bay Circuit Court, and we remand this case to the trial court for resentencing. The court erred in assigning points for Offense Variables 9 and 19 (OV 9 and OV 19), MCL 777.39 and MCL 777.49, respectively, which changed the defendant’s guidelines range. People v Kimble, 470 Mich 305 (2004). | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate that part of the Court of Appeals judgment that remands for an evidentiary hearing to determine reasonable attorney fees and costs due the defendants. The Court of Appeals does not provide authority for awarding attorney fees and costs to the defendants. This order is without prejudice to the defendants seeking in Wayne Circuit Court any attorney fees and costs to which they might be entitled. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. | [
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On March 10, 2016, the Court heard oral argument on the application for leave to appeal the May 12, 2015 judgment of the Court of Appeals. The application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the judgment of the Court of Appeals. The Court of Appeals analysis of whether the Eaton Circuit Court reversibly erred by excluding the proposed MCL 768.27a evidence under MRE 403 is flawed in several central respects. Most notably, the Court of Appeals failed to duly acknowledge and consider the following legal principles, which this Court articulated in People v Watkins, 491 Mich 450 (2012): (1) the trial court’s evidentiary ruling is “reviewfed] for an abuse of discretion,” id. at 467; (2) while MCL 768.27a prevails over MRE 404(b) as to evidence that falls within the statute’s scope, the statute does not mandate the admission of all such evidence, but rather “the Legislature necessarily contemplated that evidence admissible under the statute need not be considered in all cases and that whether and which evidence would be considered would be a matter of judicial discretion, as guided by the [non-MRE 404(b)] rules of evidence,” including MRE 403 and the “other ordinary rules of evidence, such as those pertaining to hearsay and privilege,” id. at 484-485; and (3) there are “several considerations” that may properly inform a court’s decision to exclude such evidence under MRE 403, including but not limited to “the dissimilarity between the other acts and the charged crime” and “the lack of reliability of the evidence supporting the occurrence of the other acts,” id. at 487-488.
While we vacate the Court of Appeals judgment in full, we nonetheless reach the same result: we conclude that the proposed testimony falls within the scope of MCL 768.27a and that the trial court’s exclusion of that evidence, when properly evaluated under MRE 403 and Watkins, amounted to an abuse of discretion warranting reversal. In ruling the proposed testimony inadmissible under MRE 403, the trial court, citing the illustrative list of “considerations” in Watkins, expressed concern regarding apparent inconsistencies between the proposed testimony and prior statements made by the witness, and certain dissimilarities between the other act and the charged offenses. The trial court, however, failed to explain—and this Court, on review of the record, fails to see—how or why these concerns were sufficient in this case to render the “probative value [of the proposed testimony) ... 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,” as required for exclusion under MRE 403. Id. at 481. The list of “considerations” in Watkins provides a tool to facilitate, not a standard to supplant, this proper MRE 403 analysis, and it remains the court’s “responsibility” to carry out such an analysis in determining whether to exclude MCL 768.27a evidence under that rule. See id. at 489-490. The trial court misconstrued Watkins and neglected this fundamental responsibility in its evidentiary analysis; as a result of these legal errors, the court abused its discretion by excluding the proposed testimony under MRE 403. Accordingly, we reverse the trial court’s ruling to that effect, and we remand this case to the Eaton Circuit Court for further proceedings not inconsistent with this order. | [
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Leave to appeal denied at 499 Mich 883. | [
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Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse in part the judgment of the Court of Appeals, and we remand this case to the Saginaw Circuit Court to determine whether the court would have imposed a materially different sentence under the sentence procedure described in People v Lockridge, 498 Mich 358 (2015). On remand, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. In all other respects, leave to appeal is denied because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. | [
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