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Per Curiam.
Following a bench trial, defendants appeal as of right from the judgment awarding plaintiff approximately $1.25 million in a private cost recovery action under the Michigan Environmental Response Act (mera), MCL 299.601 et seq.; MSA. 13.32(1) et seq., while plaintiff cross appeals the order denying its motion for attorney fees. We affirm.
i
On appeal, defendants first argue that the trial court erred in failing to rule that under the mera, plaintiff could not recover the costs incurred in voluntarily remediating contamination on the property fonnerly owned by defendants (the Amoco site) unless plaintiff proved that it complied with the Michigan Department of Natural Resources (mdnr) rules governing the selection and implementation of remedial measures.
A
As recognized by this Court in Flanders Industries, Inc v Michigan, 203 Mich App 15, 20-21; 512 NW2d 328 (1993):
The MERA, 1982 PA 307, as amended by 1987 PA 166, 1989 PA 157, 1990 PA 233, and 1990 PA 234 (the so-called “polluters pay” law) is a complex statutory scheme intended, in the words of its title, “to provide for the identification . . . of environmental contamination . . . [and] to provide for response activity” at such sites. Under the mera, persons may become liable for costs (“response activity costs”) incurred by the Department of Natural Resources in removing pollution. MCL 299.612; MSA 13.32(12).
The mera sets forth five categories of potentially responsible persons (prps). Farm Bureau Mut Ins Co of Michigan v Porter & Heckman, Inc, 220 Mich App 627, 639-640; 560 NW2d 367 (1996). Section 12(1) of the mera, MCL 299.612(1); MSA 13.32(12)(1), provided in pertinent part:
Notwithstanding any other provision or rule of law and subject only to the defenses set forth in sections 12a and 12b, if there is a release or threatened release from a facility that causes the incurrence of response activity costs, the following persons shall be liable under his section:
(a) The owner or operator of the facility.
(b) The owner or operator of the facility at the time of disposal of a hazardous substance.
(c) The owner or operator of the facility since the time of disposal of a hazardous substance not included in subdivision (a) or (b).
(d) A person that by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of a hazardous substance owned or possessed by the person, by any other person, at the facility owned or operated by another person and containing the hazardous substance.
(e) A person that accepts or accepted any hazardous substance for transport to the facility selected by that person.
Before the 1990 amendments of the “polluters pay” law, the mera authorized cost recovery actions only by the state. As amended in 1990, the mera authorized persons other than the state (i.e., private parties) that voluntarily clean up contamination to recover their cleanup costs from prps provided that they comply with the provisions of § 12(2)(b). Section 12(2) provided:
A person described in subsection (1) shall be liable for:
(a) All costs of response activity lawfully incurred by the state relating to the selection and implementation of response activity under this act.
(b) Any other necessary costs of response activity incurred by any other person consistent with rules relating to the selection and implementation of response activity promulgated under this act.
(c) Damages for the full value of injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing the injury, destruction, or loss resulting from the release. [Emphasis provided.]
For the puiposes of a cost recovery action under the mera, a municipality is treated as a private party. Under § 3(s) of the mera, MCL 299.603(s); MSA 13.32(3)(s) (and also the recodified sections in the NREPA, MCL 324.20101[x]; MSA 13A.20101[x]), “[1]ocal urdt of government” is defined as “a county, city, township, or village, an agency of a local unit of government, an authority or any other public body or entity created by or pursuant to state law. Local unit of government does not include the state or federal government or a state or federal agency.” Because a municipality is treated as a private party for the purpose of cost recovery actions, plaintiff is thus treated as a private party whose claim falls under § 12(2)(b).
B
In this case, defendants argue that the trial court erred as a matter of law because the plain language of § 12(2)(b) requires that a private party seeking recovery of the cleanup costs from the owner or operator of the facility at the time of disposal of a hazardous substance establish that the private party incurred the costs of remediation consistent with the rules promulgated under the MERA, 1990 AACS, R 299.5101 et seq., effective July 12, 1990. In interpreting § 12(2)(b), defendants claim that this Court should look to federal case law interpreting the analo gous provision of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (cercla), as amended, 42 USC 9601 et seq., for guidance. See Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 228; 532 NW2d 903 (1995); Stolaruk Corp v Central Nat’l Ins Co of Omaha, 206 Mich App 444, 453; 522 NW2d 670 (1994). As defendants point out, the mera is similar in intent to, and patterned after, the CERCLA, and both acts provide for the identification of environmental contamination and for response activity to remediate it. Flanders Industries, supra at 21. Further, both acts impose strict liability for cleanup costs on persons who fall within one of the enumerated categories of potentially responsible persons. MCL 299.612; MSA 13.32(12); 42 USC 9607(a). See also 1 Michigan Environmental Law Deskbook, § 6.43, pp 6-32 — 6-33; Nurad, Inc v William E Hooper & Sons Co, 966 F2d 837, 841 (CA 4, 1992); Kelley v Thomas Solvent Co, 727 F Supp 1532, 1539 (WD Mich, 1989).
Under the CERCLA, private parties have a right to recover their cleanup costs from the parties responsible for the contamination provided that the response costs were necessary and were “consistent with the national contingency plan [ncp].” 42 USC 9607(a)(4)(B); Artesian Water Co v New Castle Co, 659 F Supp 1269, 1278-1279 (D Del, 1987), aff’d 851 F2d 643 (CA 3, 1988). Defendants argue that federal courts have uniformly interpreted § 9607(a) to require, “as a prerequisite to cost recovery, compliance with the NCP process for identifying and selecting remedial alternatives, i.e., the ri/fs [Remedial Investigation/Feasibility Studies] process.” Channel Master Satellite Systems, Inc v JFD Electronics Corp, 748 F Supp 373 (ED NC, 1990); Amland Properties Corp v Aluminum Co of America, 711 F Supp 784 (D NJ, 1989). Because the mera is patterned after the CERcia and has the same legislative objective, and because federal courts have generally held that consistency with the NCP is an element of the plaintiff’s prima facie case on liability, defendants maintain that the trial court erred in failing to rule that plaintiff could recover its response costs under § 12(2)(b) of the MERA only if it proved that the costs were incurred consistent with the mdnr rules for the selection and implementation of response activity. Because plaintiff did not establish that it performed a remedial investigation and a feasibility study consistent with the mdnr rules, defendants thus argue that plaintiff failed to establish a prima facie case showing that it was entitled to the recovery of its response activity costs.
c
At the outset, we begin with the observation that the interpretation of § 12(2)(b) presents an issue of first impression, because no Michigan appellate court has addressed this particular subsection in a published case. Statutory interpretation is a question of law that is reviewed de novo on appeal. Smeets v Genesee Co Clerk, 193 Mich App 628, 633; 484 NW2d 770 (1992). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993); Forest City Enterprises, Inc v Leemon Oil Co, 228 Mich App 57, 64; 577 NW2d 150 (1998). The first criterion in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992); Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. Id.
At first blush, § 12(2)(b) appears to have been anything but a model of clarity. The subsection provided, in pertinent part, that a prp shall be liable to a private party for its “necessary costs of response activity incurred . . . consistent with the rules . . . promulgated under this act.” The rules that the mdnr promulgated pursuant to this act are the remedial requirements of the Environmental Contamination Response Activity Rules, 1990 AACS, R 299.5101 et seq. Thus, to recover its cleanup costs from a party responsible for the pollution, a private party must show that its “response activity” costs were (1) “necessary” and were incurred (2) “consistent with [the mdnr rules].” Although the parties do not address the matter in their appeal briefs, we note that the term “necessary,” as used in § 12(2)(b), was left undefined in the mera. On the other hand, the mera defines “costs of response activity” or “response activity costs” as “all costs incurred in taking or conducting response activity, including enforcement costs.” MCL 299.603(bb); MSA 13.32(3)(bb). In turn, “response activity” is defined to be
evaluation, interim response activity, remedial action, or the taking of other actions necessary to protect the public health, safety, or welfare, or the environment, or the natural resources. Response activity also includes health assessments or health effect studies carried out under the supervision, or with the approval of, the department of public health, and enforcement actions related to any response activity. [MCL 299.603(aa); MSA 13.32(3)(aa).]
In the absence of a statutory definition of “necessary” as used in § 12(2)(b), we may resort to dictionary definitions to elucidate the meaning of the word. Lumley v Univ of Michigan Bd of Regents, 215 Mich App 125, 130; 544 NW2d 692 (1996). Black’s Law Dictionary (5th ed) defines “necessary” in various ways:
This word must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper or conducive to the end sought. It is an adjective expressing degrees, and may express mere convenience or that which is indispensable or an absolute physical necessity. It may mean something which in the accomplishment of a given object cannot be dispensed with, or it may mean something reasonably useful and proper, and of greater or lesser benefit or convenience, and its force and meaning must be determined with relation to the particular object sought. [Emphasis provided.]
See also Shumake v Travelers Ins Co, 147 Mich App 600, 608; 383 NW2d 259 (1985). Given the range of possible meanings, “necessary,” as used in § 12(2)(b), could strictly mean those costs that are “required” or could more loosely mean those costs that are “appropriate,” “reasonable,” or “suitable,” in remediating a site to protect “the public health, safety, or welfare, or the environment, or the natural resources.”
In deciding whether to interpret “necessary” as used in § 12(2)(b) broadly or narrowly, it is advisable to read § 12(2) in conjunction with § 12(3), which provides:
The costs of response activity recoverable under subsection (2) shall also include:
(a) All costs of response activity reasonably incurred by the state prior to the promulgation of rules relating to the selection and implementation of response activity under this act, excepting those cases where cost recovery actions have been filed before July 11, 1990. A person challenging the recovery of costs under this subdivision shall have the burden of establishing that the costs were not reasonably incurred under the circumstances that existed at the time the costs were incurred. Recoverable costs include costs incurred reasonably consistent with the rules relating to the selection and implementation of response activity in effect on July 11, 1990.
(b) Any other necessary costs of response activity reasonably incurred by any other person prior to the promulgation of rules relating to the selection and implementation of response activity under this act. A person seeking recovery of these costs has the burden of establishing that the costs were reasonably incurred under the circumstances that existed at the time the costs were incurred.
Under the statutory scheme set forth in subsections 2 and 3, the state and private parties are subject to different standards depending on whether the remediation took place before or after the promulgation of the administrative rules relating to the selection and implementation of response activity -that became effective on July 12, 1990. Under § 12(3)(a), a prp shall be liable to the state for “ [a]H costs of response activity reasonably incurred by the state prior to the promulgation of rules relating to the selection and implementation of response activity under this act.” (Emphasis provided.) Moreover, the burden of proving whether the costs were reasonably incurred by the state in a cost recovery action before the promulgation of the rules falls upon the prp challenging the recovery action. However, after the promulgation of the administrative rules on July 12, 1990, a cost recovery action brought by the state is governed by § 12(2)(a), which subjects a prp to liability for “[a]ll costs of response activity lawfully incurred by the state.” (Emphasis provided.) Presumably, the burden of proving whether the state’s recovery costs were lawfully incurred also falls upon the prp challenging the recovery action, although § 12(2) (a) does not expressly state this.
As for cost recovery actions brought by private parties, § 12(3)(b) applies to response activity undertaken before the promulgation of the rules on July 12, 1990. Under § 12(3)(b), a prp shall be liable for “[a]ny other necessary costs of response activity reasonably incurred” (emphasis provided) by a private party before the promulgation of the rules. In contrast to cost recovery actions brought by the state before the promulgation of the rules, a private party has the burden of proving that its “necessary costs of response activity” were reasonably incurred before the promulgation of the rules. However, after the administrative rules became effective on July 12, 1990, recovery of cleanup costs incurred by a private party is governed by the standard set forth in § 12(2)(b), which subjects a prp to liability for “[a]ny other necessary costs of response activity incurred” by a private party that is “consistent with the rules relating to the selection and implementation of response activity promulgated under this act.”
A close examination of the statutory scheme in question reveals that the Legislature relaxed the standards governing cost recovery actions after the promulgation of the rules. While a PRP is liable to the state for response activity costs that were “reasonably incurred” before the promulgation of the rules unless the PRP could show otherwise, a PRP is liable to the state for all recovery costs that were “lawfully incurred” after the promulgation of the rules, presumably unless the PRP could show otherwise. On the other hand, while a private party must establish that its “necessary costs of response activity [were] reasonably incurred” before the promulgation of the rules, a private party must only show that its “necessary costs of response activity [were] incurred . . . consistent with [the] rules” after the rules were promulgated on July 12, 1990.
In so doing, it is clear that the Legislature sought to distinguish the “necessary” from “reasonable” and its cognates, as they are used in subsections 2 and 3. By allowing a private party, under § 12(3)(b), to recover its “necessary costs of response activity reasonably incurred” before the promulgation of the rules, while permitting a private party, under § 12(3)(a) to recover its “necessary costs of response activity incurred” that are consistent with the rules after their promulgation, it is evident that the Legislature intended “necessary” to have a different meaning than “reasonable.” Farrington, supra at 210. Thus, we construe 'the phrase “necessary costs of response activity” to mean those response activity costs that are “required” in re-mediating a contaminated site to protect the public health, safety, or welfare, or the environment, or the natural resources. As defined by the mera, then, the kinds or types of response activity costs that are necessary in remediating a contaminated site cover a wide range of activities, including “evaluation, interim response activity, remedial action, or the taking of other actions necessary to protect the public health, safety, or welfare, or the environment, or the natural resources.” MCL 299.603(aa); MSA 12.32(3)(aa).
In addition, a private party in a cost recovery action under § 12(2)(b) must show that its “necessary costs of response activity” were incurred consistent with the MDNR rules that went into effect on July 12, 1990. 1990 AACS, R 299.5101 et seq. Specifically, Rule 511, 1990 AACS, R 299.5511, provides in pertinent part:
(1) The department [mdnr] may request that a remedial investigation[ ] be conducted, consistent with this part and sufficient to support determinations pursuant to parts 6 and 7 of these rules, at any site where response activities are to be undertaken.
(2) The department may request the preparation and approval of a remedial investigation plan before the initiation of a remedial investigation.
Rule 513(1), 1990 AACS, R 299.5513(1), similarly provides that “[t]he department may request that a feasi bility study[ ] be conducted at a site where final response activities are to be undertaken.” Likewise, Rule 515(1), 1990 AACS, R 299.5515(1), provides, in pertinent part, that “[t]he department may request that a remedial action plan[ ] be developed for any remedial action undertaken pursuant to the provisions of these rules and be submitted to the department for approval.”
Because the rules of statutory construction also apply to administrative rules, Attorney General v Lake States Wood Preserving, Inc, 199 Mich App 149, 155; 501 NW2d 213 (1993), the plain language of the mdnr rules in question clearly shows that the mdnr has the discretion to require a private party to complete a remedial investigation, a remedial action plan, or a feasibility study before undertaking the cleanup of a contaminated site. While the word “shall” is generally used to designate a mandatory provision, “may” designates discretion. Jordan v Jarvis, 200 Mich App 445, 451; 505 NW2d 279 (1993). Put in other terms, the mdnr rules are permissive, not mandatory.
Moreover, we note that the mdnr itself interprets these rules to be permissive, not mandatory. At trial, the mdnr representative testified that, absent a request by the mdnr, a private party was not required to complete a formal, written remedial investigation, a feasibility study, or a remedial action. Given that courts give great weight to any reasonable construc tion of a statute adopted by the agency legislatively chosen to enforce it, especially when the agency’s interpretation accords with the plain meaning of the statute, Reo v Lane Bryant, Inc, 211 Mich App 364, 366; 536 NW2d 556 (1995), we conclude that the mdnr rules relating to the completion of a remedial investigation, a remedial action plan, or a feasibility study by a private party should be interpreted as permissive, not mandatory, rules.
D
In light of the foregoing analysis, we conclude that, contrary to defendants’ contention, the trial court did not err in declining to interpret the cost recovery provision under § 12(2)(b) of the mera, in accordance with federal court decisions interpreting the cercla. As plaintiff points out, although the general intent of the mera is similar to that of the cercla, our Legislature, in enacting the mera, sought to provide a state remedy that was more responsive to environmental contamination than the CERCLA, its federal counterpart, providing private parties conducting voluntary cleanups with the right to collect their cleanup costs in remediating contaminated sites from parties responsible for the contamination. Specifically, the legislative history indicates that the mera was amended, in part, “to expedite cleanup of sites of contamination by providing the dnr with enforcement tools necessary to compel compliance with the act and by providing penalties and positive incentives to encourage polluters to pay for, and promptly implement, cleanup.” See House Legislative Analysis, HB 5878, September 12, 1990. Consistent with this legislative objective, § 12(2)(b) thus differs from its federal counterpart in a crucial respect by affording a private party greater flexibility in recovering its cleanup costs from a responsible party. Significantly, while private parties seeking recovery of “necessary response costs” in a voluntary cleanup under the cercla must strictly comply with the NCP process, Channel Master Satellite Systems, Inc, supra-, Amland Properties Corp, supra, the mera does not contain similar restrictions. See 1 Michigan Environmental Law Deskbook, § 6.62, pp 6-50 — 6-51. Although federal courts have strictly construed the ncp’s requirements as mandatory in a private cost recovery action under the cercla, the mdnr rules are permissive under the MERA. For that reason, we agree with plaintiff that federal case law construing the CERCLA and the NCP is inapposite to this case, and thus reject any suggestion by defendants to graft these federal requirements onto the construction of the mera.
Accordingly, we conclude that under § 12(2)(b) of the MERA, a private party is entitled to recover its cleanup costs from a prp for remediating a contaminated site, provided that it proves that its cleanup costs were “necessary” and were incurred consistent with the mdnr rules. Because the mdnr rules are permissive, not mandatory, a private party in a cost recovery action under § 12(2)(b) did not have to establish that it performed a remedial investigation, a remedial action plan, or a feasibility study if the mdnr does not require them. Because the mdnr determined that plaintiff was not required to complete a remedial investigation, a remedial action plan, or a feasibility st udy in this case, the trial court did not err in ruling that plaintiff was entitled to recover its cleanup costs under the MERA.
n
Defendants also claim, and plaintiff agrees, that the trial court erred in applying the wrong legal standard in determining plaintiffs claim for recovery costs under the mera by reading a “reasonable” requirement into § 12(2)(b). We agree.
In its oral opinion from the bench, the trial court concluded, in pertinent part, that “it was reasonable and appropriate in 1991 for the City in developing this residential condo project to remediate the contaminated Amoco site to a Type A closure for the protection of the public health and environment, and the City did so within the established rules and criteria of MERA and the dnr”; “that Amoco’s contamination required remediation and this was accomplished in an appropriate fashion in keeping with the proper environmental standards”; and that “it’s my responsibility to see to it that Amoco only gets tagged for the reasonable costs that relate to the completion of the remediation as was required here.” (Emphasis provided.)
In its ruling, the trial court appeared to apply the standard set forth in § 12(3)(b), which applies to the cleanup costs incurred by a private party before July 12, 1990 (i.e., before the MDNR rules became effective), rather than the standard set forth in § 12(2)(b) that is applicable to the costs of a private recovery action after the promulgation of the rules. While the trial court properly found that plaintiff’s recovery costs constituted “necessary costs of response activity” because these costs were required to remediate the contaminated site, the court also concluded that plaintiff’s costs were reasonably incurred by observing that “it was reasonable and appropriate” for plaintiff to remediate the contaminated property to a type A closure and that “this was accomplished in an appropriate fashion in keeping with the proper environmental standards.”
Although the trial court erred in applying the standard set forth in § 12(3)(b), the error was harmless to both sides. Contrary to defendants’ claim, the error was harmless because the trial court subjected plaintiff’s cost recovery action to a higher standard of proof, requiring that plaintiff show that its “necessary costs of response activity” were “reasonably incurred,” rather than merely “incurred” consistent with the mdnr rules. At the same time, the error was also harmless to plaintiff because the trial court properly excluded $100,000 of plaintiff’s costs on the ground that those costs were not related to the remediation of the site (i.e., those costs were not “necessary costs of response activity”), not on the ground that those costs were unreasonably incurred.
m
Finally, defendants contend that the trial court clearly erred in its findings of fact that defendants are liable to plaintiff under the mera. This Court reviews the findings of fact by a trial court sitting without a jury under the clearly erroneous standard. MCR 2.613(C); Tuttle v Dep’t of State Hwys, 397 Mich 44, 46; 243 NW2d 244 (1976); Giordano v Markovitz, 209 Mich App 676, 678-679; 531 NW2d 815 (1995). A finding is clearly erroneous when “ ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Tuttle, supra at 46, quoting United States v United States Gypsum Co, 333 US 364, 395; 68 S Ct 525; 92 L Ed 746 (1948).
First, defendants argue that the trial court’s finding that plaintiff performed the remediation within the mera rules was clearly erroneous. As we have already concluded, plaintiff’s alleged failure to prepare a remedial investigation, a remedial action plan, or a feasibility study does not establish that plaintiff failed to comply with the mdnr rules because those rules are permissive, not mandatory, and because the mdnr did not require plaintiff to complete a remedial investigation, a remedial action plan, or a feasibility study in this case.
More troublesome is defendants’ contention that the trial court erred because “the record did not demonstrate that the City’s costs were ‘necessary’ as required by mera,” since “there was no showing that the 22,000 cubic yards of soil the City excavated was contaminated, and much evidence to show that it was clean.” Defendants claim that the determination that the soil was contaminated was based upon the sight and smell of the field employees of the environmental consultant contracted by plaintiff, that the photoionization detector [pid] readings were unreliable, and that laboratory testing, the only potentially reliable method, was not used appropriately at the site until the last two weeks of the excavation process.
While defendants presented some evidence that plaintiff might have removed soil from the site that was not contaminated, we are not left with the “definite and firm conviction” that the trial court’s findings of fact in this regard were “clearly erroneous.” In this case, there was substantial testimony and exhibits supporting the trial court’s findings of fact that the 22,000 cubic yards of soil that plaintiff excavated was contaminated. Although defendants claim that plaintiff’s environmental consultant did not use the laboratory data to direct most of the excavation work and that laboratory data proved that clean soils were excavated, the record shows that plaintiff’s environmental consultant resorted to laboratory data only when field observations and PID readings led it to believe that it had reached clean soils, and that almost twenty-five percent of the samples collected under this protocol were contaminated, suggesting that its field observations and pid readings were fairly reliable. Accordingly, we find no clear error.
IV
On cross appeal, plaintiff argues that the trial court erred in ruling that plaintiff could not recover its attorney fees pursuant to the provisions of the mera. Generally, attorney fees are not awardable absent a statute, rule, or contractual provision providing for the reimbursement of attorney fees. Watkins v Manchester, 220 Mich App 337, 342; 559 NW2d 81 (1996).
Contrary to plaintiffs contention, § 12 of the MERA does not provide for the recovery of attorney fees in a private cost recovery action. Specifically, the definition of costs that a private party may recover under § 12(2)(b) does not include attorney fees. The MERA defines “costs of response activity” or “response activity costs” as “all costs incurred in taking or conducting response activity, including enforcement costs.” MCL 299.603(bb); MSA 13.32(3)(bb). “Enforcement costs” are defined as
court expenses, reasonable attorney fees of the attorney general, and other reasonable expenses of an executive department that are incurred in relation to enforcement under this act or rules promulgated under this act, or both. [MCL 299.603(i); MSA 13.32(3)(i).]
Given that the express definition of “enforcement costs” only provides for the recovery of “reasonable attorney fees of the attorney general” in a cost recovery action brought by the state, it is clear that the Legislature did not intend to allow private parties to recover their attorney fees in actions under § 12. Farrington, supra at 210. Accordingly, the trial court did not err in ruling that attorney fees were not available to plaintiff in this case. See also Key Tronic Corp v United States, 511 US 809; 114 S Ct 1960; 128 L Ed 2d 797 (1994), where the United States Supreme Court similarly ruled that attorney fees are not recoverable in a private cost recovery action under the CERCLA.
Affirmed.
The instant action arises under the mera as amended in 1990. 1994 PA 451 recodified the mera as Part 201 of the Natural Resources and Environmental Protection Act (nrepa), MCL 324.20101 et seq., MSA 13A.20101 et seq., which became effective March 30, 1995. Cipri v Bellingham Frozen Foods, Inc, 213 Mich App 32, 36; 539 NW2d 526 (1995); 1 Michigan Environmental Law Deskbook (1997 Supp), § 6.36, p 6-96. Pursuant to MCL 324.99903; MSA 13A.99903, the powers of the Environmental Response Division of the Michigan Department of National Resources (mdnr), as set forth in the nrepa, were transferred to the newly created Department of Environmental Quality, effective October 1, 1995.
Our review of Michigan and federal case law has not revealed a single case involving a recovery action brought by a municipality under the mera, its successor statute, the nrepa, or the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (cercla), 42 USC 9601 et seq., its federal counterpart. See 1 Michigan Environmental Law Deskbook, § 6.71, pp 6-56 — 6-57.
On appeal, defendants do not contest that they are subject to liability for response activity costs under § 12(1), conceding the trial court’s findings that the property in question was used as a bulk oil facility storing hazardous substances (i.e., petroleum products), that there was a release of the substances, and that defendants were owners or operators of the property since the time of the release. Rather, defendants claim that plaintiff' failed to prove that it had the right to recover cleanup costs from them under § 12(2)(b).
Under the cercla, the comparable provisions provide:
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section—
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State . . . . [ 42 USC 9607a.]
To establish a prima facie case under the cercla, a plaintiff must show that (1) a release of hazardous substances has occurred, (2) at a facility, (3) causing a plaintiff to incur response costs, and (4) the defendant is a responsible party. CPC Int'l, Inc v Aerojet-General Corp, 777 F Supp 549, 570 (WD Mich, 1991), aff'd in part and rev’d in part on other grounds sub nom United States v Cordova Chemical Co of Michigan, 59 F3d 584 (CA 6, 1995).
While it is generally advisable to look to the cercla for guidance in interpreting the mera, we note that the comparable phrase “necessary response costs” is also not precisely defined in the federal statute, even though the cercla does provide that “response” means “remove, removal, remedy and remedial action . . . includ[ing] enforcement activities related thereto,” 42 USC 9601(25), does define “remove” and “removal” as
the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. [42 USC 9601(23).]
Notwithstanding, federal courts have tended to interpret “necessary response costs” broadly. Rhodes v Darlington Co, 833 F Supp 1163, 1188 (1) SC, 1992) (see cases cited therein).
Although “remedial investigation” is not defined in the mera, the statute provides:
“Remedial action” includes, but is not limited to, cleanup, removal, containment, isolation, destruction, or treatment of a hazardous substance released or threatened to be released into the environment, monitoring, maintenance, or the taking of other actions that may be necessary to prevent, minimize, or mitigate injury to the public health, safety, or welfare, or to the environment. [MCL 299.603(y); MSA 13.32(3)(y).j
Rule 511 further provides the factors that a remedial investigation plan should follow, as appropriate to the site.
“Feasibility study” is defined as “a process for developing, evaluating, and selecting appropriate response activities.” MCL 299.603(n); MSA 13.32(3)(n). Rule 513 lists the factors that a feasibility study must contain as appropriate to the site.
“Remedial action plan” is defined as “a work plan for performing remedial action under this act. MCL 299.603(z); MSA 13.32(3)(z). The elements that must be included in a remedial action are set forth in Rule 515.
In so holding, we do not need to reach the question whether plaintiff actually completed a remedial investigation, a remedial action plan, and a feasibility study as defined by the mdnr. Further, because plaintiff established that its “necessary costs of response activity” were incurred consistent with the mdnr rules, we do not need to consider the question whether compliance with the mdnr rules is an element of liability or damages in a cost recovery action under the mera. We note that most federal courts have viewed the requirement of compliance with the ncp process as an element of liability in cost recovery actions brought under the cercla. See Pierson Sand & Gravel, Inc v Pierson Twp, 851 F Supp 850, 855 (WD Mich, 1994), aff’d 89 F3d 835 (CA 6, 1996); Sherwin-Williams Co v Hamtramck, 840 F Supp 470, 474 (ED Mich, 1993); Channel Master Satellite Systems, Inc, supra; Amland Properties Corp, supra; Artesian Water Co, supra; cf. Northwestern Mut Life Ins Co v Atlantic Research Corp, 847 F Supp 389, 400 (ED Va, 1994) (consistency with ncp was found to be an element of damages). | [
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Markman, J.
Petitioner Min Nam Lee appeals as of right an order denying his motion to set aside a bond forfeiture order. We vacate and remand.
Defendant Myung Won Kang was charged with armed robbery but released in November 1990 after petitioner deposited $50,000 to satisfy the cash or surety bond set by the district court. Defendant pleaded no contest to unarmed robbery pursuant to a plea agreement. A May 1991 hearing was set for his motion to set aside the no-contest plea and for sentencing. However, defendant failed to appear and the court ordered the bond forfeited and issued a bench warrant. Defendant subsequently was arrested in New Jersey on unrelated charges in December 1991. The prosecutor placed a hold on defendant for his return to Michigan, which occurred in July 1994. He was sentenced in Michigan for the unarmed robbery conviction in August 1994. Meanwhile, in December 1992, petitioner moved to set aside the forfeiture of the cash bond. The trial court denied the motion. In a previous appeal, this Court held that “a person is ‘apprehended’ within the meaning of MCL 765.15(a); MSA 28.902(a) when that person is held in custody in another state.” In re Forfeiture of Bail Bond, 209 Mich App 540, 543; 531 NW2d 806 (1995). It also held that the trial court clearly erred in finding that defendant, not petitioner, posted the funds. Id. at 550. This Court then reversed the order denying petitioner’s motion to set aside the forfeiture and remanded for a determination “whether the ends of justice would be thwarted by setting aside the forfeiture” and a determination of the costs of apprehending defendant. Id. On remand, the trial court noted that it was uncontested that the costs of extraditing defendant were $1,022 but concluded that “setting aside the forfeiture would substantially thwart the interests of justice” and therefore denied petitioner’s motion. It held that “defendant’s fleeing the jurisdiction, subsequent criminal offense, involuntary apprehension and subsequent return to Michigan for sentencing controls over the sought after excusal of the petitioner failing to produce the defendant for sentencing.”
This Court reviews a ruling on a motion to set aside a forfeiture of a bond for an abuse of discretion. People v Munley, 175 Mich App 399, 403; 438 NW2d 292 (1989). Questions of statutory interpretation are questions of law that appellate courts review de novo. People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997).
The relevant version of MCL 765.15; MSA 28.902 stated in pertinent part:
(a) If such bond or bail be forfeited, the court shall enter an order upon its records directing, within 45 days of the order, the disposition of such cash, check, or security, and the treasurer or clerk, upon presentation of a certified copy of such order, shall make disposition thereof. The court shall set aside the forfeiture and discharge the bail or bond, ■within 1 year from the time of the forfeiture judgment, in accordance -with subsection (b) of this section if the person who forfeited bond or bail is apprehended and the ends of justice have not been thwarted and the county has been repaid its costs for apprehending the person.
Initially, we note that petitioner’s failure to move to set aside the bond forfeiture until more than one year after the forfeiture judgment is not fatal to his motion. The one-year limitation is not jurisdictional and does not preclude discretionary return of deposited funds. Munley, supra at 404.
Section 15(a) states that a court “shall set aside the forfeiture and discharge the bail or bond” within one year of the forfeiture judgment if three criteria are met: (1) the defendant is apprehended, (2) “the ends of justice have not been thwarted,” and (3) “the county has been repaid its costs for apprehending the person.”
This Court’s previous decision in this matter established that the first criterion was met by defendant’s apprehension in New Jersey within one year of the forfeiture judgment. In re Bail Bond, supra at 543.
The second criterion requires an inquiry to confirm that “the ends of justice have not been thwarted” before returning a bond to the depositor. This criterion is articulated in the past tense. Thus, the inquiry is not whether return of the bond to the depositor would result in the thwarting of the ends of justice. Rather, the inquiry is whether the circumstances surrounding the forfeiture of the bond and subsequent apprehension of the defendant have already thwarted the ends of justice. On the one end of the spectrum, one could assume that “the ends of justice have not been thwarted” whenever the defendant is apprehended within one year of the forfeiture judgment and brought to justice. On the other end of the spectrum, one could assume that “the ends of justice” have been thwarted whenever a defendant fails to appear, despite subsequent apprehension within one year of the forfeiture judgment. Neither of these extremes is consistent with the language of § 15(a), which requires inquiry into the second criterion in addition to the first criterion. Because the first criterion is met only in situations where a defendant initially fails to appear but is subsequently apprehended within one year of the forfeiture judgment, the inquiry into whether “the ends of justice have not been thwarted” must turn on considerations beyond the fact that the defendant absconded and beyond the fact that he was eventually brought to justice. Having considered the matter, we believe that the full range of circumstances must be considered in each case in making the statutory determination. In particular, the following considerations are among those relevant to determining whether “the ends of justice have not been thwarted”:
1. the depositor’s role, if any, in hiding the defendant, failing to assist in the apprehension of the defendant, or affirmatively assisting in the apprehension of the defendant;
2. the length of time elapsing between the defendant’s failure to appear and his ultimate apprehension;
3. the extent to which evidence has been lost (e.g., death or unavailability of witnesses, fading of witnesses’ memories) or whether the prosecution’s case has otherwise been affected by the delay;
4. the extent to which the defendant has committed additional crimes before apprehension, and the seriousness of such crimes;
5. the extent to which there has been a psychological or emotional effect upon the initial victim as a result of the defendant being at large;
6. the extent to which the defendant’s apprehension was involuntary; and
7. the extent to which extradition or other legal procedures have been required, thereby causing additional delays in carrying out justice.
While individual cases may present additional considerations relevant to whether “the ends of justice have not been thwarted,” this nonexhaustive list provides a starting point for the inquiry under MCL 765.15; MSA 28.902. Utilizing this list of factors to determine if “the ends of justice have not been thwarted” avoids placing undue emphasis on either the defendant’s failure to appear for a scheduled hearing or the defendant’s subsequent apprehension. Focus on either of these facts per se is inappropriate because both, by definition, will be present in every case that meets the first criterion under § 15(a).
Here, the trial court’s conclusion appears to turn principally on its assessment that the depositor had a duty to produce defendant. While a depositor obviously risks losing the funds deposited if the defendant fails to appear, a depositor does not, by virtue alone of providing funds for a bond, undertake an affirmative duty to produce the defendant. Rather, as stated above, the depositor’s involvement, if any, in either hiding or apprehending the defendant is simply a relevant consideration in determining whether “the ends of justice have not been thwarted.” For these reasons, we vacate the trial court’s assessment of this second criterion and remand for reconsideration in accordance with this opinion.
The third criterion under § 15(a) is whether “the county has been repaid its costs for apprehending the person.” Here, the parties agreed that the extradition costs were $1,022. A letter from the prosecuting attorney indicates that this total includes $511 to pick defendant up and $511 to return him. However, this amount does not appear to include the county’s indirect costs in locating defendant. The county’s costs to locate the defendant (e.g., man-hours of investigative time, professional and support personnel costs, telephone calls) are all part of the costs of apprehension. We therefore hold that the costs of “apprehending the person” under § 15 include a jurisdiction’s costs in locating the defendant, as well as any extradition costs.
For these reasons, we vacate the order denying petitioner’s motion to set aside the forfeiture and remand for reconsideration in accordance with this opinion. Because of the drawn-out history of this case, we retain jurisdiction and order the trial court to undertake such reconsideration within forty-two days of the issuance of this opinion.
The 1993 amendments of this statute do not involve significant changes to the portions of the statute relevant here. See In re Bail Bond, supra at 543, n 2.
We note that the focus of MCR 6.106 upon ensuring both the defendant’s appearance and public safety may also provide some guidance in determining what circumstances are relevant to the “ends of justice.”
Consistent with the language of § 15(a), the trial court should articulate its decision in terms of whether the ends of justice “have been” thwarted, not in terms of whether returning the funds to the depositor “would” thwart the ends of justice. | [
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Per Curiam.
Plaintiffs appeal as of right from a circuit court order dismissing their claims against all defendants pursuant to defendants’ motion for summary disposition alleging a lack of subject-matter jurisdiction. We affirm.
Plaintiffs are the beneficiaries of a trust created by James Thomas Barnes, Sr. Plaintiffs filed this action in the Wayne Circuit Court against James Thomas Barnes, Jr., who was the trustee of the trust, and his attorney, John E. Amerman of the law firm Honigman Miller Schwartz and Cohn. The factual allegations forming the basis of plaintiffs’ second amended complaint (complaint) were that Barnes, Jr., aided by Amerman, breached his fiduciary duty as trustee, used the trust assets for his own purposes, and eviscerated the trust of its value, all of which caused plaintiffs to suffer financial and emotional damages. Specifically, plaintiffs’ complaint alleged tortious interference with a prospective advantage/expectancy, tortious interference with a trust/contractual relationship, intentional infliction of emotional distress, negligent infliction of emotional distress, legal malpractice, breach of contract, and unjust enrichment. The circuit court found that plaintiffs’ claims were within the exclusive jurisdiction of the probate court and dismissed the complaint pursuant to MCR 2.116(C)(4).
On appeal, plaintiffs argue that the circuit court erred in determining that the probate court had exclusive jurisdiction over plaintiffs’ emotional distress and malpractice claims merely because the cause of action arose out of the administration of a trust. We disagree. This Court reviews de novo a trial court’s grant or denial of summary disposition. Sargent v Browning-Ferris Industries, 167 Mich App 29, 33; 421 NW2d 563 (1988). When reviewing a motion for summary disposition under MCR 2.116(C)(4) alleging a lack of subject-matter jurisdiction, we must determine whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact. Id.
Circuit courts are courts of general jurisdiction, vested with original jurisdiction over all civil claims and remedies “except where exclusive jurisdiction is given in the constitution or by statute to some other court . . . .” MCL 600.605; MSA 27A.605; Bowie v Arder, 441 Mich 23, 50; 490 NW2d 568 (1992). The probate court, on the other hand, is a court of limited jurisdiction, deriving all of its power from statutes. D’Allessandro v Ely, 173 Mich App 788, 794; 434 NW2d 662 (1988). The jurisdiction of the probate court is set forth in § 21 of the Revised Probate Code (RPC), MCL 700.1 et seq.; MSA 27.5001 et seq., which provides:
The court has exclusive legal and equitable jurisdiction of all of the following:
(a) Matters relating to the settlement of the estate of a deceased person, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled out of state leaving an estate within the county to be administered, including, but not limited to, the following proceedings:
(i) The internal affairs of the estate.
(ii) Estate administration, settlement, and distribution.
(iii) Declaration of rights involving estates, devisees, heirs, and fiduciaries.
(iv) The construction of a will.
(v) The determination of heirs.
(b) Proceedings concerning the validity, internal affairs, and settlement of trusts, the administration, distribution, modification, reformation, and termination of trusts, and the declaration of rights involving trusts, trustees, and beneficiaries of trusts, including, but not limited to, the following proceedings to:
(i) Appoint or remove a trustee.
(ii) Review the fees of a trustee.
(iii) Require, hear, and settle interim or final accounts.
(iv) Ascertain beneficiaries.
(v) Determine any question arising in the administration or distribution of any trust, including questions of construction of wills and trusts; instruct trustees, and determine relative thereto the existence or nonexistence of an immunity, power, privilege, duty, or right.
(vi) Release registration of a trust.
(vii ) Determine an action or proceeding involving settlement of an inter vivos trust as provided in Act No. 185 of the Public Acts of 1966, being sections 555.81 to 555.84 of the Michigan Compiled Laws.
(c) Proceedings concerning guardianships, conservator-ships, and protective proceedings.
(d) Proceedings to review and settle the accounts of a fiduciary as defined in section 5, and to order, upon request of an interested person, instructions or directions to a fiduciary, concerning an estate within the court’s jurisdiction. [MCL 700.21; MSA 27.5021 (emphasis added).]
Therefore, defendants were entitled to summary disposition in the circuit court if plaintiffs’ claims came within the purview of this statute.
The primary goal of judicial interpretation of statutes is to ascertain the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The first criterion in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). Our Legislature is presumed to have intended the meaning it plainly expressed. McFarlane v McFarlane, 223 Mich App 119, 123; 566 NW2d 297 (1997). Subsection b(v) of § 21 of the RPC plainly provides that the probate court has exclusive jurisdiction over proceedings concerning the administration of trusts, including the determination of “any question arising in the administration or distribution of any trust . . . .” Because this language is straightforward and unambiguous, we will apply it as written without resort to the subordinate principles of statutory construction. See McFarlane, supra at 123.
In determining jurisdiction, this Court will look beyond a plaintiffs choice of labels to the true nature of the plaintiffs claim. See Silverman v Univ of Michigan Bd of Regents, 445 Mich 209, 216, n 7; 516 NW2d 54 (1994); In re Mahoney Trust, 153 Mich App 670, 678; 396 NW2d 494 (1986). In this case, count m of plaintiffs’ complaint alleged that plaintiffs suffered emotional distress damages because of defendants’ wilful breaches of duty in the administration of the trust. Similarly, count IV of the complaint alleged that plaintiffs suffered emotional distress damages because of defendants’ negligent acts and omissions with respect to the same conduct. Finally, count v of the complaint alleged that defendant Amerman engaged in legal malpractice. Plaintiffs claimed that Amerman owed fiduciary duties to them on the basis of a statement he allegedly made to the probate court in which he purported to represent them with respect to the trust at issue. Plaintiffs further alleged that Amerman breached these duties when he failed to disclose to plaintiffs the detrimental actions taken by defendant Barnes, Jr., with respect to the administration of the trust. Accordingly, it is clear from the face of the complaint that plaintiffs’ emotional distress and malpractice claims arose in the administration of a trast. Therefore, solely on the basis of the plain language of § 21 of the RPC, we conclude that these claims are within the exclusive jurisdiction of the probate court. See MCL 700.21(b); MSA 27.5021(b).
Plaintiffs’ reliance on York v Isabella Bank & Trust, 146 Mich App 1; 379 NW2d 448 (1985), is misplaced. In York, a panel of this Court held that subject-matter jurisdiction over a plaintiff’s claim of intentional infliction of emotional distress was properly within the circuit court rather than the probate court. Id. at 6. The plaintiff alleged in her complaint that she suffered emotional distress as a result of the defendant’s mishandling of her deceased husband’s estate. Id. at 3. The defendant was the personal representative of the estate. Id. The York panel reasoned that, because the plaintiff alleged injuries running directly to herself as opposed to the estate, and resolution of the intentional infliction of emotional distress claim would not be necessary to settle the estate, her claim could not be viewed as one “ ‘relating to the settlement of the estate.’ ” Id. at 6, quoting former MCL 700.21(a); MSA 27.5021(a); see also In re Kus Estate, 136 Mich App 343, 347; 356 NW2d 23 (1984). However, the reasoning of York is inapplicable here, because the issue in this case is not whether plaintiffs’ claim relates to the settlement of the estate under former MCL 700.21(a); MSA 27.5021(a), but whether it concerned the administration of a trust under the current version of MCL 700.21(b); MSA 27.5021(b).
For the reasons stated, we conclude that plaintiffs’ legal malpractice and intentional infliction of emotional distress claims were within the exclusive jurisdiction of the probate court and, therefore, hold that the trial court properly granted summary disposition of the claims pursuant to MCR 2.116(C)(4).
Affirmed.
At the same time, plaintiffs also filed a similar complaint against the same defendants in the Wayne County Probate Court.
Defendants’ conduct forming the basis of plaintiffs’ claims of emotional distress referred to in counts m and iv was factually alleged in counts I and n of the complaint. These counts were labeled, respectively, “Tortious Interference With a Prospective Advantage/Expectancy” and “Tortious Interference With a Trust/Contraetual Relationship,” and alleged, essentially, that defendants breached their duties with respect to the administration of the trust.
In 1989, § 21 of the rpc was amended by 1989 PA 69. The former version of the statute provided:
The court has exclusive jurisdiction of all of the following:
(a) Matters relating to the settlement of the estate of a deceased person, whether testate or intestate, who was at the time of death domiciled in the county or was at the time of death domiciled without the state leaving an estate within the county to be administered.
(b) Trusts and trustees in the execution of wills and administration of estates of deceased persons.
(c) Proceedings concerning the internal affairs of trusts including proceedings concerning the administration and distribution of trusts and the declaration of rights or the determination of other matters involving trustees and beneficiaries of trusts, including proceedings to:
(i) Appoint or remove a trustee.
(ii) Review the fees of a trustee.
(iil) Review and settle interim or final accounts.
(iv) Ascertain beneficiaries.
(v) Determine any question arising in the administration or distribution of any trust, including questions of construction of wills and trusts; instruct trustees, and determine relative thereto the existence or nonexistence of an immunity, power, privilege, duty, or right.
(vi) Release registration of a trust.
(d) Appointment of a guardian, limited guardian, or conservator in cases prescribed by law, resolution of any contested matter in respect to the estate or ward, and settlement of the estate.
Proponents of the 1989 amendment argued that it would “consolidate authority over wills, trusts, and estates, and more clearly establish the probate court as the entity responsible for such matters, thus simplifying tlie process.” House Legislative Analysis, HB 4462, April 12, 1989.
Because York was issued before the 1989 amendment of § 21, its value as persuasive authority in this case is dubious. Cf. Harry Becker & Co v Wabash R Co, 335 Mich 159, 164; 55 NW2d 776 (1952) (“We have no difficulty in holding that a case decided prior to the enactment of the amendment is not any authority for the interpretation of the amendment.”). | [
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White, J.
The charging party, Organization of School Administrators and Supervisors, AFSA, AFL-CIO (OSAS), appeals from an order of the Michigan Employment Relations Commission (merc) dismissing the unfair labor practice charges it brought against respondent, Detroit Board of Education. The OSAS argues that the MERC erred in concluding that respondent did not violate its statutory duty to bar gain by unilaterally reducing rates of pay and hours of w ork for certain school administrators and that the merc erred in failing to exercise its statutory jurisdiction and deferring to arbitration the osas’s charge relating to respondent’s unilateral reduction of rates of pay. Respondent cross appeals from the same order, arguing that the MERC erred in finding that the hours at issue were not overtime.
We conclude that the MERC did not err in finding no unfair labor practice with regard to respondent’s limiting the work hours of the adult education department heads and allegedly changing their compensation. However, we vacate the merc’s finding that the adult education department heads’ evening work was not overtime, because the osas’s counsel conceded the contrary during oral argument before this Court. We affirm the merc’s conclusion that respondent had no duty to bargain regarding the reduction of hours of the vocational-technical administrators’ evening work. Regarding the merc’s disposition of the osas’s charge based on a unilateral change in the method of compensating the vocational-technical administrators’ evening work, from a per diem to hourly rate, we remand with instructions that the MERC address this issue anew and provide a clear explanation for its decision that there was no unfair labor practice. Regarding respondent’s cross appeal, we conclude that the merc’s finding that the vocational-technical administrators’ evening hours were not overtime was supported by competent, material, and substantial evidence on the whole record.
i
Respondent operates an adult education program consisting of a vocational-technical training component, which teaches job skills, and an adult basic education component, which teaches basic skills such as reading and math, leading to a high school equivalency diploma. The adult basic education courses are taught principally at night, at numerous sites throughout the city of Detroit. The vocational-technical courses are taught at respondent’s three vocational centers.
The OSAS is the bargaining agent for supervisors and administrators employed by respondent, including those responsible for supervision of the teachers in the vocational-technical and adult basic education programs. At pertinent times, there were three principals responsible for the vocational-technical program; seven department heads responsible for the adult basic education program; and two central office administrators responsible for the overall operation of both programs.
The collective bargaining agreement in effect at the time of this dispute covered the period between July 1, 1992, and June 30, 1994. In December 1993, the state Legislature reorganized school funding, cutting adult education funding in Detroit by about fifty-three percent and making student eligibility more stringent.
On January 7, 1994, Dr. Arthur Carter, respondent’s deputy superintendent of government relations and community services, who was responsible for the adult education program, sent a memo to the directors of adult education stating that the budget had been reduced, projections indicated a deficit may exist in the current year in adult education, and there would be further reductions the next year. The memo stated that effective January 20, 1994, there would be a fifty percent reduction in hours for all administrative staff working for adult education in an additional assignment capacity and that all such staff would be paid at the hourly department-head rate. After the OSAS requested bargaining, the parties met on February 15, 1994. After the meeting, Dr. Carter rescinded his January memo. He issued a new memo on February 17, 1994, stating that it superseded “all previous communications regarding administrative schedules and working hours.” The February memo stated that effective February 28, 1994:
1. All vocational/technical administrators will be paid for no more than 24 hours biweekly at the department head rate. Schedules should be adjusted to allow for sufficient administrative coverage. . . .
* * *
3. No administrator or teacher in adult education will be paid for overtime unless approved, in writing, by me. I strongly discourage all overtime.
The parties met again on March 2, 1994, and discussed the issue of “overtime” for the vocational-technical administrators. No resolution was reached, and the parties agreed to meet again.
The OSAS filed an unfair labor practice charge against respondent on March 4, 1994, alleging violations of the public employment relations act (pera), MCL 423.201 et seq.; MSA 17.455(1) et seq. The charge stated that the vocational-technical administrators worked on a full-time basis as building officials, while working part-time as administrators of the evening vocational-technical program, and that “[sjchedules have typically required these administrators to supervise programs on a daily basis, usually approaching 24 hours per week.” The charge further stated that the osas and the board had been bargaining to replace an agreement scheduled to expire June 30, 1994, and that issues discussed had included hours to be worked and rates of pay for vocational-technical administrators. The charge stated that the parties were involved in preliminary bargaining and that neither party had suggested that an impasse existed. Finally, the charge stated, in part:
7. Notwithstanding the pendency of bargaining, and the absence of any impasse, on February 17, 1994 the Board unilaterally capped the number of hours a vocational/technical administrator might work. The change was made without prior consultation with or agreement of the Union.
8. The unilateral change violates the Act for the reason that:
A. The change was unilateral. The Union neither approved nor consented to the modification.
B. The change was commenced absent impasse or any warning that the change might be imposed.
C. The change was imposed without initiating or exhausting dispute resolution procedures available under the Act.
D. The change was initiated although the Union had demanded bargaining on the issue, the parties had not reached a conclusion to that process.
The OSAS’s unfair labor charge did not mention the adult education department heads.
The parties met again on April 27, 1994. Subsequently, the parties met for the purpose of negotiating the successor collective bargaining agreement on May 10, 19, 24, and June 22, 1994. The OSAS did not raise the issue of overtime or supplemental pay at any of the May and June meetings. The parties reached a settlement on the successor agreement on June 22, 1994, and a new contract was ratified, which did not contain any modifications regarding the issues presented here.
Respondent filed its answer on October 7, 1994. Respondent denied that bargaining was in a preliminary state, stating that “a new agreement has been reached covering all issues between the parties; that any claim here has been waived by the Charging Party, having had the opportunity to bargain concerning same.” Respondent denied that it had unilaterally capped the vocational-technical administrators’ evening hours, stating that it had bargained “even prior to bargaining over negotiations of the new contract [and] that all issues between the parties have been settled.” Respondent denied that the change in hours violated § 10 of the pera, MCL 423.210; MSA 17.455(10), stating that it was “exercising its right to determine when, how, and where delivery of services should be made and to determine and control overtime.”
A three-day hearing was held, after which the hearing referee recommended that the charges be dismissed in their entirety:
The question presented here is whether an Employer may change or eliminate supplemental employment without first bargaining to impasse or agreement with a Union representing these employees in their regular assigned employment.
It is concluded that the Detroit Board of Education had the right to assign, reassign or eliminate additional overtime, supplemental (or by whatever terminology) assignments in the Adult Education Program without bargaining with the Charging Party to impasse or agreement. These assignments are not the bargaining unit work that is contemplated in the collective bargaining agreement. There was no impact on bargaining unit work.
íH $ ^
The Employer met and bargained the impact of its decision. The Charging Party had ample opportunity to discuss these events during the period of negotiations for a successor collective bargaining agreement, but chose not to do so because, as the Union states, it would have been futile. Whether or not the Employer met individually with the employees affected by the additional work cuts is immaterial, as the subject matter is not a mandatory subject of bargaining.
The MERC affirmed the hearing referee’s conclusion that respondent did not violate its duty to bargain, but for different reasons:
First, we disagree with the Administrative Law Judge that these assignments fell into the category of “overtime.” Both the adult basic education administrators and the vocational education administrators had two separate jobs. First, they administered Respondent’s daytime adult education or vocational education programs, for which they were paid a salary. Secondly, they administered Respondent’s evening adult education programs. The adult basic education administrators were paid an hourly rate for their second job. The vocational education administrators were paid on a per diem basis.
We also disagree with the Administrative Law Judge that the administrators’ evening jobs did not constitute bargaining unit work. This work clearly fell within the scope of the work performed by the bargaining unit and covered by the contract. Moreover, it was treated as such by the parties, as exemplified by the fact that Respondent gave Charging Party notice of its proposed actions. The fact that the evening programs were administered by the same administrators who supervised the daytime programs is not relevant to the question of whether the work constituted bargaining unit work. . . .
However, we agree with the Administrative Law Judge’s ultimate conclusion that Respondent had no duty to bargain. We find that Section 9.0 of the parties’ 1992-1994 contract waived Charging Party’s right to demand bargaining over changes in the hours of jobs within the unit. In this case, the hours of the vocational education administrators’ evening jobs were reduced. The evening jobs of the adult basic education administrators were merged into their daytime jobs, so that time worked in the evening reduced the number of hours worked during the day. In both cases, these actions were explicitly authorized by the language of Section 9.0 which states, “It is understood that this provision does not preclude the setting of hours by the Board or the General Superintendent when necessary . . . . ”
In addition to reducing the hours of both groups, the. Respondent also changed the method of compensating vocational education administrators for their evening work. Prior to March 2, 1994, the vocational education administrators were paid on a per diem basis, whereas after this date they were paid on an hourly basis. However, according to Charging Party, the per diem rate paid to vocational education administrators for their evening work is set out in the parties’ contract. Therefore, the dispute constitutes a bona fide dispute over whether this provision of the contract was breached by the change in the method of compensation. Under these circumstances, the dispute should be resolved through the parties’ grievance arbitration mechanism. . . .
The OSAS filed a motion for reconsideration, which the MERC denied by stating in pertinent part:
[W]e disagree with Charging Party that in concluding that the dispute over the change in the method of paying vocational education administrators constituted a bona fide dispute over contract interpretation we “deferred the matter to arbitration” contrary to Detroit Fire Fighters v Detroit, 408 Mich 663 [293 NW2d 278] (1980). Rather, we simply found that no unfair labor practice was committed under these circumstances.
This appeal ensued.
n
The osas first argues that the merc erred in concluding that respondent did not violate its statutory duty to bargain by unilaterally reducing hours of work and rates of pay for certain school administrators.
Appellate review of a MERC decision is limited. Detroit Police Officers Ass’n v Detroit, 212 Mich App 383, 388; 538 NW2d 37 (1995), aff’d 452 Mich 339 (1996). Legal rulings of an administrative agency are set aside if they are affected by a substantial and material error of law; factual findings of the MERC are conclusive if supported by competent, material, and substantial evidence on the whole record. MCL 423.216(e); MSA 17.455(16)(e); Const 1963, art 6, § 28; Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Michigan Transportation Authority, 437 Mich 441, 450; 473 NW2d 249 (1991).
The party asserting a claim under the pera has the burden of establishing an unfair labor practice. MCL 423.210; MSA 17.455(10). Public employers have a duty to bargain over wages, hours, and other terms and conditions of employment. MCL 423.215(1); MSA 17.455(15)(1). Under the pera, an employer commits an unfair labor practice if, before bargaining, it unilaterally alters or modifies a term or condition of employment, unless the employer has fulfilled its statutory obligation or has been freed from it. Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309, 317; 550 NW2d 228 (1996).
The procedure for determining whether an employer must bargain before altering a mandatory subject of bargaining involves a two-step analysis: Is the issue the union seeks to negotiate covered by or contained in the collective bargaining agreement? If not, did the union somehow relinquish its right to bargain? Id. at 322, n 16, citing Dep’t of Navy v Federal Labor Relations Authority, 295 US App DC 239, 252; 962 F2d 48 (1992). “ ‘A waiver occurs when a union knowingly and voluntarily relinquishes its right to bargain about a matter; but where the matter is covered by the collective bargaining agreement, the union has exercised its bargaining right and the question of waiver is irrelevant.’ ” Port Huron Ed Ass’n, supra at 319, quoting Dep’t of Navy, supra at 248.
“Indeed, the difference between the two concepts goes to the structural heart of labor law. When parties bargain about a subject and memorialize the results of their negotiation in a collective bargaining agreement, they create a set of enforceable rules — a new code of conduct for themselves — on that subject. Because of the fundamental policy of freedom of contract, the parties are generally free to agree to whatever specific rules they like, and in most circumstances it is beyond the competence of the Authority, the National Labor Relations Board or the courts to inter fere with the parties’ choice. ... On the other hand, when a union waives its right to bargain about a particular matter, it surrenders the opportunity to create a set of contractual rules that bind the employer, and instead cedes full discretion to the employer on that matter. For that reason, the courts require ‘clear and unmistakable’ evidence of waiver and have tended to construe waivers narrowly.” [Port Huron Ed Ass’n, supra at 319, quoting Dep’t of Navy, supra at 248.]
A
Section 9.0 of the collective bargaining agreement states:
9.0 HOURS OF WORK
In order to attain ultimate efficiency in the operation of the Detroit Public Schools and to provide the best possible educational program to the pupils served thereby, it is essential for administrative and supervisory personnel to work a schedule which reasonably permits the flexibility necessary for the achievement of such goals. Such a schedule may, at times, involve work in and out of the school building and, at times, frequently outside the regular school day. The professional discretion of good administrators and supervisors in scheduling their hours of work shall be respected insofar as such discretion is reasonable and is consistent with the school program and its aforestated aims. Professional discretion may be denied for good and sufficient reason. It is understood that this provision does not preclude the setting of hours by the Board or the General Superintendent when necessary, and is not intended to supersede the requirements of any leave policy. In instances where the General Superintendent or Administrative Heads have established regular work hours, prior approval for any deviation by administrators and supervisors is required.
We again observe that the hours issue we consider concerns only the vocational-technical administrators, because the OSAS’s counsel conceded during oral argu ment that the adult-education department heads’ evening work was overtime and that respondent could properly limit these hours.
B
We conclude that the MERC did not err as a matter of law in interpreting § 9.0. Section 9.0 states a general principle of professional discretion regarding hours, but recognizes that the board or general superintendent may set work hours when necessary, and that there might be instances where the general superintendent or administrative heads set hours. There was no testimony that, before this dispute, the vocational-technical administrators’ evening hours were ever the subject of bargaining. Thus, the MERC did not err in concluding that the subject was covered by § 9.0 and that § 9.0 granted the board or general superintendent the authority to set hours when necessary and therefore no additional bargaining was required.
That § 9.0 covered the issue and stated a general principle of professional discretion subject to respondent’s overriding right to set hours is also supported by (1) the language of § 9.0, including its title, “Hours of Work”; (2) the statement of the OSAS’s counsel during oral argument, in response to a question regarding how hours had been set before this dispute, that the hours were “set by management” and the union did not object to the number of hours originally assigned; (3) the testimony of Dr. Kimberly Peoples, director of the adult education program at the Golightly Career and Technical Center from 1985 to 1994, that from 1985 to 1992 she worked two evenings a week, i.e., about twelve hours weekly, on the recommendation of the administration, and in 1992 increased her hours to four evenings a week, when the adult education program was going through a restructuring; and (4) the testimony of Dr. Arthur Carter that he was unaware of, and never approved, Dr. Peoples’ increasing her evening work from two to four evenings a week in 1992. Under these circumstances, although our analysis differs slightly with regard to the concept of waiver, we conclude that the MERC did not err in concluding that under § 9.0 respondent had no duty to bargain on the issue of capping the vocational-technical administrators’ evening work at twenty-four hours biweekly.
We therefore affirm the merc’s determination that respondent did not violate its statutory duty to bargain on the issue of capping the vocational-technical administrators’ work hours.
m
The osas’s remaining argument with respect to the adult education department heads is that respondent unilaterally implemented a compensatory time-off scheme in lieu of paying overtime. The testimony at the hearing does not support the claim that the rate of compensation for overtime, if authorized, was unilaterally modified; nor did the OSAS present any documentary evidence to support the claim that respondent had implemented a change in rate of pay. Thus, we conclude that the MERC did not err in finding no unfair labor practice with regard to the adult education department heads’ pay.
IV
The osas next argues that the merc erred in refusing to exercise its statutory jurisdiction and instead deferring to arbitration the issue regarding respondent’s change in the method of compensation of the vocational-technical administrators from per diem to hourly.
Although the osas asserts that the merc erred in deferring the unfair labor practice charge to arbitration, it appears that the merc simply found that there w as no unfair labor practice. Nevertheless, neither the merc’s original opinion nor its opinion regarding the osas’s motion for reconsideration clearly explains why it concluded that there was no unfair labor practice. We therefore remand to the merc with instructions to address this issue anew and to provide a clear explanation of the reasons for its decision.
v
On cross appeal, respondent argues that the merc erred in refusing to find that the hours at issue were overtime or supplemental hours and that respondent could thus modify them without bargaining, even though the MERC ultimately found for other reasons that respondent had no obligation to bargain over its actions. As we have already observed, the osas’s counsel conceded during oral argument that the adult education department heads’ evening work was an extension of their normal work and thus overtime. Therefore, the merc’s contrary finding is vacated.
Regarding the vocational-technical administrators, we conclude that the merc’s factual finding that their evening assignments were within the scope of work performed by the bargaining unit and were covered by the contract is supported by competent, material, and substantial evidence on the whole record.
Affirmed in part, vacated in part, and remanded in part. We do not retain jurisdiction.
Markey, P.J., concurred.
The order is dated February 2, 1996.
During oral argument before this Court, the osas’s counsel stated that, in contrast to the vocational-technical administrators, the adult education department heads’ evening hours were an extension of the work they performed during the day. The osas’s counsel further stated that the union did not contest respondent’s right to determine that the adult education department heads could not work in the evening without permission. We thus disagree with the dissenting opinion on this issue, although we agree that the osas asserts that there was a unilateral change in the compensation for overtime. This claim is addressed in part in.
We note that respondent’s answer responded to paragraphs ten through thirteen of the osas’s charge. However the copy of the osas’s charge in the record is only nine paragraphs long, and the docket printout does not indicate it ever amended its charge. Respondent’s answer also refers to a “first” and “second” violation, while the osas’s charge refers to only one.
This particular waiver argument was not addressed by the merc, but w;is by the hearing referee. See infra, pp 62-63.
The osas argues that respondent has no standing to raise this issue because it is not an aggrieved party. Pursuant to MCL 423.216(e); MSA 17.455(16)(e), any party aggrieved by a final order may seek review of a merc order in this Court with respect to an unfair labor practice charge. The merc ruled that the work assignments at issue were bargaining unit work and not overtime. Such a ruling directly affects respondent’s bargaining rights because overtime is not part of regular wages and may be unilaterally reduced by an employer. Roseville v Police Officers Ass’n of Michigan, 1987 MERC Lab Op 182; St Clair Co Rd Comm v Local 516M, Service Employees Int’l Union, AFL-CIO, 1992 MERC Lab Op 316. Respondent is therefore an aggrieved party because the merc’s order affects respondent’s rights and bears directly on its interests. Grace Petroleum Corp v Public Service Comm, 178 Mich App 309, 312-313; 443 NW2d 790 (1989); Midland Cogeneration Venture Ltd Partnership v Public Service Comm, 199 Mich App 286, 304; 501 NW2d 573 (1993). | [
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Brickley, J.
In this premises liability action, we consider whether defendant-appellant Chemical Bank, as the mortgagee and nominal owner during the mortgage foreclosure redemption period, should be considered a “possessor” for purposes of premises liability. In the present case, plaintiff-appellee realtor was injured while showing the foreclosed property during the statutory right of redemption period. Her ensuing premises liability action resulted in judgment against defendant-appellant Chemical Bank, and the Court of Appeals affirmed. We find that the bank was not a “possessor” of the property and, therefore, reverse the decision of the Court of Appeals and remand this case to the circuit court for entry of a judgment of no cause of action in favor of defendant-appellant Chemical Bank.
i
In 1979, Aldon and Nancy Hines purchased a house in Bay City. They financed most of the purchase price with a mortgage that they obtained from defendant-appellant Chemical Bank & Trust Company. The ten- year mortgage provided for a “balloon” payment of the entire balance in June 1989. The Hineses lived in the house from 1979 until late October 1989.
Over the years, the Hineses occasionally fell behind on their payments, but were able to catch up. Employment problems caused more serious difficulty in 1988 and 1989. The parties arrived at an interim solution, but soon the Hineses were again in arrears. Their final payment was made in August 1989. By that point, the final balloon payment was overdue.
On August 1, 1989, the bank notified the Hineses in writing of its intention to begin a foreclosure by advertisement. MCL 600.3201 et seq.-, MSA 27A.3201 et seq. The bank’s letter gave a figure in excess of $50,000 for the total amount due, including principal, interest, and late fees.
In September 1989, the Hineses listed their house for sale with Dial Real Estate. In October, the bank initiated the foreclosure process. Near the end of that month, the Hineses moved out of the house and into an apartment. The parties disagree with regard to the reason for the move. The Hineses say the bank ordered them to move and that Ms. Hines mailed their only key to W. Roger Mikusek, the bank loan officer who was handling this file. Mr. Mikusek and the bank deny those allegations.
A sheriff’s sale was held in November 1989. The bank bid the amount owed by the Hineses, and received a sheriffs deed. Under the foreclosure statute, however, a homeowner has six months to redeem a foreclosed house, and a sheriff’s deed does not actually take effect until the redemption period expires.
After moving out in October, Nancy Hines instructed the utility companies to have all the service billings put in the name of the bank. The bank’s only involvement with the property during the redemption period was to observe the house from the street, confirm with the realtor that the heat was operating in the home, pay the utilities, and list the property on the bank’s insurance policy because the homeowner had allowed the insurance coverage to lapse for nonpayment of premiums. At no time did any representative of the bank enter the house.
At some point, the Hineses renewed the listing for an additional three months and reduced the asking price. The bank emphasizes that this demonstrates the Hineses’ continued exercise of dominion over the property.
Plaintiff Sally J. Kubczak is a real estate agent for Bay City Realty Company. On March 14, 1990, six weeks before the end of the redemption period, she made arrangements with the listing agency, Dial Real Estate, to show the house to one of her clients. As she and her clients were leaving through the garage, she slipped and fell, sustaining a broken hip that required surgery. Plaintiff alleges that her fall was caused by a combination of oil, water, and leaves that made the garage floor dangerously slippery.
The last day for the Hineses to redeem the property from foreclosure was May 3, 1990. A few weeks before that date, another real estate agent found potential buyers but, because of the foreclosure situation and IRS tax liens, it became apparent that the deal could not be finalized before May 3. The bank agreed to sell the house for the real estate agency after the sheriff’s deed took effect, and, on May 9, 1990, the house was sold for $65,000. The bank received approximately $58,000, which covered the mortgage balance, interest, late fees, and foreclosure costs, while the IRS realized about $4,000 from its liens. After the usual closing costs were paid, the real estate agency received as commission the remainder of the proceeds, an amount slightly under $3,000. The Hineses received nothing from the sale, owing both to the fact that their equity of redemption had expired and that no balance was left after everyone else had been paid.
In October 1990, plaintiff brought the present suit against Chemical Bank, Dial Real Estate Agency, and the Hineses. Dial settled the claim for $10,000, and the cause continued to trial against the bank. The basis for plaintiffs complaint was that, at the time of her March 1990 accident, the bank was the “possessor” of the property and she was a business invitee of the bank. The trial court denied the bank’s motion for a directed verdict, ruling that the evidence would permit the jury to find that the bank had been a possessor of the property, even if the possession had been nonexclusive and the Hineses also had remained possessors. The bank preserved this issue by timely objection. The jury found for plaintiff and, answering specific questions, found that the bank was a possessor of the premises at the time plaintiff fell and was negligent, and that the bank’s negligence was a proximate cause of her injury. After reductions for comparative negligence, the settlement with Dial, and payments from collateral insurance sources, plaintiff was awarded approximately $78,500, plus costs and judgment interest.
In an unpublished per curiam opinion, the Court of Appeals upheld the circuit court’s ruling that a jury could find the bank to have been in possession of the premises, stating:
The trial court did not err in refusing to direct a verdict in favor of defendant on the issue of possession and control. Premises liability is conditioned upon the presence of possession and control, not necessarily ownership. Merritt v Nickelson, 407 Mich 544; 287 NW2d 178 (1980). Moreover, a mortgagee may be placed in possession by the mortgagor. Morse v Byam, 55 Mich 594; 22 NW 754 (1885). The evidence presented was sufficient to support the verdict that defendant was a possessor of the premises.
The bank applied for leave to appeal, which this Court granted. 454 Mich 921 (1997).
n
It is well established, as the Court of Appeals noted, that “[pjremises liability is conditioned upon the presence of both possession and control over the land.” Merritt v Nickelson, supra at 552; Orel v Uni-Rak Sales Co, Inc, 454 Mich 564; 563 NW2d 241 (1997).
In the present case, the bank had no legal right of possession during the six-month redemption period. It is certainly true, as the Court of Appeals stated, that the Hineses, as mortgagors, had the authority to place the mortgagee-bank in possession of the premises. However, we have consistently given careful scrutiny to any transaction in which a mortgagor waives its statutory right of redemption. The rule we stated in Massachusetts Mut Life Ins Co v Sutton, 278 Mich 457, 461; 270 NW 748 (1936), remains sound:
[I]t has been the definite and continuous policy of this State to save to mortgagors the possession and benefits of the mortgaged premises, as against the mortgagees, until expiration of the period of redemption.
Thus, a mortgagee can obtain possession, but only for consideration, id. at 463, and pursuant to an explicit agreement. Bennos v Waderlow, 291 Mich 595, 600; 289 NW 267 (1939); Russo v Wolbers, 116 Mich App 327; 323 NW2d 385 (1982).
Nothing in the record indicates that any agreement was made between the bank and the Hineses that would provide the bank with the immediate right to possess the foreclosed property. The fact that the bank was the high bidder at foreclosure proceedings did not grant it any rights of ownership or possession, but, rather, gave the bank a contingency interest in the property with respect to title ownership. Accordingly, any interest the bank had would not vest until after expiration of the redemption period.
The bank asserts that because it was not entitled to immediate occupation of the land under our mortgage law, it could not have been a “possessor” of the property in question for purposes of premises liability. Although we agree that the bank had no legal right of possession before May 3, 1990, possession for purposes of premises liability does not turn on a theoretical or impending right of possession, but instead depends on the actual exercise of dominion and control over the property. Merritt, supra. If we were to accept the bank’s formulation, one who wrongfully exercised dominion and control over property would escape liability solely on the basis that there was no legal or theoretical possession.
The purpose behind the principle requiring actual possession and control was best expressed in Nezworski v Mazanec, 301 Mich 43, 56; 2 NW2d 912 (1942):
“It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury and therefore rests primarily upon him who has control and possession.”
* * *
“Liability for negligence does not depend upon title; a person is liable for an injury resulting from his negligence in respect of a place or instrumentality which is in his control and possession, even though he is not the owner thereof.” [Citations omitted; emphasis added.]
In the present case, plaintiff alleges that she was injured because the parties who were in possession and control allowed a dangerous condition to develop on the garage floor. As we observed in Nezworski, supra, it is appropriate to impose liability on the person who created the dangerous condition or who had knowledge of and was in a position to eliminate the dangerous condition. Plaintiff asserts that the bank’s actions toward the mortgaged property meet the requisite level of control for purposes of premises liability. We disagree.
The record before us indicates that the bank commenced foreclosure by advertisement proceedings on October 5, 1989. A foreclosure sale occurred on November 3, 1989, and the statutory period of redemption expired on May 3, 1990. The bank’s only involvement with the property during the redemption period was to observe the house from the street, pay the utilities after the Hineses changed the billing, confirm with the realtor that the heat was operating in the home, and list the property on the bank’s insurance policy once the Hineses allowed their insurance to lapse. On these actions, which comprise the sum and substance of the bank’s conduct toward the mortgaged premises, we do not find the requisite control. In reviewing a trial court’s ruling on a motion for a directed verdict, this Court examines “the testimony and all legitimate inferences that may be drawn in the light most favorable to the [nonmoving party].” Mulholland v DEC Int’l Corp, 432 Mich 395, 415-416; 443 NW2d 340 (1989). Here, making all reasonable inferences in plaintiff’s favor, we conclude that the trial court erred in denying the bank’s motion for a directed verdict and, accordingly, the Court of Appeals erred in affirming the trial court’s ruling.
It is clear to us that the bank’s limited actions during the redemption period were taken in connection with the foreclosure proceedings and for the sole purpose of preserving the value of the premises during the redemption period. Rather than accepting plaintiff’s assertion that these actions evidenced an exer cise of control over the property, we believe that the bank’s actions are better characterized as those of a secured party concerned with preserving the value of its collateral asset.
m
On the record before us, we can locate no basis for finding the bank liable as a “possessor” for the painful accident that befell Ms. Kubczak. We find that the bank did not exercise the requisite dominion and control over the property and, therefore, cannot be considered a “possessor” for purposes of premises liability. Accordingly, we reverse the decision of the Court of Appeals and remand this case to the circuit court for entry of a judgment of no cause of action in favor of defendant-appellant Chemical Bank.
Mallett, C.J., and Boyle, Weaver, and Taylor, JJ., concurred with Brickley, J.
The bank also appeals the decision below, finding that plaintiff was a business invitee of the bank. Our determination that the bank was not a “possessor” for purposes of premises liability makes resolution of that issue unnecessary.
The applicable redemption statute, MCL 600.3240(4); MSA 27A.3240(4), provides in part:
[I]f the amount claimed to be due on the mortgage at the date of the notice of foreclosure is more than 66-2/3% of the original indebtedness secured by the mortgage, the redemption period shall be 6 months.
This provision is now found in MCL 600.3240(8); MSA 27A.3240(8), as amended by 1996 PA 214.
MCL 600.3236; MSA 27A.3236 governs the effect of a mortgagor’s failure to redeem:
Unless the premises described in such deed shall be redeemed within the time limited for such redemption as hereinafter provided, such deed shall thereupon become operative, and shall vest in the grantee therein named ... all the right, title, and interest which the mortgagor had at the time of the execution of the mortgage ....
Although the parties stipulate that the redemption period was six months, the period is shortened to one month if the mortgagors abandon the property. MCL 600.3240(6); MSA 27A.3240(6) (this provision is now MCL 600.3240[10]; MSA 27A.3240[10], as amended by 1996 PA 214). Although the bank evidently considered whether it could invoke that provision, its apparent conclusion was that the Hineses’ action of listing the property for sale precluded the bank from arguing that they had abandoned the house.
Dial controlled access to the property by placing a key, obtained from the Hineses, in a realtor’s lockbox on the door of the house. It was through the use of this key that plaintiff gained access to the house on the day she was injured.
A default judgment was entered against the Hineses, who have since discharged the judgment in bankruptcy.
6 Issued February 9, 1996 (Docket No. 166480).
Alternatively, a mortgagee can gain possession if the mortgagor abandons the property. See n 3. The plaintiff has disclaimed this theory in both the circuit court and this Court.
The statutes applicable to mortgaged property permit a mortgagee to maintain payments of taxes and insurance premiums if the mortgagor fails to make those payments, particularly during a redemption period. MCL 600.2927; MSA27A.2927, MCL 600.3240; MSA 27A.3240.
Plaintiff asserts that the bank’s officer, W. Roger Mikusek, made misrepresentations to the Hineses concerning their rights during the redemption period. We note that the alleged misrepresentations, even if true, were not actions toward the property and, although potentially actionable by the Hineses in their own right, are irrelevant to the instant issue of premises liability. Similarly, the dissenting opinion’s discussion of possible fraud, oppression, or overreaching does not bear on whether the bank exercised the requisite control to subject it to liability for plaintiff’s injury under a premises liability theory. | [
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Weaver, J.
Appellant State Treasurer presents two questions of first impression for this Court. First, whether the Public School Employees Retirement Act, MCL 38.1301 et seq.; MSA 15.893(111) et seq., nonassignment provision, which protects a public employee’s pension from legal process, has priority over the State Correctional Facility Reimbursement Act, MCL 800.401 et seq.; MSA 28.1701 et seq., reimbursement provision that specifically includes “pension benefits” as “assets” that may be subject to a prisoner’s statutory obligation to reimburse the state for his incarceration costs.
The Court of Appeals found that the pension act’s nonassignment provision prevailed over the reimbursement act’s reimbursement provision and that the pension funds at issue were insulated from creditors even after dispensation to the fund recipient.
We reverse the Court of Appeals and hold that the reimbursement act has priority over the pension act in that the nonassignment provision does not insulate a public school employee’s pension from the reimbursement provision.
i
On April 10, 1991, codefendant Jon Schuster was sentenced to two and one-half to fifteen years in prison, following his February 14, 1991, conviction of criminal sexual conduct. Plaintiff brought this action under the State Correctional Facility Reimbursement Act, seeking reimbursement for the costs of incarcerating Schuster in a state correctional facility. Those costs totaled approximately $22,000 for the first sixteen months of incarceration, and would continue to accrue during the remainder of Schuster’s incarceration.
The state claimed the only potential source of reimbursement, or “asset” as defined by the reimbursement act, was Schuster’s retirement allowance. Schuster was receiving in excess of $2,000 a month from his pension. The monthly pension checks were sent to Schuster’s home address and were deposited in a bank account that was held jointly by Schuster and his wife under a power of attorney arrangement.
Pursuant to the reimbursement act, the state sought to obtain ninety percent of the deposited pension. Schuster attacked the legality of the state’s action, claiming that the pension funds in question were entirely protected from collection by legal process under the nonassignment provision of the pension act.
The circuit court judge held that Schuster’s pension was an asset subject to the reimbursement scheme and could, therefore, be considered in evaluating Schuster’s ability to reimburse the state for the costs of his incarceration, even though Schuster’s pension was, in fact, his only asset. The circuit court further found that the state could attach these pension payments after they were paid to Schuster. Upon motion, the circuit court conducted two days of hearings regarding Schuster’s “assets” and his legal and moral obligations to his wife and dependents. On April 23, 1993, the judge ordered Schuster to pay fifty percent, rather than the petitioned ninety percent, of his pension monies, or $1,000 a month, to the state pursuant to the reimbursement act. The court entered a final order to that effect on August 11, 1993, and later denied defendants’ motion for reconsideration.
The Court of Appeals reversed the circuit court’s order and opinion, and held that the nonassignment provisions of the pension act had priority over the reimbursement act. The Court of Appeals further held that the pension funds continued to be shielded from creditors even after payments were made to the fund beneficiary, in this case Schuster’s wife.
We granted leave to appeal to decide whether the reimbursement act subjects Schuster’s pension to reimbursement for the costs of his incarceration despite the pension act’s nonassignment provision.
n
Resolution of this matter requires this Court to examine an apparent conflict between two legislative enactments.
The State Correctional Facility Reimbursement Act provision at issue was originally enacted in 1935 as part of the Prison Reimbursement Act. The basic purpose of the act was to ensure that prisoners shoulder the burdensome cost of their incarceration, to the extent possible, rather than law-abiding taxpayers. In 1984, the act was amended and renamed the State Correctional Facility Reimbursement Act, with the same intent to “provide procedures for securing reimbursement to the state of the expenses incurred by the state for the cost of care of certain prisoners in state correctional facilities . . . .” As amended, the reimbursement act contained the following sweeping definition of a prisoner’s “assets” subject to the act:
(a) “Assets” means property, tangible or intangible, real or personal, belonging to or due a prisoner or former pris oner including income or payments to such prisoner from social security, worker’s compensation, veteran’s compensation, pension benefits, previously earned salary or wages, bonuses, annuities, retirement benefits, or from any other source whatsoever, but does not include any of the following:
(i) The homestead of the prisoner up to $50,000.00 in value.
(ii) Money received by the prisoner from the state as settlement of a claim against the department from the prisoner.
(iii) A money judgment received by the prisoner from the state as a result of a civil action in which the department was named defendant and found to be liable.
(iv) Money saved by the prisoner from wages and bonuses paid the prisoner while he or she was confined to a state correctional facility. [MCL 800.401a; MSA 28.1701(1) (emphasis added).]
According to the plain language above, the Legislature, in 1984, decided to subject all pension payments to the reimbursement scheme specifically, and without exception. Moreover, the Legislature declined to include pension payments in the list of express statutory exceptions to the reimbursement act, which was revised by 1996 PA 286. MCL 800.401a(a)(i), (ii); MSA 28.1701(l)(a)(i), (ii). Nonetheless, Schuster claims that his pension payments are not subject to the reimbursement act. Indeed, he maintains that the nonassignment provision of the pension act has priority.
The Public School Employees Retirement Act was created in 1945 to establish and govern the pensions of public school employees. Such pensions are expressly insulated from creditor attack through “legal process” by the following:
Except as otherwise provided in this section, a retirement allowance, an optional benefit, or any other benefit accrued or accruing to a person under this act, the reserves created by this act, and the money, investments, or income of those reserves are exempt from state, county, municipal, or other local tax and are not subject to execution, garnishment, attachment, the operation of bankruptcy or insolvency laws, or other process of law. The right to a retirement allowance, an optional benefit, or any other benefit accrued or accruing to a person under this act is unassignable, except as specifically provided in this act. [MCL 38.1346(1); MSA 15.893(156)(1) (emphasis added).]
In 1991, the Legislature amended this provision to specifically subject pension payments to alimony, child support orders, and eligible domestic relations orders. The Legislature has not, however, expressly subjected pensions to the reimbursement provisions.
Given this apparent conflict between the State Correctional Facility Reimbursement Act and the Public School Employees Retirement Act, this Court is asked to resolve the relative priority of the two enactments and whether the reimbursement act subjects Schuster’s pension payments to reimbursement for incarceration costs, regardless of their source.
The Court of Appeals resolved this conflict in favor of the pension act, finding Schuster’s pension payments were entirely insulated from creditors and the reimbursement provision. The Court awarded the pension act priority status because it found, as between the two statutes, that it was the more specific and was the most recently amended. We find this reasoning to be unpersuasive in this case. An application of the argument that priority rests with the most recently enacted or amended statute would, in this case, belittle the veiy serious inquiry into legislative intent that this task demands. As both statutes have been revised several times without reference to the other, reliance on the statutory construction rule that the most recent amendment controls would ultimately result in inconsistent determinations of relative priority over time.
Moreover, any inquiry into relative recency of amendments should include only pertinent or relevant amendments. In this case, both statutes have been revised several times and for reasons unrelated to the issues at hand. If our inquiry, however, is limited to relevant statutory changes, it would appear that the reimbursement act controls as the most recently amended with regard to the provisions at issue. While the act’s predecessor, the Prison Reimbursement Act, was originally enacted in 1935, ten years before the pension act, the Legislature significantly revised the reimbursement act in 1984 PA 282, and for the first time specifically included all pensions as “assets” subject to the act. The reimbursement act was more recently amended by 1996 PA 286, which revisited and reduced the list of exceptions from its otherwise broad definition of “assets.” The pension act, on the other hand, was initially enacted after the reimbursement act, but its most applicable revisions were made by 1985 PA 34-41, and 1991 PA 47. Neither of these revisions, however, specifically addressed the reimbursement act’s inclusion of all pensions in its defini tion of “assets” subject to the act. Accordingly, we find that the reimbursement act was the most recently revised regarding the specific provisions at issue. The pension act would then serve as the general rule of excusing pensions from “legal process,” and the reimbursement act would be an exception to that general rule. The Court of Appeals determination that the pension act controls because it is the most recently revised is flawed because it ignores the above analysis.
We also reject their cursory conclusion that the pension act controls because it is more specific. Such reasoning effectively nullifies the reimbursement language in the reimbursement act, which specifically includes all pensions, without exception, as assets. This Court has stated:
Statutes in pari materia are those which relate to the same person or thing, or the same class of persons or things, or which have a common purpose. It is the rule that in construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although enacted at different times, and containing no reference one to the other. [Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558; 132 NW2d 660 (1965) (citations omitted).]
We find that the pension act’s nonassignment provision and the State Correctional Facility Reimbursement Act are in pari materia because both enactments address pensions. However, this Court has refused to apply rules that the more specific statute controls where such “strict construction . . . would defeat the main purpose of other statutes relating to the same subject.” Id. at 560, citing Rathbun v Michigan, 284 Mich 521; 280 NW 35 (1938). In this case, we refuse to adopt the Court of Appeals construction of the statutory provisions at issue because it effectively nullifies the express language in the reimbursement act and, consequently, defeats the main purpose of that statute.
The reimbursement act specifically, and without exception as to source, includes pension payments in the definition of “assets,” and, therefore, subjects all pension payments to its reimbursement scheme. The Legislature did not add pension payments to the amended list of exceptions to the act’s otherwise sweeping reimbursement provisions. Moreover, the plain and broad language of the reimbursement provisions at issue indicates a legislative intent to shift the burden of incarceration expenses to prisoners and from the taxpayers whenever possible. This primary intent is effectively ignored, and certainly frustrated, by the Court of Appeals holding that the pension act’s general protection of pension payments from “legal process” has priority over the reimbursement act.
For these reasons, we find the reasoning employed by the Court of Appeals to be flawed. Moreover, we are unprepared, absent clear language evidencing such legislative intent, to allow Schuster to avoid his statutory obligations under the reimbursement act when all other non-pension act pension payments are subject to the reimbursement act. A contrary conclusion, without clear legislative intent, would nullify the plain language in the reimbursement act and be manifestly unfair to Michigan taxpayers and to the other prisoners required to reimburse the state for their incarceration expenses.
We note that this holding does not hinder the primary legislative purpose behind the pension provisions. The nonassignment provisions were designed to insulate retirement benefits from creditors. However, the state, when considering pension payments according to the reimbursement act, is not a “creditor,” nor is the relationship between a prisoner and the state a typical debtor-creditor relationship. State Treasurer v Sheko, 218 Mich App 185, 189; 553 NW2d 654 (1996), citing Auditor General v Hall, 300 Mich 215, 221; 1 NW2d 516 (1942), and Auditor General v Olezniczak, 302 Mich 336, 350; 4 NW2d 679 (1942). Rather, a prisoner is an obligor because of his statutory, not voluntary or personal, obligation to reimburse the state under the reimbursement act for his incarceration expenses. Because of the unique relationship between prisoner and state, as obligor and obligee, respectively, a reimbursement action is not clearly the type of “other legal process” from which the pension act shields its pension payments. Therefore, our determination regarding relative priority gives greater effect to the language employed in both statutory provisions at issue without rendering any relevant provision surplusage or nugatory. See Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980).
Accordingly, we reverse the decision of the Court of Appeals on the issue of relative priority between the statutes at issue. We hold that the State Correctional Facility Reimbursement Act’s provisions prevail because of their plain language, which squarely address the very question before this Court — the relationship between a prisoner’s statutory duty to reim burse the state for his incarceration expenses, and pension payments.
in
Accordingly, we reverse the Court of Appeals reversal of the circuit court and reinstate the final circuit court order in this case.
Mallett, C.J., and Brickley, Boyle, and Taylor, JJ., concurred with Weaver, J.
Given our conclusion that the reimbursement act prevails over the pension act, we do not find it necessary to address the second issue raised on appeal regarding whether the nonassignment provision protects pension funds even after such funds are paid to the pension fund recipient or beneficiary. Our decision not to address this second issue should not imply our approval of the Court of Appeals holding or analysis regarding protection of disbursements after receipt.
MCL 750.520b; MSA 28.788(2).
MCL 800.401a; MSA 28.1701(1).
MCL 800.403; MSA 28.1703.
MCL 800.404(5); MSA 28.1704(5) mandates that the court
shall take into consideration any legal obligation of the defendant to support a spouse, minor children, or other dependents and any moral obligation to support dependents to whom the defendant is providing or has in fact provided support.
In aptly fulfilling this statutory requirement, the circuit judge decided there was no reason to subject Schuster’s wife to “any greater hardship as a result of her husband’s actions than is necessary” and found “she should not be forced to lower her standard of living or be impoverished as a result.”
Pursuant to MCL 800.403; MSA 28.1703, the state may seek up to ninety percent of the prisoners’ "assets” in satisfaction of their incarceration costs.
MCL 800.401; MSA 28.1701. The act further directs:
At the time of the hearing on the complaint and order, if it appears that the prisoner has any assets which ought to be subjected to the claim of the state under this act, the court shall issue an order requiring any person, corporation, or other legal entity possessed or having custody of those assets to appropriate and apply those assets or a portion thereof toward reimbursing the state as provided for under this act. [MCL 800.404(3); MSA 28.1704(3).]
1945 PA 136.
1991 PA 47. MCL 38.1346(4), (6); MSA 15.893(156)(4), (6).
215 Mich App 347; 547 NW2d 332 (1996). | [
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YOUNG, J.
The issue presented in this case is the proper scope of the exemption for regulated conduct and transactions under the Michigan Consumer Protection Act (MCPA). The MCPA exempts any “transaction or conduct specifically authorized under laws adminis tered by a regulatory board or officer acting under statutory authority of this state or the United States.” In Smith v Globe Life Ins Co, this Court held that the relevant inquiry “is whether the general transaction is specifically authorized by law, regardless of whether the specific misconduct alleged is prohibited.” In Hartman & Eichhorn Bldg Co, Inc v Dailey, the Court of Appeals opined that under the Smith test, licensed residential home builders were exempt from the MCPA; however, the Court ruled against the residential home builders because it believed that it was bound by Forton v Laszar to hold that the residential home builders were subject to the MCPA. We hold that under MCL 445.904(1)(a), residential home builders are exempt from the MCPA because the general transaction of residential home building, including contracting to perform such transaction, is “specifically authorized” by the Michigan Occupational Code (MOC), MCL 339.101 et seq. Therefore, we overrule any holding to the contrary in Forton and Hartman.
FACTS AND PROCEDURAL HISTORY
In December 2000, plaintiffs, Arthur and Beverly Liss (Lisses) and defendant Lewiston-Richards, Inc. (Lewiston-Richards), entered into a contract for the sale and completion of construction of a residential home. Defendant Jason Lewiston (Lewiston), President of Lewiston-Richards, executed the contract on Lewiston-Richards’s behalf. The Lisses allege that Lewiston-Richards did not complete construction on time and that the construction that was completed was not done in a workman-like manner. In 2003, the Lisses filed this action alleging breach of contract, breach of warranty, and other causes of action. Pertinent to this appeal, the Lisses allege that defendants violated the MCPA. Through their counterclaim and answer, defendants asserted that the transaction at issue, residential home building, was exempt from the MCPA. The parties filed cross-motions for summary disposition. The trial court denied defendants’ motion for summary disposition of the MCPA claim. The court held that it was bound to follow Hartman and hold that defendants were subject to the MCPA. Defendants filed an application in the Court of Appeals for leave to appeal from the order denying their motion and an application in this Court for leave to appeal before a decision by the Court of Appeals. This Court granted defendants’ bypass application.
STANDARD OF REVIEW
This Court reviews questions of statutory interpretation de novo. When interpreting a statute, this Court attempts to give effect to the Legislature’s intent by looking at the statutory text, giving meaning to every word, phrase, and clause in the statute and considering both their plain meaning and their context. This Court also reviews a trial court’s decision granting or denying a motion for summary disposition de novo.
ANALYSIS
Under the MCPA, “[u]nfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce are unlawful... .” However, the Legislature included an exemption in MCPA § 4(1)(a) that, relevant to this case, exempts any “transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.” The party claiming the exemption bears the burden of proving its applicability.
This Court first construed the scope of this particular exemption in Attorney General v Diamond Mortgage Co. In Diamond Mortgage, the defendant was a licensed real estate broker who advertised and offered loans to homeowners. The Attorney General brought suit alleging violations of the MCPA. The defendant answered, contending that because it was a licensed real estate broker, its activities were exempt under § 4(1)(a) of the MCPA. This Court disagreed, holding that the defendant’s “real estate broker’s license does not exempt it from the Michigan Consumer Protection Act.” The broker’s license authorized the defendant “to engage in the activities of a real estate broker,” but it did not “specifically authorize the conduct that plaintiff alleges is violative of the Michigan Consumer Protection Act, nor transactions that result from that conduct.” Ultimately, this Court held that while, “no statute or regulatory agency specifically authorizes misrepresentations or false promises, the exemption will nevertheless apply where a party seeks to attach such labels to ‘[a] transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.’ ” Because “a real estate broker’s license is not specific authority for all the conduct and transactions of the [defendant’s mortgage writing] business,” the defendant’s conduct and transactions were not exempt.
This Court again considered the application of the MCPA exemption provision in Smith v Globe Life Ins Co. In Smith, the plaintiff sued the defendant insurance company for breach of contract and violation of the MCPA. With regard to the MCPA exemption, this Court ruled that Diamond Mortgage controlled the disposition of the case and held that “Diamond Mortgage instructs that the focus is on whether the transaction at issue, not the alleged misconduct, is ‘specifically authorized.’ ” Therefore, “the defendant in Diamond Mortgage was not exempt from the MCPA because the transaction at issue, mortgage writing, was not ‘specifically authorized’ under the defendant’s real estate broker’s license.” Analyzing the insurer’s activities in Smith, this Court concluded that “§ 4(1)(a) generally exempts the sale of credit life insurance from the provisions of the MCPA, because such ‘transaction or conduct’ is ‘specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.’ ” What emerges from Diamond Mortgage and Smith is that the relevant inquiry “is whether the general transaction is specifically authorized by law, regardless of whether the specific misconduct alleged is prohibited.”
The Court of Appeals has applied this test in other regulated industries. For example, in Kraft v Detroit Entertainment, LLC, the Court held that “the general conduct involved in th[at] case-the operation of slot machines-is regulated and was specifically authorized by the [Michigan Gaming Control Board].” Thus, the plaintiffs MCPA claim regarding slot machines failed because of the § 4(1) (a) exemption. Similarly, in Newton v Bank West the Court held that the defendant federal savings bank’s banking activities were exempt from the MCPA because those activities were authorized by the Michigan Savings Bank Act, as well as by numerous federal statutes and regulations.
In the area of residential home building, the Court of Appeals held in Forton v Laszar, that the definition of “trade or commerce” in the MCPA could be applied to residential home builders. However, as noted by then-Chief Justice CORRIGAN in a statement concurring with this Court’s order denying the builder’s application for leave to appeal, the builder failed to preserve the issue whether § 4(1)(a) exempts residential home building because that conduct or transaction is subject to licensure and regulation under the MOC. Therefore, Forton never squarely addressed the exemption. However, in Hartman & Eichhorn Bldg Co, Inc v Dailey, the Court mistakenly opined that the Forton panel held that the exemption did not apply to building residential homes. The Hartman panel disagreed with the “holding” of Forton and declared a conflict, but the full Court of Appeals declined to convene a conflict panel, and the Hartman panel denied Hartman’s motion for reconsideration.
The Hartman panel’s treatment of Forton was erroneous because Forton never addressed the exemption. As noted, Forton merely found that residential home building fell within the MCPA’s definition of “trade or commerce.” Because the builder did not timely raise the MCPA defense, the Forton panel did not have the opportunity to address the exemption. However, we agree with the Hartman panel’s independent application of the exemption to residential home building.
Applying the Smith test, the relevant inquiry “is whether the general transaction is specifically authorized by law, regardless of whether the specific misconduct alleged is prohibited.” This Court has not construed the meaning of “specifically authorized” under the MCPA. “Specific” means “having a special application, bearing, or reference; explicit or definite.” “Au thorize” means “to give authority or formal permission for; sanction.” Thus, the exception requires a general transaction that is “explicitly sanctioned.”
In this case, the general conduct at issue is residential home building. Residential home builders are licensed under the MOC and are regulated by the Residential Builders’ and Maintenance and Alteration Contractors’ Board, which oversees licensing and handles complaints filed against residential builders. Moreover, there is a set of administrative rules promulgated to regulate the licensing procedure. Furthermore, the general transaction at issue in this case, contracting to build a residential home, is “specifically authorized” by law. First, the MOC comprehensively defines a “residential builder” as
a person engaged in the construction of a residential structure or a combination residential and commercial structure who, for a fixed sum, price, fee, percentage, valuable consideration, or other compensation, other than wages for personal labor only, undertakes with another or offers to undertake or purports to have the capacity to undertake with another for the erection, construction, replacement, repair, alteration, or an addition to, subtraction from, improvement, wrecking of, or demolition of, a residential structure or combination residential and commercial structure; a person who manufactures, assembles, constructs, deals in, or distributes a residential or combi nation, residential and commercial structure which is prefabricated, preassembled, precut, packaged, or shell housing; or a person who erects a residential structure or combination residential and commercial structure except for the person’s own use and occupancy on the person’s property.
A residential home builder, by statutory definition, is one who engages in construction activities “for a fixed sum, price, fee, percentage, valuable consideration, or other compensation ....” Therefore, a residential home builder is “specifically authorized” to contract to build homes.
Additionally, there are only a limited number of instances where a non-licensed builder may “engage in the business of or act in the capacity of a residential builder.” The clear import of the statutory scheme is that there are only a few instances where one can engage in the business of a residential home builder without having a license. Therefore, with limited exceptions, contracting to build a residential home is a transaction “specifically authorized” under the MOC, subject to the administration of the Residential Builders’ and Maintenance and Alteration Contractors’ Board.
Thus, the MCPA exemption applies to residential home builders who engage in the type of activities that define a residential home builder, which activities are permitted by the MOC to be performed only by licensed residential home builders. This case is unlike Diamond Mortgage, where the defendants engaged in activity, mortgage writing, that their real estate broker license simply did not permit them to do. Forming an agreement to build a home is the essence of a residential home builder’s activity that is specifically authorized by law.
CONCLUSION
Applying the Smith test, defendants’ “general transaction,” building a residential home, is “specifically authorized” under the MOC and the relevant regulations. Therefore, that transaction is exempt from the MCPA. We reverse the Oakland Circuit Court order to the contrary, as well as overrule any contrary holding in Forton and Hartman, and remand for further proceedings consistent with this opinion.
Taylor, C.J., and Weaver, Corrigan, and Markman, JJ., concurred with YOUNG, J.
MCL 445.901 et seq.
MCL 445.904(1)(a).
460 Mich 446, 465; 597 NW2d 28 (1999).
266 Mich App 545; 701 NW2d 749 (2005).
239 Mich App 711; 609 NW2d 850 (2000).
The Lisses also filed a complaint with the Department of Labor and Economic Growth, Bureau of Commercial Services Enforcement Division. This entity within the Department of Labor and Economic Growth investigates and resolves consumer complaints against residential home builders.
474 Mich 1133 (2006).
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006).
Shinholster v Annapolis Hosp, 471 Mich 540, 548; 685 NW2d 275 (2004).
City of Taylor, supra at 115.
MCL 445.903(1).
MCL 445.904(1)(a).
MCL 445.904(4). Thus, § 4(1)(a) provides an affirmative defense, which is waived, unless the party raised it in the party’s first responsive pleading, as originally filed or as amended under MCR 2.118, or motion for summary disposition. MCR 2.111(F)(3); see Rasheed v Chrysler Corp, 445 Mich 109, 131-132; 517 NW2d 19 (1994). Defendants properly raised the exemption in their answer and counterclaim, as well as in their motion for summary disposition.
414 Mich 603; 327 NW2d 805 (1982).
Diamond Mortgage, supra at 6X7.
Id.
Id. Plaintiff and the dissents contend that an illegal act can never be “specifically authorized” and thus exempt. In focusing on the alleged illegality rather than whether the transaction is authorized, plaintiff and the dissents conspicuously overlook this critical explanation from Diamond Mortgage.
Id.
460 Mich 446; 597 NW2d 28 (1999).
Id. at 464 (emphasis added).
Id.
Smith, supra at 465.
Id. Justice Kelly argues that there is a distinction between the tests articulated in Diamond Mortgage and Smith. The only difference in the cases is the result. In Diamond Mortgage, the defendants were specifically authorized to engage in real estate transactions, but they had no statutory authorization to engage in mortgage writing. Because the plaintiffs claims concerned mortgage writing, an unauthorized activity, the MCPA exception did not apply. In Smith, the defendant was licensed to sell insurance, and the case concerned insurance. Thus, the exception applied.
261 Mich App 534, 541; 683 NW2d 200 (2004).
262 Mich App 434; 686 NW2d 491 (2004).
MCL 487.3101 et seq.
239 Mich App 711, 714-715; 609 NW2d 850 (2000).
The MCPA defines “trade or commerce” as
the conduct of a business providing goods, property, or service primarily for personal, family, or household purposes and includes the advertising, solicitation, offering for sale or rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed, or any other article, or a business opportunity. “Trade or commerce” does not include the purchase or sale of a franchise, but does include pyramid and chain promotions, as “franchise”, “pyramid”, and “chain promotions” are defined in the franchise investment law, 1974 PA 269, MCL 445.1501 to 445.1546. [MCL 445.902(g).]
463 Mich 969 (CORRIGAN, C.J., concurring), citing MCL 339.101 et seq.
266 Mich App 545; 701 NW2d 749 (2005).
Between Forton and Hartman, in a number of unpublished opinions, the Court of Appeals held that under Smith, residential home building is exempt from the MCPA because of the fact that the conduct was regulated under the MOC. See Winans v Paul and Marlene, Inc, unpub lished opinion per curiam of the Court of Appeals, issued July 8, 2002 (Docket No. 230944), and Shinney v Cambridge Homes, Inc, unpublished opinion per curiam of the Court of Appeals, issued February 22, 2005 (Docket No. 250123). However, these cases were not binding on the Hartman panel. MCR 7.215(C).
266 Mich App 801 (2005).
Smith, supra at 465.
Random House Webster’s College Dictionary (1997). Justice Kelly defines “authorize” as “ ‘to give authority or official power to-, empower.’ ” Post at 228, quoting Random House Webster’s College Dictionary (2001) (emphasis added). “Empower” is defined as “1. to give official or legal power or authority to. 2. to endow with an ability; enable.” Random House Webster’s College Dictionary (1997). Given the definition of “empower” and the use of the preposition “to,” the clear import of this definition is that it applies to the “authorization” of the actor. The definition we choose focuses on the “authorization” of the action, which is also the focus of MCPA § 4(1)(a), which applies to “transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.” Contrary to Justice Kelly’s assertion, we do not focus on the actor. Defendants’ status as residential home builders is relevant only to the extent that such status specifically authorizes them to engage in a particular transaction, i.e., residential home building.
Random House Webster’s College Dictionary (1997).
MCL 339.101 et seq.
1999 AC R 338.1511 through R 338.1555.
38 MCL 339.2401(a) (emphasis added).
Justice Kelly argues that “[n]othing in [the MOC] explicitly gives residential home builders the power to engage in residential home building.” Post at 229. However, the statute clearly requires most people to obtain a license before acting as a residential home builder. A “license” is “formal permission from a governmental or other constituted authority to do something, as to carry on some business or profession.” Random House Webster’s College Dictionary (1997). Through the licensure requirement, the statute explicitly sanctions, or “specifically authorizes,” qualified individuals to engage in residential home building.
Justice Kelly also states that “[a] transaction or conduct that is actually prohibited by law cannot be deemed to be specifically authorized.” Post at 222 (emphasis in original). In this case, however, the general transaction of residential home building has been specifically authorized. The prohibitions cited by the dissent address specific misconduct in the course of fulfilling that transaction: MCL 339.2411(2)(d) prohibits “[a] willful departure from or disregard of plans,” and MCL 339.2411(2)(m) prohibits “[p]oor workmanship.” Contrary to the dissent, these provisions do not prohibit the transaction of residential home building. To the contrary, they assume the propriety of such transaction. Hence, the dissent errs in concluding that the transaction in this case has been “prohibited by law.” Post at 222 (emphasis omitted).
MCL 339.2403, listing nine exceptions to the licensure requirement.
The dissents’ focus on the plaintiffs’ characterization of the conduct is misplaced. While plaintiffs allege that defendants failed to timely complete construction and made multiple misrepresentations, the fact remains that all of the alleged misconduct occurred during the course of the authorized conduct of residential home building. | [
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CAVANAGH, J.
We granted leave to appeal to determine whether the amendatory provision in the compacts at issue and the exercise of that provision by the Governor violate the Separation of Powers Clause of the Michigan Constitution. 474 Mich 1097 (2006). We hold that the amendatory provision and the exercise of that provision do not violate the Separation of Powers Clause because the amendatory provision was properly approved by legislative resolution and the Governor’s exercise of the amendatory provision was within the limits of the constitution. Further, we hold that the issue whether the compacts violate the Appropriations Clause of the Michigan Constitution is not properly before this Court because the issue is beyond the parameters of this Court’s prior order remanding this matter to the Court of Appeals. Thus, we reverse in part the judgment of the Court of Appeals and hold that the amendatory provision and the current exercise of that provision do not violate the Separation of Powers Clause. We further affirm in part the judgment of the Court of Appeals that struck the portion of plaintiffs brief that sought to address the Appropriations Clause issue. Accordingly, we remand this case to the circuit court for the entry of a judgment of summary disposition in favor of defendants.
I. STATEMENT OF FACTS AND PROCEEDINGS
In January 1997, Governor John Engler and four Indian tribes signed tribal gaming compacts. The four tribes were the Little Traverse Bay Bands of Odawa Indians, the Pokagon Band of Potawatomi Indians, the Little River Band of Ottawa Indians, and the Nottawaseppi Huron Potawatomi. In Taxpayers of Michigan Against Casinos v Michigan, 471 Mich 306; 685 NW2d 221 (2004) (TOMAC I), this Court considered three aspects of the alleged unconstitutionality of these tribal gaming compacts between the state and the tribes. This Court affirmed the Court of Appeals judgment, 254 Mich App 23; 657 NW2d 503 (2002), that held that the compacts were properly approved by the Legislature through a resolution, rather than a bill; that this did not violate art 4, § 22 of the Michigan Constitution; and that the resolution was not a “local act” in violation of art 4, § 29 of the Michigan Constitution. However, this Court also held that the question whether the amendatory provision in the compacts was constitutional under the Separation of Powers Clause, Const 1963, art 3, § 2, was not ripe for review because the Court of Appeals had not considered the issue. Governor Jennifer Granholm’s exercise of the amendatory authority had not occurred until after the Court of Appeals decision. Thus, this Court remanded the matter to the Court of Appeals to determine whether the amendatory provision violates the separation of powers doctrine.
On remand, the Court of Appeals held that the compacts’ amendatory provision, which allows the Governor to amend the compacts without legislative approval, violates the Separation of Powers Clause. Taxpayers of Michigan Against Casinos v Michigan (On Remand), 268 Mich App 226, 228; 708 NW2d 115 (2005). Judge BORRELLO dissented and stated that the Separation of Powers Clause was not violated because the Legislature’s approval of the compacts included approval of the amendatory provision.
II. STANDARD OF REVIEW
This Court reviews de novo a decision regarding a motion for summary disposition. Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000). This Court also reviews constitutional issues de novo. Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003). Decisions involving the meaning and scope of pleadings are reviewed for an abuse of discretion. Dacon v Transue, 441 Mich 315, 328; 490 NW2d 369 (1992).
III. ANALYSIS
Under the Indian Gaming Regulatory Act (IGRA), 25 USC 2701 et seq., an Indian tribe may conduct gaming within the borders of a state if the activity conforms to a compact between the state and the tribe. The compacts at issue were signed by Governor Engler, and the Legislature approved the compacts by resolution. In 2003, Governor Granholm consented to an amendment of the compact with the Little Traverse Bay Bands of Odawa Indians.
A. SEPAEATION OF POWERS CLAUSE
Michigan’s Separation of Powers Clause states: “The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Const 1963, art 3, § 2. “This Court has established that the separation of powers doctrine does not require so strict a separation as to provide no overlap of responsibilities and powers.” Judicial Attorneys Ass’n v Michigan, 459 Mich 291, 296; 586 NW2d 894 (1998). An overlap or sharing of power may be permissible if “the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other . . ..” Id. at 297. The Separation of Powers Clause “has not been interpreted to mean that the branches must be kept wholly separate.” Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 752; 330 NW2d 346 (1982).
The amendatory provision at issue provides:
Section 16. Amendment
This Compact may be amended by mutual agreement between the Tribe and the State as follows:
(A) The Tribe or the State may propose amendments to the Compact by providing the other party with written notice of the proposed amendment as follows:
(i) The Tribe shall propose amendments pursuant to the notice provisions of this Compact by submitting the proposed amendments to the Governor who shall act for the State.
(ii) The State, acting through the Governor, shall propose amendments by submitting the proposed amendments to the Tribe pursuant to the notice provisions of this Compact.
(iii) Neither the tribe nor the State may amend the definition of “eligible Indian lands” to include counties other than those set forth in Section 2(B)(1) of this Compact....
(B) The party receiving the proposed amendment shall advise the requesting party within thirty (30) days as follows:
(i) That the receiving party agrees to the proposed amendment; or
(ii) That the receiving party rejects the proposed amendment as submitted and agrees to meet concerning the subject of the proposed amendment.
(C) Any amendment agreed to between the parties shall be submitted to the Secretary of the Interior for approval pursuant to the provisions of the IGRA.
(D) Upon the effective date of the amendment, a certified copy shall be filed by the Governor with the Michigan Secretary of State and a copy shall be transmitted to each house of the Michigan Legislature and the Michigan Attorney General. [Emphasis added.]
Governor Granholm and the Little Traverse Bay Band of Odawa Indians agreed to amend the compact in a number of ways. Among other items, the amendment permitted a second casino to be constructed on eligible Indian lands of the Little Traverse Bay Bands of Odawa Indians, contingent on the approval of the local unit of government; changed the age of legal gambling from 18 to 21 at this casino; mandated that tribal payments must now be sent to the state, as directed by the Governor or a designee of the Governor, as opposed to sending the payments to the Michigan Strategic Fund or its successor; and mandated that the compact was binding for 25 years from the effective date of the amendments, instead of being binding for 20 years from the effective date of the compact.
The amendatory provision allows the Governor to act for the state in reviewing and approving amendments submitted by the tribes and in proposing amendments to the tribes. This amendatory provision expresses the bilateral agreement between the parties that the Governor will represent the state in matters involving amendments. The Legislature reviewed the language of this amendatory provision and approved the amendment procedure, which gives the Governor broad discretion — within the limits of the constitution — to amend the compacts.
The compacts were properly approved by legislative resolution. As stated in TOMAC I, “our Constitution does not require that our Legislature express its approval of these compacts through bill rather than resolution.” TOMAC I, supra at 313. The compacts— when approved by the Legislature — included the amendatory provision. As this Court held in TOMAC I, supra at 313, a resolution was sufficient for legislative approval of the compacts. Similarly, the resolution also amounted to sufficient approval for the amendatory provision within the compacts.
The Legislature’s approval of the amendatory provision gave consent to amendments that conform to the approved procedure. The Legislature chose to approve an amendment procedure that gives the Governor broad power to amend the compacts, and the Legislature was well within its authority to make such a decision. See id. at 329. This Court has long recognized the ability of the Legislature to confer authority on the Governor. See, e.g., People ex rel Sutherland v Governor, 29 Mich 320, 329 (1874). This Court has further recognized that discretionary decisions made by the Governor are not within this Court’s purview to modify. See, e.g., People ex Rel Ayres v Bd of State Auditors, 42 Mich 422, 426; 4 NW 274 (1880). *3
As this Court stated in TOMAC I, supra at 328, “We have held that our Legislature has the general power to contract unless there is a constitutional limitation.” There is no limitation in Michigan’s Constitution on the Legislature’s power to bind the state to a compact with a tribe. “State legislatures have no regulatory role under IGRA aside from that negotiated between the tribes and the states.” Id. at 320. The Legislature’s approval of the compacts only follows the assent of the parties to the compacts. This does not establish, “in the realm of Indian casinos, ‘government by contract’ ” that avoids the restrictions and provisions of the constitution, as argued by Justice MARKMAN. Post at 134. The amendments — -just as the compacts themselves — “only set forth the parameters within which the tribes, as sovereign nations, have agreed to operate their gaming facilities.” TOMAC I, supra at 324. Our constitution does not prohibit the Legislature from approving compacts by concurrent resolution. Id. at 327-328. Thus, it is entirely permissible for the Legislature to provide, by resolution, that the Governor may negotiate subsequent amendments to the compacts. Because the agreed-to amendments are permissible, plaintiff has failed to establish that the amendatory provision and the exercise of that provision are unconstitutional. The amendatory provision survives both a facial and an as-applied challenge under the Separation of Powers Clause because all the amendments negotiated by the Governor are permissible. See Judicial Attorneys Ass’n, supra at 303; Woll v Attorney General, 409 Mich 500, 535 n 50; 297 NW2d 578 (1980). Specifically, the amendments “do not impose new obligations on the citizens of the state subject to the Legislature’s power; they simply reflect the contractual terms agreed to by two sovereign entities.” TOMAC I, supra at 327; see also TOMAC I, supra at 344 (KELLY, J., concurring) (The compacts “place no restrictions or duties on the people of the state of Michigan. They create no duty to enforce state laws on tribal lands.”).
Finally, today’s decision is not in conflict with this Court’s past decision in Roxborough v Unemployment Compensation Comm, 309 Mich 505; 15 NW2d 724 (1944). In Roxborough, supra at 510, this Court stated that the Governor could “exercise only such authority as was delegated to him by legislative enactment.” This Court held that the Governor could not increase compensation for an employee of the appeal board of the Unemployment Compensation Commission because the Legislature had passed legislation to limit the compensation of this employee to the maximum amount permitted by the Social Security Board. The Governor could not ignore this limitation. Roxborough is inapplicable because that case dealt with a unilateral act of the Legislature. The compacts, however, are bilateral agreements. Further, the Legislature’s approval by resolution of the compacts — which included the amendatory provision — provides the Governor with authority to negotiate and agree to amendments on behalf of the state. Thus, the amendatory provision — on its face and as it was exercised by the Governor — does not violate the Separation of Powers Clause of the Michigan Constitution.
B. APPROPRIATIONS CLAUSE
Michigan’s Appropriations Clause states, “No money shall be paid out of the state treasury except in pursuance of appropriations made by law.” Const 1963, art 9, § 17. On remand in the Court of Appeals, plaintiff argued that the compacts violate Michigan’s Appropriations Clause because this Court determined that the compacts are contracts. Plaintiff argued that consideration must have been exchanged by the parties to each compact. Therefore, the tribal payments under the compacts are state funds that the Legislature must appropriate by legislation. Plaintiff raised this issue for the first time in the Court of Appeals when this case was remanded, and plaintiff argued that the issue was within the scope of this Court’s remand order and could not have been raised earlier because it was based on this Court’s ruling in TOMAC I. Intervening defendant Gaming Entertainment, LLC, moved to strike the portion of plaintiffs brief dealing with the Appropriations Clause because the issue went beyond this Court’s remand order. The Court of Appeals granted the motion to strike and, thus, did not address this issue.
We agree with the Court of Appeals that the appropriations issue was not properly before it. This Court remanded this matter to the Court of Appeals to address a specific issue — “whether the provision in the compacts purporting to empower the Governor to amend the compacts without legislative approval violates the separation of powers doctrine found in Const 1963, art 3, § 2.” TOMAC I, supra at 333. The appro priations issue is outside the scope of this Court’s remand order; thus, the Court of Appeals correctly held that the issue was not properly before it. See, e.g., Napier v Jacobs, 429 Mich 222, 228; 414 NW2d 862 (1987); People v Jones, 394 Mich 434, 435-436; 231 NW2d 649 (1975). Plaintiff cannot raise any issue it chooses merely because this Court remanded this case to the Court of Appeals to address another issue. Simply, if this Court had not remanded the matter to the Court of Appeals to address the separation of powers issue, plaintiff would not be able to raise a new issue directly in the Court of Appeals. Similarly, plaintiff cannot do so now.
IV CONCLUSION
We hold that the amendatory provision and the Governor’s exercise of that provision do not violate the Separation of Powers Clause because the amendatory provision was properly approved by legislative resolution and the Governor’s use of the amendatory provision was exercised within the limits of the constitution. Thus, we reverse in part the judgment of the Court of Appeals and hold that the amendatory provision and the current exercise of that provision do not violate the Separation of Powers Clause. We further hold that the issue whether the tribal payments under the compacts violate the Appropriations Clause of the Michigan Constitution is not properly before this Court because it is beyond the parameters of this Court’s prior remand order. Thus, we affirm in part the judgment of the Court of Appeals that struck the portion of plaintiffs brief that sought to address the Appropriations Clause issue. Accordingly, we remand this case to the circuit court for entry of a judgment of summary disposition in favor of defendants.
Taylor, C.J., and Kelly, Corrigan, and Young, JJ., concurred with CAVANAGH, J.
We note that while Laura Baird is a named plaintiff in this case, she has been inactive during the appellate process. In fact, Baird filed a motion with the Court of Appeals asking that she be dismissed as a party. While this motion was denied, her inactivity has rendered the issue of standing as it relates to legislators moot. Accordingly, the term “plaintiff” when used in this opinion only refers to plaintiff Taxpayers of Michigan Against Casinos.
While Justice Markman again revisits his arguments that the compacts were legislation under Blank v Dep’t of Corrections, 462 Mich 103; 611 NW2d 530 (2000), this Court already explained its position and addressed the flaws in Justice Markman’s rationale in TOMAC I, supra at 318-333; thus, there is no reason to reiterate this reasoning. Further, Justice Markman’s discussion that MCL 432.203(5) suggests that casino gaming must be authorized by legislation in the absence of a compact is irrelevant here because there is a compact in this case in accord with IGRA and the compact properly allows for amendments.
Contrary to Justice Markman’s claims, we note that the Governor’s authority to negotiate amendments is not without limits. Some limits are in the compacts themselves, and the Governor cannot negotiate amendments that extend beyond these limits. And, of course, the Governor cannot agree to an amendment that would violate the constitution or invade the Legislature’s lawmaking function.
Justice Markman is simply incorrect when he states that the fact that the amendments reflect the contractual terms agreed to by two sovereign nations is “irrelevant to the necessary constitutional analysis.” Post at 145. As thoroughly explained in TOMAC I, supra at 324, “the hallmark of legislation is unilateral imposition of legislative will. Such a unilateral imposition of legislative will is completely absent in the Legislature’s approval of tribal-state gaming compacts under IGRA.” Thus, the Legislature’s role in approving the compacts and amendatory provision “requires mutual assent by the parties — a characteristic that is not only the hallmark of a contractual agreement but is also absolutely foreign to the concept of legislating.” Id. Justice Markman’s dissent is largely premised on the notion that the compacts and the amendments constitute legislation; thus, it is perplexing why a statement showing the contrary is irrelevant to the analysis. | [
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Per Curiam.
This action is before us on plaintiffs original complaint for habeas corpus. Plaintiff argues that his detention resulting from a parole violation is illegal because the Parole Board failed to comply with MCL 791.240a(1); MSA 28.2310(1)(1). We disagree and, therefore, deny plaintiff’s request for a writ of habeas coipus.
In 1992, plaintiff was convicted as a third-offense habitual offender of breaking and entering, fraudulent use of a transaction device over $500, unlawfully driving away an automobile (UDAA), and receiving and concealing stolen property. He was sentenced to prison terms of one to thirty years for the breaking and entering conviction, one to ten years for the fraud conviction, one to ten years for the UDAA conviction, and one to five years for the receiving and concealing conviction. Plaintiff was paroled in 1995 with special conditions, one of which was to refrain from alcohol consumption. On March 31, 1996, plaintiff violated the terms of his parole by consuming alcohol and driving a motor vehicle while under the influence of intoxicating liquor. Plaintiff was served with written notice of parole violation charges on April 2, 1996. On April 18, 1996, defendant Parole Board issued a parole violation warrant for plaintiffs arrest. Plaintiff was taken into custody and transported to the Macomb County Jail on April 22, 1996. On May 21, 1996, defendant held a parole violation hearing and recommended that plaintiff be returned to correctional facilities for a period of eighteen months.
MCL 791.240a(1); MSA 28.2310(1)(1) provides in pertinent part:
Within 45 days after a paroled prisoner has been returned or is available for return to a state correctional facility under accusation of a parole violation . . . the prisoner is entitled to a fact-finding hearing on the charges before . . . the parole board.
Plaintiff contends that he was “available for return” and “under accusation” when he received notice of parole violation charges on April 2, 1996, and, therefore, defendant violated this statute by failing to provide him a hearing within forty-five days of that date. We disagree.
Mere notice of parole violation charges does not suffice for the purposes of placing a parolee “under accusation.” Hinton v Parole Bd, 148 Mich App 235, 242; 383 NW2d 626 (1986). The Parole Board must first consider whether to recommend revocation of parole and issue a parole violation warrant to place a parolee “under accusation” of parole violations. Feazel v Dep’t of Corrections, 31 Mich App 425, 428; 188 NW2d 59 (1971). Because the parole revocation hearing occurred within forty-five days of the parole violation warrant and arrest, plaintiff has failed to establish a basis for the writ of habeas corpus.
Complaint for writ of habeas corpus dismissed.
The Department of Corrections did not issue a parole detainer or “hold” for defendant pursuant to MCL 791.239; MSA 28.2309. Nonetheless, we note that a parolee is entitled to a preliminary hearing and notice of the charges, as well as other procedural safeguards. MCL 791.239a; MSA 28.2309(1). | [
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Per Curiam.
This case arises out of the death of Michigan State Police trooper Manuel Henry Fields. Plaintiff, the personal representative of Trooper Fields’ estate, appeals as of right from the trial court’s grant of summary disposition in favor of defendant. MCR 2.116(C)(8). We affirm. This case is being decided without oral argument pursuant to MCR 7.214(E).
Defendant struck and killed Trooper Fields as he was standing on the shoulder of 1-94, near the driver’s door of a vehicle that he had stopped for a traffic violation. Defendant subsequently pleaded no contest to a charge of negligent homicide, MCL 750.324; MSA 28.556. In this wrongful death action, plaintiff alleged that defendant was negligent in the operation of her motor vehicle and that this negligence caused the decedent’s death. Defendant moved for summary disposition, asserting that plaintiff’s action was barred by the fireman’s rule. The circuit court agreed and dismissed the action.
The sole issue on appeal is whether the fireman’s rule precludes plaintiff’s cause of action against defendant for her negligence in causing the death of lYooper Fields. The fireman’s rule bars public safety officials such as fire fighters and police officers from suing private parties for injuries sustained in the course of the public safety officer’s employment. Miller v Inglis, 223 Mich App 159, 162-163; 567 NW2d 253 (1997). The fundamental rationale behind the rule is that fire fighters and police officers are hired, specially trained, and paid to confront dangerous situations, and they enter their professions with the certtiin knowledge that their personal safety is at risk while on duty. Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347, 371-372; 415 NW2d 178 (1987).
The Kreski Court recognized that the fireman’s rule is not a bright-line rule, but instead is subject to “fine tuning ... to best balance the underlying rationales with the interest of allowing recovery when those rationales are not implicated.” 429 Mich 371. Gibbons v Caraway, 455 Mich 314; 565 NW2d 663 (1997), represents the Court’s most recent “fine tuning” of the rule. In Gibbons, the plaintiff police officer was directing traffic at the scene of an automobile accident when he was struck by a vehicle that swerved for an undetermined reason. The officer’s suit against the driver, Caraway, alleged that Caraway operated the vehicle in a wanton, reckless, careless, negligent, or grossly negligent manner. In four separate opinions, a majority of the Court concluded that the fireman’s rule should not be applied. In an opinion joined by Chief Justice Mallett and Justice Kelly, Justice Cavanagh concluded that when a police officer responds to an accident scene and is subsequently injured by a third party’s “wanton, reckless, careless, negligent, or grossly negligent” conduct, the fireman’s rule may not serve as a bar to a tort action by the officer against the third party. 455 Mich 326. Because there was a factual dispute concerning the reason why Caraway swerved, Justice Cavanagh declined to apply the fireman’s rule. Justice Boyle, joined by Justice Brickley, concurred, but stated that “the fireman’s rule does not bar a claim for damages for injuries caused by the subsequent wrongdoing of a third party uninvolved with the original act, where the wrongdoing resulted from wanton, reckless, or grossly negligent behavior.” 455 Mich 329-330. Justice Boyle’s opinion specifically stated, that “[i]n regard to carelessness or ordinary negligence, however, the fireman’s rule bars the claim.” Id., p 330. Justice Weaver concurred in the result, but for the reason that application of the fireman’s rule should be limited to premises liability cases. 455 Mich 334. Finally, Justice Riley stated that the fireman’s rule should apply to bar the officer’s tort action because his injury stemmed directly from his police function. 455 Mich 339.
Reading Justice Cavanagh’s plurality opinion together with Justice Boyle’s concurrence, it is apparent that a majority of our Supreme Court agrees that the fireman’s rule may not apply, and a tort action may be maintained, when a police officer has responded to a call or an offense and is injured as a result of the subsequent wanton, reckless, or grossly negligent conduct of an independent third party unconnected to the situation that brought the officer to the scene. A majority does not agree that where, as in this case, the plaintiff police officer’s representative alleged only carelessness or ordinary negligence on the part of a third party unconnected to the event to which the officer was responding, the bar of the fireman’s rule can be avoided.
In this case, plaintiff has never alleged that Trooper Fields’ death was the result of defendant’s wanton, reckless, or grossly negligent operation of her vehicle. Further, the crime of which defendant was convicted in, connection with Trooper Fields’ death — negligent homicide — involves only ordinary negligence. People v Clark, 171 Mich App 656, 659; 431 NW2d 88 (1988). Under these circumstances, the limited exception to the fireman’s rule recognized by a majority of the justices in Gibbons, supra, does not apply. The trial court therefore properly concluded that plaintiff’s complaint did not state a claim that avoids the fireman’s rule.
Affirmed. | [
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White, P.J.
Defendant was convicted by a jury of one count of possession with intent to deliver methamphetamine, MCL 333.7401(2)(b); MSA 14.15(7401)(2)(b), one count of possession with intent to deliver marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c), and one count of possession of methamphetamine, MCL 333.7403(2)(b); MSA 14.15(7403)(2)(b). A separate jury found that defendant was a third-offense habitual offender, MCL 769.11; MSA 28.1083. He was sentenced to enhanced prison terms of twelve to twenty-eight years for possession with intent to deliver methamphetamine, five to sixteen years for possession with intent to deliver marijuana, and two to eight years for possession of methamphetamine. Defendant appeals as of right. We affirm his convictions, but vacate his sentences and remand for resentencing.
i
Defendant first argues that the prosecutor presented insufficient evidence to support the convictions of possession with intent to deliver marijuana and possession of methamphetamine. We disagree.
In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Here, defendant challenges the sufficiency of the evidence to establish his knowing possession of the controlled substances.
A person need not have physical possession of a controlled substance to be found guilty of possessing it. Wolfe, supra at 519-520. Possession may be either actual or constructive, and may be joint as well as exclusive. Id. The essential question is whether the defendant had dominion or control over the controlled substance. People v Konrad, 449 Mich 263, 271; 536 NW2d 517 (1995). A person’s presence at the place where the drugs are found is not sufficient, by itself, to prove constructive possession; some additional link between the defendant and the contraband must be shown. Wolfe, supra at 520; People v Vaughn, 200 Mich App 32, 36; 504 NW2d 2 (1993). However, circumstantial evidence and reasonable inferences arising from the evidence are sufficient to establish possession. People v Sammons, 191 Mich App 351, 371; 478 NW2d 901 (1991), cert den 505 US 1213; 112 S Ct 3015; 120 L Ed 2d 888 (1992).
Here, the prosecutor presented sufficient circumstantial evidence linking defendant to the marijuana and methamphetamine found in a trailer. There was evidence that defendant resided in the trailer and used the master bedroom. Defendant was present at the trailer when the police executed the search war rant at 3:15 A.M. Defendant told police that he and his girlfriend used the back bedroom, but claimed that his girlfriend was not involved in trafficking drugs. A letter was found in the trailer addressed to defendant at that address. There were two bathrooms in the trader, but the methamphetamine and marijuana were found in the bathroom connected to the master bedroom. The methamphetamine was found in the toilet, and the marijuana was found in a cabinet underneath the sink.
There were items in the master bedroom from which the jury could reasonably infer that the bedroom’s occupant was the owner of the controlled substances. Eighty-five hundred dollars in cash was found underneath the bed, an electronic scale of the type commonly used to weigh controlled substances for resale was found on the dresser, and a notebook containing names followed by dollar amounts was found in the top dresser drawer. Additionally, Michael Waters testified that he sold marijuana and methamphetamine and that defendant was his source. Waters testified that the purchases usually took place in the back bedroom of the trailer, where defendant lived with his girlfriend and children, and that he purchased methamphetamine from defendant the day before defendant’s trailer was raided by the police.
A checkbook at the trailer led the police to a self-storage facility. The owner of the facility, Kirk Pasche, produced a rental agreement showing that a storage unit was rented by defendant. Inside the storage unit, police discovered a file cabinet that con tained five pounds of methamphetamine, as well as several glass vials commonly used to package the substance, and several small empty bags made of clear plastic. The cardboard box containing the methamphetamine had defendant’s fingerprint on it. According to Officers Matyas and Edwards, defendant admitted that the methamphetamine at the storage unit was under his control, although he claimed that it belonged to Sonny McWilliams. The officers testified that defendant admitted that he and McWilliams were in a drug-trafficking organization in which McWilliams purchased large quantities of methamphetamine, which defendant was responsible for distributing.
Defendant claims that there was insufficient evidence to establish that he possessed the controlled substances found in the trailer because they could have belonged to any of the three other adults present at the time of the search. However, the prosecution need not negate every reasonable theory of innocence, but must only prove its own theory beyond a reasonable doubt in the face of whatever contradictory evidence is presented. People v Carson, 189 Mich App 268, 269; 471 NW2d 655 (1991). Viewed in a light most favorable to the prosecution, the evidence discussed above was sufficient to support a finding beyond a reasonable doubt that defendant constructively possessed the drugs found in the trailer bathroom.
There was also sufficient evidence from which the jurors could conclude that defendant intended to deliver the marijuana. Actual delivery is not required to prove intent to deliver. Wolfe, supra at 524. An actor’s intent may be inferred from all of the facts and circumstances, People v Safiedine, 163 Mich App 25, 29; 414 NW2d 143 (1987), and because of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient. People v Bowers, 136 Mich App 284, 297; 356 NW2d 618 (1984). Intent to deliver can be inferred from the quantity of the controlled substance in the defendant’s possession and from the way in which the controlled substance is packaged. Wolfe, supra at 524. Here, eight small clear plastic bags of marijuana were found together in a larger bag. An electronic scale, a large sum of cash, and tabulations with names and dollar amounts were also found in the master bedroom area. In addition, Waters testified that he had purchased marijuana from defendant several times in the past. Viewing the evidence in a light most favorable to the prosecution, there was sufficient evidence from which the jurors could conclude that the marijuana was not solely for defendant’s personal use and that he intended to deliver it to others.
n
Defendant next argues that the trial court erred in refusing the jurors’ request for a transcript of the testimony of the storage facility operator. We find no error requiring reversal.
During their deliberations, the jurors sent a note to the trial court asking, among other things, for a transcript of Pasche’s testimony. The matter was resolved as follows: , ;
The Court: Mr. Fetterley’s now here with Mr. Barnett [defense counsel]. I received a note from the jury ....
The Court: “Transcript of testimony by Pasche,” which we obviously don’t have. I’m just gonna tell the jury that they’ll have to remember the testimony of Mr. Pasche as best they can. Any objection to that?
Mr. McNeill [prosecutor]: No, your Honor.
The Court: Mr. Barnett?
Mr. Barnett: No, your Honor.
The Court: Morning, ladies and gentleman. Please be seated.
We have all 12 of our jurors here this morning. We’ve received a note from you, and I wanna go through those items with you.
The first item was the rental agreement contract. We’re getting that around for you. The second item was Miss Moore’s checkbook. And we’re going to give that to you. Third item you’ve asked for is a transcript of the testimony of Mr. Pasche. We do not have that available and we can’t— cannot make it available to you. We just don’t have the technology in this courtroom to produce transcripts on a daily basis. So, you’re going to have to remember the testimony of Mr. Pasche as best you can. That’s the best I can do for you at this point.
Defendant argues that the trial court committed error warranting reversal by violating MCR 6.414(H), which states:
If, after beginning deliberation, the jury requests a review of certain testimony or evidence, the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request. The court may order the jury to deliberate further without the requested review, so long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.
Defendant asserts that the jury’s request was reasonable and could not properly be refused by the trial court despite defense counsel’s failure to object. However, defense counsel expressly acquiesced to the court’s handling of the jury’s request. A defendant may not waive objection to an issue before the trial court and then raise it as an error before this Court. People v Simon, 174 Mich App 649, 657; 436 NW2d 695 (1989). To hold otherwise would allow defendant to harbor error as an appellate parachute. People v Shuler, 188 Mich App 548, 552; 470 NW2d 492 (1991). Further, in People v Wytcherly (On Rehearing), 176 Mich App 714, 716; 440 NW2d 107 (1989), this Court held that the trial court’s denial of the jury’s request to review transcripts was not an abuse of discretion where both counsel agreed to that denial. We find no error.
m
Defendant next asserts that the trial court erred in refusing to suppress the fruits of the search of the trailer on the ground that the police failed to knock- and-announce their presence before forcing entry into the trailer.
Defendant argues that the police conduct violated the knock-and-announce statute, MCL 780.656; MSA 28.1259(6), and constituted an unreasonable search and seizure under the United States and Michigan Constitutions, US Const, Am IV; Const 1963, art 1, §11. The United States Supreme Court has held that the knock-and-announce requirement forms a part of the reasonableness inquiry under the Fourth Amendment. Wilson v Arkansas, 514 US 927; 115 S Ct 1914; 131 L Ed 2d 976 (1995). In addition, the Michigan knock-and-announce statute provides:
The officer to whom a warrant is directed or any person assisting him, may break any outer or inner door or window of a house or building, or anything therein, in order to execute the warrant, if, after notice of his authority and purpose, he is refused admittance, or when necessary to liberate himself or any person assisting him in the execution of the warrant. [MCL 780.656; MSA 28.1259(6).]
The knock-and-announce statute requires that police executing a search warrant give notice of their authority and purpose and be refused entry before forcing their way in. People v Williams (After Remand), 198 Mich App 537, 545; 499 NW2d 404 (1993). Police must allow a reasonable time for the occupants to answer the door following the announcement. Id.
Before trial, defendant, on the basis of the failure to knock and announce, filed a motion to suppress the evidence seized from the trailer. The trial court conducted a hearing and determined that the police adequately complied with the requirement.
Officer Matyas testified that the trailer sat one to two hundred feet from the road and was accessible by a dirt driveway that curved around in front of the trailer. Police officers arrived in three or four marked vehicles and other unmarked vehicles. The Emergency Services Team (est) drove a military-type truck and pulled up right in front of the trailer. The EST members wore bullet-proof vests and helmets and had the word “police” on their clothing. As the est approached the tráiler, Matyas activated the overhead lights and announced repeatedly over the vehicle’s public-address system, “This is the police. We have a search warrant.” Matyas testified that he continued the announcement for at least five minutes while he watched the est moving out of the truck and slowly toward the front door. According to Matyas, they paused at the door for about ten or fifteen seconds and then entered.
Michael Byam testified that he was a member of the State Police est that assisted in executing the search warrant. According to Byam, there was a marked unit with an overhead light that was used to make the announcement, followed by a vehicle that carried the raid team and then a third vehicle. Byam testified that when the lead car came to a stop in front of the trailer it activated its overhead lights and announced, “State police, search warrant, open the door.” However, Byam agreed that the announcement may have been just “Police. Search warrant.” All the est officers entering the residence wore paramilitary uniforms and raid vests that were marked “police” across the front. Byam also testified that, as he was taking his position behind the residence, he observed a male looking out the window, which he immediately reported to the entry team orally and then by radio.
John Porter testified that he was a member of the State Police EST that assisted in executing the search warrant. Porter stated that he rode in the truck and was wearing fatigues, a heavy vest that said “police” across the front, a black hood, and a helmet. Porter heard the announcement, “State police. We have a search warrant” being given as he was getting out of the truck. Once the team got out of the truck, it took them twenty to thirty seconds to reach the door. Once they all arrived at the door, they gained access in five seconds or less. Porter testified that he did not knock or make any announcement when he was at the door.
Officer Rickey testified that he was parked on the road when the est truck approached the trailer. Rickey stated that before the van turned into the driveway, it turned on its overhead lights and announced “State police. Search warrant” over the loud speaker. While the announcement continued, Rickey saw the EST members get out of the rear of the van, get into formation, and slowly approach the front door. They held their position in front of the door for a short time and then entered. Rickey estimated that it took the est forty-five seconds to get from the van to the door and that they then waited another thirty seconds before entering.
Other witnesses testified that they did not hear a police announcement.
The trial court held that the police officers executing the search warrant did not violate the knock-and-announce requirement. The court ruled that it was sufficient that the police repeatedly announced “State police. We have a search warrant” over a loudspeaker for at least thirty to sixty seconds before the officers entered the house. The court found that the request to enter was implicit in the announcement. Defendant argues on appeal that, even if the police announced “Police. Search warrant” over a loud speaker, they did not satisfy the knock-and-announce requirement because the general announcement did not serve to elicit an invitation to enter or to confirm that admittance was being refused. We disagree.
Several police officers testified that they announced “Police. Search warrant” over a public-address system for at least thirty seconds before entering the residence. In addition, police officers testified that the overhead lights of at least one of the police vehicles were flashing and there was evidence that this was visible to the trailer’s occupants. The members of the EST that performed the initial entry of the house were wearing raid gear that was marked “Police” in front. Officer Byam testified that, as he was approaching the trailer, he saw a male looking out the window, which he immediately reported to the entry team.
Under the circumstances, the announcement was sufficient to notify the occupants of the officers’ authority and purpose. Williams, supra at 545. Neither case law nor statute requires that the police physically knock on the door; rather, they need only give proper notice to the occupants of their authority and purpose. Moreover, the police waited at least thirty seconds from the time that the announcement began before entering, which was a reasonable time for the occupants to answer the door. Id.; People v Humphrey, 150 Mich App 806, 814; 389 NW2d 494 (1986) (knock-and-announce statute was not violated when police, after announcing their presence and purpose, waited twenty to thirty seconds before breaking down the door). This case is unlike Wilson, supra at 929, in which the officers did not announce their Presence and state that they had a warrant until they were coming through the door of the residence to be searched. The trial court did not err in finding that the entry of the trailer complied with the statute and did not constitute an unreasonable search and seizure.
rv
Defendant next argues that the trial court erred in enhancing his sentences under both the habitual offender provisions, MCL 769.11(1)(a); MSA 28.1083(1)(a), and the controlled substance provisions of the Public Health Code. MCL 333.7413(2); MSA 14.15(7413)(2). By enhancing under both statutes, the trial court imposed sentences that quadrupled the original maximum sentences for the underlying offenses. We conclude that the Legislature did not intend that a sentence for a subsequent drug offense be quadrupled by enhancement under both enhancement provisions, and we therefore remand for resentencing.
A
Provided permissible factors are considered, appellate review of sentencing determinations is limited to whether the sentencing court abused its discretion. People v Odendahl, 200 Mich App 539, 540-541; 505 NW2d 16 (1993). However, we review questions of statutory interpretation de novo. People v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991).
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994). The first criterion in determining intent is the specific language of the statute. People v Pitts, 216 Mich App 229, 232; 548 NW2d 688 (1996). The Legislature is presumed to have intended the meaning it plainly expressed. People v Roseburgh, 215 Mich App 237, 239; 545 NW2d 14 (1996). If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. People v Nantelle, 215 Mich App 77, 80; 544 NW2d 667 (1996). However, literal constructions that produce unreasonable and unjust results that are inconsistent with the purpose of the act should be avoided. Grand Blanc Cement Products, Inc v Ins Co of North America, 225 Mich App 138, 143; 571 NW2d 221 (1997), quoting Rowell v Security Steel Processing Co, 445 Mich 347, 354; 518 NW2d 409 (1994).
The habitual offender statute provides in pertinent part:
(1) If a person has been convicted of 2 or more felonies . .. that person shall be punished upon conviction as follows:
(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, then the court, except as otherwise provided in this section or section 1 of chapter 11, may sentence the person to imprisonment for a maximum term which is not more than twice the longest term prescribed by law for a first conviction of that offense or for a lesser term.
* * *
(c) If the subsequent felony is a major controlled substance offense, the person shall be punished as provided by part 74 of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.7401 to 333.7415 of the Michigan Compiled Laws. [MCL 769.11(1)(a), (c); MSA 28.1083(1)(a), (c).]
The term “major controlled substance offense” is defined by statute as a violation of MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a), a violation of MCL 333.7403(2)(a)(i)-(iv); MSA 14.15(7403)(2)(a)(i)-(iv), or conspiracy to commit either offense. MCL 761.2; MSA 28.843(12). The offenses of which defendant was convicted are not “major controlled substance offenses.”
The subsequent offender provision of the controlled substances provisions of the Public Health Code provides:
Except as otherwise provided in subsections (1) and (3), an individual convicted of a second or subsequent offense under this article may be imprisoned for a term not more than twice the term otherwise authorized or fined an amount not more than twice that otherwise authorized, or both. [MCL 333.7413(2); MSA 14.15(7413)(2).]
Subsections 1 and 3 do not apply to this case, and it is undisputed that defendant was convicted of a subsequent offense under the controlled substance article.
B
Defendant argues that this Court has repeatedly held that the habitual offender statute cannot be used to enhance a controlled substance violation on the basis of prior drug convictions because the controlled substance provisions specifically and exclusively provide for the enhancement of penalties in cases involving controlled substances. In support, defendant cites People v Edmonds, 93 Mich App 129; 285 NW2d 802 (1979), and its progeny.
The defendant in Edmonds was convicted of delivering heroin, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a), and had a previous conviction under the controlled substances act, MCL 335.348; MSA 18.1070(48). The defendant was also found to be a third-felony habitual offender. The sentencing court enhanced his sentence under both the habitual offender provision and the controlled substances act, increasing his maximum term for delivering heroin from twenty to eighty years. This Court held such enhancement improper:
The controlled substances act was enacted to regulate the control, manufacture, production, sale, possession, use, etc., of controlled substances, with penalties for violation of the act specifically delineated. As such the act represents this state’s comprehensive policy toward the use of controlled substances. As a specific and comprehensive measure the act’s sentence-augmentation provision controls over the general habitual offender statute. Accordingly the sentence on a second or subsequent drug offense is under the purview of § 48 of the controlled substance act exclusively. [Id. at 135.]
In a footnote, this Court noted:
It must be noted that application of the controlled substances act penalty augmentation is proper when the defendant is being sentenced on a drug conviction. If the defendant commits a nondrug felony after one or more drug convictions then the habitual offender act applies upon conviction of that nondrug felony. [Id., at 135, n 1.]
The Edmonds Court did not consider the 1978 amendment of MCL 769.11; MSA 28.1083, which pro vided that, if the subsequent felony is a major controlled substance offense, the person shall be punished as provided by 1971 PA 196, as amended (the controlled substances act). See People v Elmore, 94 Mich App 304, 306, n 1; 288 NW2d 416 (1979).
This Court followed Edmonds in Elmore. The defendant in Elmore was convicted of délivering heroin, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a), and of being an habitual offender, MCL 769.11; MSA 28.1083. The trial court enhanced his sentence under both the habitual offender statute and the controlled substance provisions. Elmore, supra at 305. This Court, following Edmonds, concluded that the sentencing court’s use of both the habitual offender statute and the controlled substance provisions to increase the maximum term for delivering heroin from twenty to eighty years was an improper enhancement of the defendant’s sentence. Id. at 305-306.
In People v Franklin, 102 Mich App 591; 302 NW2d 246 (1980), the defendant was convicted on her guilty pleas of delivering less than fifty grams of heroin, MCL 333.7401(2)(a)(iv); MSA 14.15(7401(2)(a)(iv), and of being a seventh-offense habitual offender, MCL 769.12; MSA 28.1084. Pursuant to a sentence agreement, the defendant was sentenced to four to twenty years’ imprisonment. Id. at 593. The defendant contended on appeal that her plea was the result of an illusory sentence agreement, arguing that because she was convicted of an offense set forth in the controlled substance provisions of the Public Health Code, her sentence could only be supplemented under the provisions of that article, MCL 333.7413; MSA 14.15(7413), and not under the general habitual offender provisions. She contended that since none of her prior convictions were for drug-related offenses, no supplementation was possible. This Court agreed that enhancement under the controlled substance provisions was not proper, but concluded that enhancement was permissible under the habitual offender statutes because the enhancement section of the controlled substance provisions did not apply. Id. at 594. Thus, this Court concluded that because the case did not involve a situation where both statutes were seemingly applicable, reliance on Edmonds, supra, and Elmore, supra, was misplaced.
c
The prosecutor dismisses Edmonds and Elmore as inapplicable on two bases. First, the prosecution argues that the Edmonds’ “preemption concept” has been rejected by other panels of this Court in People v Lynch, 199 Mich App 422; 502 NW2d 345 (1993), People v Brown, 186 Mich App 350; 463 NW2d 491 (1990), and People v Eilola, 179 Mich App 315; 445 NW2d 490 (1989), and by the Supreme Court in People v Bewersdorf, 438 Mich 55; 475 NW2d 231 (1991), cert den sub nom Johnson v Michigan, 502 US 1111; 112 S Ct 1214; 117 L Ed 2d 452 (1992). Second, the prosecution argues that the Legislature’s specific exclusion of major controlled substance offenses from the application of the habitual offender provisions evidences an intent to include other controlled substance violations within the ambit of the habitual offender provisions. We find both arguments unpersuasive as unsupported by the cases upon which they are based and the Supreme Court’s decision in People v Primer, 444 Mich 269; 506 NW2d 839 (1993).
l
In Eilola, supra, the defendant pleaded guilty of first-degree retail fraud, MCL 750.356c(2); MSA 28.588(3)(2), and of being a third-felony habitual offender. The defendant’s retail fraud charge had been elevated from second-degree retail fraud, a misdemeanor, to first-degree retail fraud, a felony, on the basis of a prior conviction of larceny in a building. The defendant argued on appeal that he could not be convicted of both first-degree retail fraud and as an habitual offender because to do so would constitute a double enhancement. This Court disagreed.
The Eilola Court discussed Edmonds, Elmore, and Franklin. The Court also discussed People v Honeycutt, 163 Mich App 757; 415 NW2d 12 (1987), in which this Court held that a conviction for possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), was not subject to enhancement under the habitual offender statutes. The Court continued:
Taming to the case at bar, we believe that the habitual-offender statutes can be utilized to enhance the sentence of a defendant who is convicted of first-degree retail fraud under subsection 2 of the statute. In reaching this conclusion, we believe that a number of important distinctions exist between the retail-fraud statute and the controlled substance statutes and the felony-firearm statute. Under the controlled-substance statute, the enhancement section clearly serves only to enhance a sentence and is based exclusively upon prior drug-related offenses. Under the retail-fraud statute, first-degree retail fraud is a substantive offense and the “recidivist” element contained in subsection 2 is but one alternate way of committing first-degree retail fraud. Additionally, although an offender can come under the recidivist provisions of first-degree retail fraud based upon a prior conviction for retail fraud, a first-degree retail fraud charge can also be based upon a prior conviction under certain other statutes, namely, false pretenses over $100, larceny over $100, and larceny in a building.
. . . Unlike the felony-firearm statute, or even the controlled-substance statutes, where application of both the enhancement provisions contained within those respective statutes as well as the general habitual-offender statute would produce ever escalating and conflicting results, the general habitual-offender statute dovetails harmoniously with the retail-fraud statute. That is, the internal provisions of the retail-fraud statute can raise an offense from a misdemeanor to a felony, but do not enhance the sentence once a defendant is at the level of a felony offense. At this point, the general habitual-offender statute can be applied where the offender has prior felony convictions. [Eilola, supra at 321-323.]
In Brown, supra, the defendant was charged with first-degree retail fraud for shoplifting cologne. As in Eilola, the charge was escalated from the misdemeanor, second-degree retail fraud, to the felony, first-degree retail fraud, on the basis of the defendant’s prior convictions of larceny. The defendant pleaded guilty of first-degree retail fraud and of being a fourth-felony habitual offender. He argued on appeal that because his prior convictions were used to establish his conviction of first-degree retail fraud, they could not be used as prior felonies under the habitual offender statutes. This Court disagreed, noting that the language of the statutes did not preclude use of the same prior offense under both statutes and observing:
hi questioning whether it would be proper to use a subsection 2 offense to establish both a subsection 2 conviction as well as a person’s status as an habitual offender, the Eilola Court cited Franklin, as the primary basis for its concern. Franklin dealt with the applicability of the general habitual-offender statutes to a defendant convicted under the controlled substances act for delivery of less than fifty grams of heroin. Although the defendant possessed several prior felony convictions, none were drug-related. Relying on People v Edmonds [supra], the defendant argued that the general habitual-offender statutes could not be used to enhance her controlled-substance conviction .... The Franklin Court, however, distinguished Edmonds, holding that, where a defendant is convicted of a controlled-substance offense, but has no prior convictions under the con trolled substances act, the sentence-enhancement provisions of that act are not applicable and, thus, enhancement under the general habitual-offender statutes is permissible.
As noted by the Eilola Court, the implication of Franklin is that, had the defendant in fact possessed prior drug-related convictions, thereby bringing the sentence-augmentation provisions of the controlled substances act into play, the habitual offender statutes could not have been used. . . .
We believe that, with respect to the applicability of the habitual-offender statutes, there are a number of important distinctions between a conviction under the controlled substances act and a conviction under subsection 2 of the first-degree retail-fraud statute that dispel the concern expressed in Eilola.
First, it must be noted that the determination in Edmonds, supra, that the sentence-augmentation provisions of the controlled substances act govern over those of the general habitual-offender statutes, was premised upon the fact that the controlled substances act represents this state’s comprehensive policy toward the use of controlled substances. The offense of first-degree retail fraud, however, is but one criminal offense under the general penal code; it is not part of a comprehensive state policy relating to larcenous offenses. . . .
More importantly, however, is that, while the controlled substances act contains sentence-enhancement characteristics similar to the habitual-offender statutes, the first-degree retail-fraud statute does not. That is, the sentencing provisions of both the controlled substances act and the habitual-offender statutes provide for gradations of punishment upon subsequent convictions. Thus, any attempt to apply the general habitual-offender statutes to a repeat controlled-substance offender would result in a direct conflict between similar sentencing schemes. Where there is a conflict, the specific enhancement statute will prevail to the exclusion of the general one.
The first-degree retail-fraud statute on the other hand does not provide for gradations of punishment. Rather, it punishes the commission of a second-degree retail-fraud offense by a person with a prior conviction for a subsection 2 offense as a separate substantive offense. In other words, while both the controlled substances act and the general habitual-offender statutes use prior convictions to establish the severity of punishment for the repeat commission of criminal acts, the first-degree retail fraud statute uses prior convictions to establish the severity of the offense. Thus, because different statutory schemes are involved, a conflict does not arise from the mutual application of the two statutes to the same prior conviction. [Brown, supra at 354-357 (citations omitted; emphasis added).]
In Bewersdorf, supra, the Supreme Court held that the general habitual offender provisions can be used to enhance a sentence for a felony conviction of operating a motor vehicle while under the influence of intoxicating liquor (ouil). The ouil statutory scheme, like the retail fraud statutory scheme at issue in Eilola and Brown, provides for the escalation of a misdemeanor to a felony, with increased penalties, based on prior convictions of similar offenses. The Court observed:
While the habitual offender act, which is found in the Code of Criminal Procedure, establishes a procedure for enhancing a sentence, it is clear that the OUIL provisions of the Motor Vehicle Code establish crimes. Because 0UIL-3 is a separate crime, the prosecutor must prove all elements of the offense, including the prior convictions. [Bewersdorf, supra at 68.]
In Lynch, supra, this Court determined, following Bewersdorf and Eilola, that a conviction of fleeing and eluding, second offense (a felony enhancement of the misdemeanor charge of fleeing and eluding based on a prior conviction) could be enhanced under the habitual offender provisions.
We conclude that Bewersdorf and Lynch are consistent with Eilola and Brown and do not undermine Edmonds and Elmore. All four cases allow the enhancement under the general habitual offender provisions of felony convictions of offenses that include as an enhancing element the prior commission of a similar offense. None of these cases involved the general habitual enhancement of a sentence already enhanced by a sentencing enhancement provision such as that involved here.
2
The prosecution also relies on the amendment of the habitual offender provisions expressly stating that a major controlled substance offender is to be punished as provided in the Public Health Code. The prosecution argues that the legislative exclusion of major controlled substance offenses implies the inclusion of other controlled substance offenses. However, the Supreme Court addressed the legislative intent of this provision in People v Primer, supra. In that case, Primer pleaded guilty of delivering less than fifty grams of cocaine and tendered a conditional plea of guilty to a second-offense habitual offender charge. Under the controlled substances act, MCL 333.7403; MSA 14.15(7403), the sentence was mandated to be not less than one year nor more than twenty years, or life probation. Primer was sentenced as an habitual offender to a seven- to twenty-five-year term. The second defendant, Hegwood, pleaded guilty of the same offenses and was sentenced as an habitual offender to nine to thirty years. Id. at 273.
On appeal, both defendants argued that they could not be sentenced under the habitual offender provi sions because of the specific provision added to those provisions in 1978 providing that a person convicted of a major controlled substance offense shall be punished as provided in the Public Health Code. The Primer Court stated the question presented as
whether a person convicted of a major controlled substance offense, who has no prior record of conviction of a drug offense, but has a prior record of conviction of another felony, may be punished as an habitual offender under the provisions of the Code of Criminal Procedure consistent with the 1978 amendment of those provisions stating that "[i]f the subsequent felony is a major controlled substance offense, the person shall be punished as provided” in the Public Health Code. [Id. at 271 (emphasis added).]
Notwithstanding the amendment, the Court answered in the affirmative:
We hold that the legislative purpose [of the 1978 amendments] was to assure that the mandatory [minimum] sentences for the commission of a first or subsequent major controlled substance offense would not be ameliorated as the result of the exercise of discretion regarding the length of sentence provided in the habitual offender provisions in the Code of Criminal Procedure, and not to preclude enhancement of a sentence under the habitual offender provisions that might be imposed on a person who has a record of prior felony conviction, albeit not for a major controlled substance offense.
... In providing that a person convicted of a major controlled substance offense shall be punished as provided in the Public Health Code, the Legislature may have been con cerned that a judge reluctant to impose a mandatory sentence provided in the Public Health Code might utilize the habitual offender provisions to eliminate the mandatory sentence on the basis that § 13 provides that the sentence imposed for the underlying offense — the mandatory sentence — shall be vacated and a new sentence imposed.
There is no mandatory minimum sentence, even for a fourth offender, under the habitual offender sentencing provisions. Accordingly, after sentencing a person under the habitual offender provisions to a term less than the mandatory sentence provided for in the Public Health Code, a judge — but for the proviso stating that where the conviction is for a major controlled substance, the person “shall be punished” as provided in the Public Health Code- — could vacate the sentence imposed under the Public Health Code and substitute a term of years less than the mandatory sentence provided in the Public Health Code. The legislative purpose may thus have been to obviate such manipulation.
We do not read “shall be punished as provided” in the Public Health Code in this context as meaning that a greater sentence could not be imposed under the habitual offender provisions.
The minimum sentences were well within the one- to twenty-year range provided for in the Public Health Code. Imposing maximum sentences greater than the twenty years provided in the Public Health Code did not violate the statutory edict requiring punishment as provided in the Public Health Code. [Id. at 271-275.]
According to Primer, the Legislature’s intent in enacting the amendment pertaining to major controlled substance offenses was to assure that the mandatory minimum sentences for first or subsequent major controlled substance offenses would not be avoided through the exercise of discretion permitted in fashioning sentences under the general habitual offender provisions. Primer at 272. Thus, the addition of the provision was not intended as an exclusion of major controlled substance offenses from the ambit of the habitual offender provisions, and, therefore, the reference only to major controlled substance offenses (the only controlled substance offenses providing for mandatory minimum penalties) cannot be seen as an implied inclusion of other controlled substance offenses. In short, the amendment did nothing to either enlarge or curtail the scope of the general habitual offender provisions as determined in Edmonds, Elmore, and Franklin.
D
Consistent with the cases discussed above, we conclude that the Legislature did not intend that sentences for subsequent controlled substance offenses be quadrupled by enhancement under both the habitual offender provisions and the controlled substance enhancement provision. A careful reading of the cases reveals three consistent principles. Where a defendant is subject to sentence enhancement under the controlled substance provisions, the sentence may not be doubly enhanced under the habitual offender provisions. Edmonds; Elmore. Where 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. Franklin; Primer. 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 permitted. Brown; Eilola; Lynch; Bewersdorf.
Thus, we conclude double enhancement was improper. We vacate defendant’s doubly enhanced sentences and remand for resentencing.
v
In a supplemental brief filed in propria persona, defendant argues that he was denied his right to be l'ree from unreasonable searches and seizures and his light to privacy when the trial court failed to suppress the fruits of a search based on an affidavit and warrant alleged to be clearly deficient on its face.
Before trial, defendant moved to suppress the evidence seized at his residence on the ground that the affidavit was invalid on its face. Among other things, defense counsel argued that the document was entitled “affidavit for search warrant” rather than “search warrant” and did not contain the standard language that directs a specific agency to conduct the search. According to defense counsel, the Supreme Court-approved search warrant form begins, “TO THE SHERIFF OR any peace OFFICER: [blank space for name of affiant] has sworn to the attached affidavit regarding the following:” The trial court denied defendant’s motion, finding that it elevated form over substance.
During the preliminary examination, Officer Rickey testified that he prepared the affidavit and search warrant for the trailer. Rickey explained that the search was the third in a series spanning twenty-six hours. Consequently, Rickey tried to save time in pre paring the warrant by cutting portions from the previous warrants and photocopying them onto new forms. In the process of preparing the warrant, Rickey apparently used the top portion of the affidavit that included the title and omitted the language quoted above.
Reviewing courts should read search warrants and affidavits in a common-sense and realistic manner. People v Stumpf, 196 Mich App 218, 220; 492 NW2d 795 (1992), cert den 510 US 1042; 114 S Ct 686; 126 L Ed 2d 654 (1994). Here, the content of the document, including the signed order of the magistrate commanding the search, indicates that the document is a search warrant. Both the warrant and the attached affidavit name Officer Rickey as the affiant. Although the first sentence of the standard search warrant form stating that the affiant has “sworn” to the affidavit was omitted, the first page of the attached affidavit includes a signed and dated attestation by the magistrate that the affidavit was “subscribed and sworn before [him].” It is clear from reading the warrant and the first page of the attached affidavit that the warrant was directed to Officer Rickey, a Kalamazoo Township police officer assigned to the Southwest Enforcement Team. The cases cited by defendant are inapposite because defendant does not claim that the affidavit failed to state probable cause for the search. The trial court’s conclusion that the affidavit was valid despite the problems cited by defendant was not clearly erroneous and the trial court properly refused to suppress the evidence seized pursuant to the warrant.
VI
Defendant next argues that his right to be free from unreasonable searches and seizures was violated by the trial court’s failure to suppress evidence from a search that was based on the fruits of a previous illegal search.
Before trial, defendant moved to suppress the evidence seized from the storage unit. Defendant argued that because police possessed information about the storage unit before they conducted the search of the trailer, the warrant for the trailer should have specifically stated that police were searching for items related to the storage unit. Thus, defendant argued, the checkbook containing information about the storage unit was improperly seized from the trailer, and the evidence seized from the storage unit should be suppressed because the checkbook was used to establish probable cause for the search. The trial court found that the checkbook was included within the list of items to be searched for and seized at the trailer.
Under both federal law and Michigan law, the purpose of the particularization requirement in the description of items to be seized is to provide reasonable guidance to the executing officers and to prevent their exercise of undirected discretion in determining what is subject to seizure. MCL 780.654; MSA 28.1259(4); People v Zuccarini, 172 Mich App 11, 15; 431 NW2d 446 (1988). The degree of specificity required depends on the circumstances and types of items involved. Id. The search warrant for the trailer included, by reference to the attached affidavit, the following items:
1. Books, records, receipts, notes, ledgers, and other papers relating to the transportation, ordering, purchase and distribution of controlled substances, in particular, marijuana and other controlled dangerous substances.
* * *
3. Books, records, invoices, receipts, records of real estate transactions, bank statements and related records, passbooks, money drafts, letters of credit, money orders, bank drafts and cashiers checks, bank checks, safe deposit box keys, money wrappers, and other items evidencing the obtaining, secreting, transfer, and/or concealment of assets and the obtaining, secreting, transfer, concealment, and/or expenditure of money.
We conclude that the checkbook seized at the trailer fell within the items described. Zuccarini, supra at 15-16. Although the warrant could have been more specific, it was sufficient.
vn
Defendant last argues that he was denied his right to an impartial jury when a juror took part in a discussion at her neighbor’s house, during trial, about defendant’s criminal history. Under the circumstances presented here, we disagree. This Court granted defendant’s motion to remand to allow defendant to move for a new trial on the ground that he was denied his right to an impartial jury. An evidentiary hearing was held, and the trial court denied his motion. In People v Nick, 360 Mich 219, 230; 103 NW2d 435 (1960), our Supreme Court set forth the standard of review where there is an allegation of juror misconduct:
[I]t is well established that not every instance of misconduct in a juror will require a new trial. The general principle underlying the cases is that the misconduct must be such as to affect the impartiality of the jury or disqualify them from exercising the powers of reason and judgment. A new trial will not be granted for misconduct of the jury if no substantial harm was done thereby to the party seeking a new trial, even though the misconduct is such as to merit rebuke from the trial court if brought to its notice.
The Court further stated that it had repeatedly recognized that to justify the granting of a new trial “error must appear affirmatively.” Id. at 227. Prejudice must be shown, or facts clearly establishing the inference that it occurred from what was said or done. Id.; People v Hayes, 126 Mich App 721, 729; 337 NW2d 905 (1983). Before this Court will order a new trial on the ground of juror misconduct, some showing must be made that the misconduct affirmatively prejudiced the defendant’s right to a trial before an impartial and fair jury. People v Provost, 77 Mich App 667, 671; 259 NW2d 183 (1977), rev’d on other grounds 403 Mich 843 (1978).
The trial court found the juror to be a credible witness and believed her testimony that she left immediately after her neighbor began to talk about defendant. Credibility is a matter for the trial court, as the tiier of fact, to decide. People v Daniels, 172 Mich App 374, 378; 431 NW2d 846 (1988). The court found the neighbor and a friend to be less credible because of their connections to defendant. The neighbor had known defendant for about forty years; the friend had been a friend and hunting partner of defendant’s girlfriend for about three years, and had stored some of defendant’s belongings for him the last time defendant was in jail, although he claimed that he only met defendant twice.
The facts of this case are similar to those in People v Strand, 213 Mich App 100; 539 NW2d 739 (1995), where the defendant moved for a new trial after two jurors testified in a post-trial hearing that they learned during the course of the trial that the defendant had a prior sexual assault conviction. This Court found that the trial court did not abuse its discretion in denying the defendant’s motion because the jurors testified that they did not disclose the information to the other jurors. Id. at 104. In addition, the jurors stated that the information did not affect the impartiality of their verdicts because they questioned whether the information was true. Id. As in Strand, the juror here testified that she did not share the information about defendant’s prior drug offenses with the other jurors. Although she did not testify whether she believed the information to be true, she testified that what she heard did not affect her decision.
We conclude that the trial court did not err in its determination that the juror’s impartiality was not impaired, and that defendant was not entitled to a new trial.
Defendant’s underlying convictions are affirmed, and the matter is remanded for resentencing.
We do not retain jurisdiction.
An officer clarified that the master bedroom was the same room as the back or rear bedroom.
At the time defendant was convicted and sentenced, MCL 333.7401; MSA 14.15(7401) provided:
(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance ....
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) and:
(i) Which is in an amount of 650 grams or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life.
(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years.
(iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 10 years nor more than 20 years.
(iv) Which is in an amount less than 50 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 1 year nor more than 20 years, and may be fined not more than $25,000.00, or placed on probation for life.
At pertinent times, MCL 333.7403; MSA 14.15(7403) provided:
(1) A person shall not knowingly or intentionally possess a controlled substance, a controlled substance analogue . . . unless the controlled substance, controlled substance analogue . . . was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this article.
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv), and:
(i) Which is in an amount of 650 grams or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life.
(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years.
(iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 10 years nor more than 20 years.
(iv) Which is in an amount of 25 grams or more, but less than 50 grams of any mixture containing that substance is guilty of a felony, and shall be imprisoned for not less than 1 year and not more than 4 years, and may be fined not more than $25,000.00 or placed on probation for life.
We thus reject defendant’s argument that the instant offenses are not included in the offenses subject to enhancement under the controlled substance provisions. See MCL 333.7413(2); MSA 14.15(7413)(2).
The controlled substances act has since been reenacted as part of the Public Health Code. The provisions are virtually identical.
The statutory reference to major controlled substance offenses in the habitual offender statute has been changed to refer to the Public Health Code, rather than the repealed controlled substances act.
The Elmore Court observed:
We note that the conclusion reached on this question by the panel in Edmonds is further reinforced by the Legislature’s subsequent amendment of MCL 769.11; MSA 28.1083, which now provides:
(c) 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. [Id. at 306, n 1 (emphasis in Elmore).]
Although the Elmore Court refers to the Legislature’s subsequent amendment of MCL 769.11; MSA 28.1083, the amendment actually preceded the Court’s decision in Edmonds, being immediately effective on March 22, 1978. With respect to the legislative intent of the amendment, see the dis cussion of People v Primer, 444 Mich 269; 506 NW2d 839 (1993), pp 537-540 infra.
This issue was not addressed in Eilola, where the Court determined only that a conviction of first-degree retail fraud under section 2 could be enhanced under the habitual offender provisions and left open the question whether a conviction that is used to raise second-degree retail fraud to first-degree retail fraud can also be used to justify an habitual charge. Eilola, supra at 324.
While Franklin is not discussed in Primer, under Franklin defendants would be subject to sentencing under the general habitual provisions for a first drug offense.
Because we remand for resentencing we need not address defenditnt’s proportionality claim.
The trial court erroneously found that nothing was said about defendant. This error notwithstanding, under the circumstances presented here, we conclude that the incident was not such that it affected the impartiality of the jury. Nick, supra at 230. | [
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Doctoroff, P.J.
By order of the Supreme Court, which remanded this case for consideration as on leave granted, petitioner Family Independence Agency appeals the circuit court order affirming the probate court order that dismissed the petition to terminate respondent Henry Plovie’s parental rights. We reverse and remand.
Respondent’s daughter, S. R., was bom December 8, 1992. On May 10, 1994, S. R.’s mother called the local police and reported that respondent had removed the child from the house without the mother’s cohsent and had left a suicide note. An officer found respondent and the child in the front seat of an automobile with its engine running. All the doors and all but one of the windows of the automobile were closed. Both respondent and the child were unconscious. Respondent reportedly told an investigating officer that he “loved [S. R.] to death and that is why he took her out to the car with him.”
Respondent was later prosecuted for the attempted murder of S. R. but was ultimately convicted only of second-degree child abuse. He was sentenced to three to eight years’ imprisonment. On June 9, 1995, at the request of the Family Independence Agency, the Oakland County Prosecutor’s Office filed a petition for termination of respondent’s parental rights, citing MCL 712A.19b(3)(b)(i), (3)(b)(ii), (3)(g), and (4); MSA 27.3178(598.19b)(3)(b)(i), (3)(b)(ii), (3)(g), and (4).
As a basis for the court’s jurisdiction under MCL 712A.2(b); MSA 27.3178(598.2)(b), the petition cited the details of respondent’s actions on May 10, 1994, his subsequent prosecution, and his resulting conviction and sentence. A hearing was held on June 9, 1995, before a probate court referee. The referee found that the child “[did] not come under jurisdiction of this Court because she is not in any danger from this particular individual” and dismissed the petition. The referee’s decision was affirmed by a judge of the probate court who found that “[t]he prosecutor has failed to establish facts from which referee could find probable cause that the child is presently at risk.”
Petitioner appealed as of right to the Oakland Circuit Court. At a hearing on January 22, 1997, the circuit court agreed with the probate court’s disposition of the case:
[A]s a very practical matter, the referee did focus on the fact that the child was currently in the physical custody of the mother, and since the father is incarcerated, he cannot really subject her to any physical risks so as to revoke [sic] jurisdiction under MCLA 7.128(2)(b) [sic].
A corresponding order was entered February 27, 1997.
Petitioner applied for leave to appeal to this Court. The application was denied in an order entered May 2, 1997 (Docket No. 201975), and petitioner filed an application for leave to appeal to the Supreme Court. The Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court “for consideration as on leave granted.” In re Ramsey, 455 Mich 861 (1997).
Probate court jurisdiction over termination proceedings is derived solely from statutes and the constitution. In re Toler, 193 Mich App 474, 476; 484 NW2d 672 (1992). MCL 712A.2; MSA 27.3178(598.2) provides in pertinent part:
The juvenile division of the probate court has the following authority and jurisdiction:
(b) Jurisdiction in proceedings concerning any juvenile under 18 years of age found within the county:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. . . .
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, or other custodian, is an unfit place for the juvenile to live in.
To acquire jurisdiction, the factfinder must determine by a preponderance of the evidence that the child comes within the statutory requirements of MCL 712A.2; MSA 27.3178(598.2). In re Brock, 442 Mich 101, 108-109; 499 NW2d 752 (1993). The probate court cannot terminate a parent’s rights pursuant to MCL 712A.19b(3)(b); MSA 27.3178(598.19b)(3)(b) unless jurisdiction exists under MCL 712A.2(b); MSA 27.3178(598.2)(b). See In re Riffe, 147 Mich App 658, 668; 382 NW2d 842 (1985).
We find that the probate court erred in declining to assume jurisdiction over the child under MCL 712A.2(b); MSA 27.3178(598.2)(b). Statutory interpretation is a question of law reviewed de novo on appeal. In re Ballard, 219 Mich App 329, 331; 556 NW2d 196 (1996). The primary goal of interpreting a statute is to give effect to the Legislature’s intent in drafting the statute. In re Marin, 198 Mich App 560, 564; 499 NW2d 400 (1993). Statutory language should be construed reasonably, keeping in mind the objective and purpose of the act. Id. Furthermore, nothing will be read into a statute that is not within the manifest intent of the Legislature as gathered from the act itself. Id. This Court reviews factual findings with respect to termination of parental rights under the clearly erroneous standard. In re Ballard, supra at 331.
The purpose of child protective proceedings is the protection of the child. In re Brock, supra at 107. Among other things, the Probate Code grants the pro bate court jurisdiction over any minor who is “subject t;o a substantial risk of harm to his or her mental well-being. . . .” MCL 712A.2(b)(1); MSA 27.3178(598.2)(b)(1); In re Middleton, 198 Mich App 197, 199; 497 NW2d 214 (1993). For this Court to find, its the probate court did, that a father who attempted to kill his 1 Vi-year-old daughter does not present a “substantial risk of harm” to the child sufficient to invoke the jurisdiction of the probate court would completely contravene the Legislature’s intent in providing for the termination of parental rights. Where, as here, a parent attempted to kill his child, purportedly because he loved her, there most certainly will be some negative effect on the child’s mental well-being. The fact that respondent was serving a prison sentence when the petition to terminate his parental rights was filed does not eliminate the mental and emotional effect on the child of his violent conduct. We therefore hold that the lower courts clearly erred in finding that S. R. was not subject to a substantial risk of harm to her mental well-being sufficient to invoke the probate court’s jurisdiction over her. Our holding in this case is entirely consistent with previous decisions of this Court.
In In re Emmons, 165 Mich App 701, 702-703; 419 NW2d 449 (1988), the respondent father pleaded guilty of second-degree criminal sexual conduct against one of his children and was sentenced to forty months’ to fifteen years’ imprisonment. The parents wire divorced, and the children were in the custody of their mother. Id. at 702. On appeal, the respondent argued that the probate court improperly assumed jurisdiction over the children, stating that the admission of his guilty plea violated his right against self- incrimination. Id. at 704. This Court disagreed, stating that evidence of the respondent’s guilty plea was not incriminating to him. Furthermore, this Court found that the respondent’s guilty plea provided a basis to assume jurisdiction over the children, stating that “[a] parent’s sexual assault of his children is relevant, competent, and material evidence in a termination proceeding.” Id. at 705.
An earlier panel of this Court held that the respondent parents’ criminal status alone was not a sufficient basis for the probate court’s assumption of jurisdiction. In re Curry, 113 Mich App 821, 830; 318 NW2d 567 (1982). However, Curry is distinguishable from the present case on a significant point. In Curry, the respondent father was serving a prison sentence for being an habitual offender, and the mother was incarcerated on drug charges. In the present case, as in Emmons, the respondent parent was convicted of a crime against the child. By contrast, in Curry, the parents’ convictions were for crimes that did not involve the children, and their criminal acts were not shown to be related to their ability to care for the children. This is an important distinction. Although criminal status alone may not be a sufficient basis for the probate court’s assumption of jurisdiction, id. at 830, in the present case, as in Emmons, it is not the respondent’s criminal status alone that is alleged to be the basis for the court’s jurisdiction, but rather the respondent’s violent criminal act against the child, which was directly related to the child’s mental well-being and to respondent’s ability to care for the child.
In affirming the probate court’s decision in the instant case, the circuit court stressed the fact that the child was in the mother’s custody and was not in :my danger from the father while he was in prison. This Court rejected a similar argument in In re Marin, supra at 565-567. This Court acknowledged:
It can be reasonably argued that there is no need to terminate the parental rights of one parent where the child remains in the care and custody of the other parent and there is no basis for removing the child from the custodial parent’s care. While the noncustodial parent may not be a fit parent and may, in fact, as is the case here, pose a threat to the child, those concerns could be addressed through traditional custody and visitation proceedings in the circuit court, as well as, through the criminal justice system, as occurred here. [Id. at 565 (emphasis added).]
However, this Court explicitly rejected this argument, finding instead that “the Legislature envisioned and intended that the probate court could terminate the parental rights of just one parent.” Id. at 566.
Further, we note that the probate court’s interpretation of MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2) would lead to the incongruous result that a petition filed the day before a respondent parent’s conviction would result in the probate court’s finding of jurisdiction, whereas the same petition filed the day after the parent’s conviction would not. We are not willing to jeopardize the welfare of a child on the basis of such a technicality. Of course, it is still for the probate court to determine whether respondent is a fit parent. Our decision today merely affirms that the court has jurisdiction to make that determination.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Per Curiam.
Today we consider and resolve five questions relating to the Maintenance-of-Support Clause of Const 1963, art 9, § 29, part of the “Headlee Amendment”:
(1) Are special education and special education transportation state-mandated activities or services within the meaning of art 9, § 29? Yes.
(2) Is the “state match” payment for school lunches part of the “state financed proportion” for the purpose of computing compliance with art 9, § 29? Yes.
(3) Are payments that are required of the state by art 9, § 29 “funds constitutionally dedicated for specific purposes” and exempt from executive order reduction under Const 1963, art 5, § 20? Yes.
(4) Are plaintiffs’ attorney fees in this case part of the costs that may be recovered under Const 1963, art 9, § 32? Yes.
(5) What is the appropriate remedy for the violation of art 9, § 29 in this case? A money judgment for plaintiff school districts for the full amount of underfunding for 1991-92, 1992-93, and 1993-94, to use for refunds for taxpayers, tax relief, or other public purposes.
THE HEADLEE AMENDMENT
Sections 25 through 34 of article 9 of the Constitution of 1963 were adopted pursuant to initiative petition, Proposal E, at the general election of November 7, 1978. They are popularly called the “Headlee Amendment.” The Headlee Amendment imposes on state and local government a fairly complex system of revenue and tax limits. These are summarized in art 9, § 25 and implemented in the following sections. There are three main elements. Section 26 limits any changes in total state revenues to an amount based on changes in personal income in the state. Section 31 prohibits units of local government from levying any new tax or increasing any existing tax above authorized rates without the approval of the unit’s electorate.
The third element of the Headlee system is summarized in art 9, § 25, which states in part, “The state is prohibited from requiring any new or expanded activities by local governments without full state financing, from reducing the proportion of state spending in the form of aid to local governments, or from shifting the tax burden to local government.” These requirements are implemented in §§ 29 and 30. The application of the general, even vague, concepts of these sections to the complexities of state-local relations has proven a difficult task, as illustrated by the history of this case.
HISTORY OP PROCEEDINGS
This case is a consolidation of three groups of original actions filed in the Court of Appeals under art 9, § 32. The first of these, the Durant case, was filed on May 7, 1980, on behalf of seven taxpayers who were residents of the Fitzgerald School District and that district. Defendants are the Department of Education, the Department of Management and Budget, and the State Treasurer. Plaintiffs alleged that the state was violating its duty under art 9, § 29 to maintain the state-financed proportion of the necessary costs of activities that state law orders plaintiff school district to perform.
The Court of Appeals is an appellate court that has not been set up to conduct trials, much less trials involving complex factual questions. It initially ruled that the plaintiffs must first exhaust administrative remedies under the act passed by the Legislature to implement the Headlee Amendment, 1979 PA 101, MCL 21.231 et seq.; MSA 5.3194(601) et seq.; 110 Mich App 351; 313 NW2d 571 (1981). This Court reversed, ruling that plaintiffs were not required to exhaust administrative remedies before the local government claims review board. 413 Mich 862 (1982).
On remand from this Court, the Court of Appeals ruled on a number of significant points in the continuing progress of the case. The most basic substantive question at that time was whether elementary and secondary education as a whole was a state-mandated activity within the requirements of § 29. The Court of Appeals determined that it was not and that the proper focus was on more specific programs, listing special education as an example of such an activity. 129 Mich App 517, 526; 342 NW2d 591 (1983). The Court also ruled that it was unable to grant relief, particularly mandamus because there were disputed facts and again dismissed the case. Id. at 534. This Court affirmed the substantive holding of the Court of Appeals concerning education as a whole. 424 Mich 364; 381 NW2d 662 (1985). However, we reversed the Court of Appeals procedural dismissal, noting that § 32 gave the taxpayers the right to proceed in the Court of Appeals. We remanded the case to the Court of Appeals, suggesting the appointment of a Special Master to act as factfinder. 424 Mich 394.
The Court of Appeals accepted the suggestion and appointed Macomb Circuit Judge George R. Deneweth as Special Master. The case was submitted on live testimony, depositions, extensive stipulations of facts, and lengthy briefs. Among the many issues raised by the parties and addressed in the Special Master’s report are the four issues raised by defendant in this appeal. On each of these issues, the Special Master and Court of Appeals have consistently ruled in favor of plaintiffs. The Court of Appeals accepted the Master’s holdings that special education, special education transportation, driver’s education, and school lunch and supplemental milk programs were state-mandated activities within § 29. All these were the beneficiaries of specific categorical state aid. The Court rejected a claim by plaintiffs on the basis of activities mandated by statute that had not been supported by specific “categorical” aid. It disagreed with some of the Master’s recommendations on how to compute “necessary costs.” It remanded for recalculation of the amounts involved. 186 Mich App 83; 463 NW2d 461 (1990). Defendants filed an application for leave to appeal with this Court.
In the meantime, a second group of plaintiffs, consisting of fifty-one taxpayers and fifty-one school districts, filed their own original action in the Court of Appeals, Schmidt v State of Michigan (Docket No. 132677). Their complaint for relief was modeled on the first amended complaint in Durant. In the context of the multiple school districts, a question appeared that had been hidden in Durant, which had only one school district plaintiff. In Schmidt, the proportional support that the state had provided in base year 1978-79 varied from district to district, even for the same activity. The assumption of the complaint was that these built-in variances would be maintained. The complaint asked for a money judgment for each school district on the basis of the state’s failure to maintain funding at each district’s base-year level.
The Court of Appeals dismissed the Schmidt claim in an unpublished order, entered November 9, 1990 (Docket No. 132677). The order stated that a claim for underfunding under the first sentence of art 9, § 29 must be based on a decrease in the funding for an activity “across all school districts in the state.” That is, as long as the state aid for a program given to all school districts across the state did not fall below the proportion of necessary costs supported in the base year (statewide), it did not matter if some school districts saw their individual levels of support fah.
On appeal, this Court reversed. Unlike art 9, §§ 26 and 31, which specify corrections for anticipated problems, § 29 does not address remedy, or even the problem noted by the Court of Appeals, whether an individual unit of government has an enforceable right to have its own level of support maintained. In an effort to devise a solution most likely to effectuate the will of the electorate that adopted § 29, we decided that each unit of local government should have a right to continued state support for state-mandated activities, but that use of different base-year proportions for each unit of government would build in undesirable anomalies. Thus, we held that the base-year proportion would be computed on a statewide level and each local unit could count on that base level of support in each ensuing year. 441 Mich 236; 490 NW2d 584 (1992). We remanded Schmidt to the Court of Appeals.
The result of Schmidt was that all the computations in Durant were inaccurate. We remanded Durant to the Court of Appeals in light of Schmidt. 441 Mich 930 (1993).
On remand, the Court of Appeals consolidated Durant and Schmidt and added a third group of thirty-three cases raising similar issues that had been filed at the Court of Appeals and held in abeyance pending our decision in Schmidt. The Court of Appeals, 203 Mich App 507; 513 NW2d 195 (1994), appointed Wayne Circuit Judge James E. Mies as Special Master. Judge Mies decided a number of post-Schmidt issues not relevant to this appeal. The Court of Appeals accepted his recommendations, 213 Mich App 500; 541 NW2d 278 (1995). After initially denying leave to appeal, 453 Mich 892 (1996) (Boyle, J., dissenting), we granted reconsideration and leave to appeal, 453 Mich 952 (1996) (Cavanagh, J., dissenting).
ANALYSIS
I. SPECIAL EDUCATION AND SPECIAL EDUCATION TRANSPORTATION
Article 9, § 29 indicates, in part:
The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law.
Defendants concede that special education is required by state law. However, they argue that when an activity is required or imposed by federal law, it is not required by state law within the meaning of Const 1963, art 9, § 29, citing Schmidt, supra, 441 Mich 262 and, by analogy, Sacramento v California, 50 Cal 3d 51; 266 Cal Rptr 139; 785 P2d 522 (1990). They further argue that the federal requirement is found in three sources: the Education for All Handicapped Children Act (eahca) (now called the Individuals with Disabilities Education Act — idea), which provides financial assistance for states that have complying special education programs, 20 USC 1401 et seq.; § 504 of the Rehabilitation Act of 1973, 29 USC 794, which prohibits discrimination against the handicapped in programs receiving federal aid; and the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. Because we reject defendants’ argument that there is an exception in § 29 for federal mandates, we do not address the argument that federal law mandates special education.
Plaintiffs argue that defendants are misreading Schmidt. There is no exception in art 9, § 29 for state mandates that are also subject to a federal mandate, and that such an exception would be contrary to the intent of the electorate in adopting the Headlee Amendment.
The Court of Appeals, on second remand, 186 Mich App 105, rejected defendants’ arguments “because state law imposes a stricter obligation on the state and its local units of government and because these governmental entities are charged with the duty of establishing and implementing specific programs and related services . . . .”
We first consider and reject defendants’ arguments that we recognized a federal exception in Schmidt. We then consider whether we should now recognize such an exception.
Defendants do not base their argument for a federal-mandate exception on the language of art 9, § 29. Rather, they argue that this Court recognized such an exception in part m of our opinion in Schmidt. This part of Schmidt concerned the employer share of federal social security taxes. Before 1989, the state paid the employer share of federal social security taxes for school districts. Beginning in 1989, the state decreased or eliminated that aid. Plaintiffs in Schmidt alleged that this violated art 9, § 29. We rejected that claim, stating:
Plaintiffs sought to frame their social security costs claim as though social security coverage constituted a separate state-required activity or service. However, social security coverage is directly imposed by federal law and therefore not required by state law within the meaning of § 29. Second, social security coverage does not constitute an activity or service within the meaning of § 29. [441 Mich 262.]
Neither of these reasons helps defendants here. First, special education is “required ... by state law” within the language of art 9, § 29. Second, special education is an “activity or service” within that provision.
The question remains whether there is such an exception. In deciding that question, we are guided by very basic rules of constitutional interpretation. In Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), we stated that the primary rule of constitutional interpretation is the rule of “common understanding” described in 1 Cooley, Constitutional Limitations (8th ed), p 143:
“A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. ‘For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.’ (Cooley’s Const Lim 81.)”
Chief Justice Cooley also stated for this Court:
[I]n seeking for its real meaning!,] we must take into consideration the times and circumstances under which the State Constitution was formed — the general spirit of the times and the prevailing sentiments among the people. Every constitution has a history of its own which is likely to be more or less peculiar; and unless interpreted in the light of this history, is liable to be made to express purposes which were never within the minds of the people in agreeing to it. This the court must keep in mind when called upon to interpret it; for their duty is to enforce the law which the people have made, and not some other law which the words of the constitution may possibly be made to express. [.People v Harding, 53 Mich 481, 485; 19 NW 155 (1884).]
So, the question is whether the great mass of the people would have meant the following language to convey an exception for state mandates that are also federal mandates — or whether such an exception is a dark and abstruse meaning:
The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency or units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18. [Const 1963, art 9, § 29.]
There is certainly nothing in the language to suggest to the reader that there is an exception for federal mandates.
Nothing in § 29 relieves a local unit of government of its state-mandated duty to provide an activity, here special education, if federal law creates a similar obligation. The state statutes requiring special education, MCL 380.1701 et seq.; MSA 15.41701 et seq. do not refer to, and are not dependent on, the corresponding federal law. If the federal government rescinded the idea, Michigan school districts would still have an obligation to provide special education under state law. These services are required independently by state law.
There are, moreover, three suggestions in the language of § 29 and other provisions of the Headlee Amendment that the voters did not intend an exception for federal mandates: (1) § 29 itself contains one exception to its coverage, costs pursuant to art 6, § 18 (on judicial salaries); (2) the revenue and tax limit on state government in § 26 is subject to three listed exclusions, “federal aid,” “principal and interest on bonds,” and “loans to school districts”; and (3) the definition of total state revenues in § 33 is “all general and special revenues, excluding federal aid . It seems very unlikely that the voters would have thought that § 29 implied such a huge exception as one for federal mandates when the section specified only one very trivial exception (judicial salaries). It is even more unlikely that the voters would have thought the role of the federal government too obvious to mention in § 29, when the amendment mentions that very topic in §§ 26 and 33.
While defendants urge a federal-mandate exception only for § 29, that argument has further implications that provide insight. The rationale for having a federal-mandate exception would be that the state had no free choice in passing the parallel state mandate. However, there would be no reason not to apply that same rationale (1) on behalf of local governments who might seek to raise taxes without a vote of the people to pay for a federal or state mandate, contrary to the language of § 31, and (2) in favor of the state if it sought to exceed the tax and revenue limits of § 26 because of federal mandates. If there is one thing that is clear from the language of the Headlee Amendment and the historical context in which it was passed, it is that the voters intended to limit taxes. Thus, accepting defendants’ argument here could eventually cause us to prune away the wide branches of the Headlee Amendment, until the taxpayers’ sheltering oak was but a shrub.
Although of lesser import, we think the following three items suggest that a federal-mandate exception can only be found by a “dark or abstruse” reading of § 29.
First, in at least two other states where courts have considered whether special education is a state-mandated activity under constitutional limits that do not have an express federal limitation, the parties did not even think to argue for such an exception. One of these states, Missouri, has a tax-limitation provision modeled directly on our Headlee Amendment. See Rolla 31 School Dist v Missouri, 837 SW2d 1 (Mo, 1992), Fort Zumwalt School Dist v Missouri, 896 SW2d 918 (Mo, 1995), and Worchester v Governor, 416 Mass 751; 625 NE2d 1337 (1994).
Second, defendants did not start arguing in favor of a federal-mandate exception until the hearings before Special Master Deneweth, eight years after the commencement of these proceedings. A meaning “most obvious to the common understanding” would have certainly made its appearance before that. Before that time, defendants had stated to this Court that special education was a state-mandated activity under § 29. Also before that time, the Legislature had begun funding all the “necessary costs” of local and intermediate school district compliance with revisions in the “administrative rules for special education,” effective July 1, 1987. 1987 PA 220, subsection 51(3), MCL 388.1651(3); MSA 15.1919(951)(3).
Third, the drafters’ notes comment on whether there are exceptions to the Headlee requirements for federal mandates. Because the drafters’ intent might have been different than the meaning given by the great mass of the people and the notes were published after passage of the amendment and were not available when the people voted, the notes are not authoritative. Durant, supra, 424 Mich 382, n 12. They are one tool available to the courts. Schmidt, supra, 441 Mich 257, n 24. In particular, the notes are one indication of a contemporaneous reading of the amendment. They state, with regard to § 29:
It was the drafters’ intent to include all necessary state mandated cost increases in this provision, including but not limited to: changes in general law which increase local governmental costs, e.g., increases in the state minimum wage law; changes in the civil and criminal statutes, e.g., mandatory sentencing; federally encouraged changes in state law, e.g., unemployment compensation coverage; collective bargaining or compulsory arbitration mandates, land use regulations, etc. [Emphasis added.]
With regard to § 26, the notes indicate:
Directly or indirectly federally mandated spending increases are not exempted from the provisions of this section. It is the concensus [sic] that any problems arising from such federal requirements would be cured later on by a federal tax limitation amendment.
Both of these suggest the absence from § 29 of any exception for federal mandates.
H STATE MATCH SCHOOL LUNCH PAYMENTS
State law has long authorized local school districts to provide free and full-cost meals to students. 1927 PA 319, part 2, ch 5, § 6; 1929 CL 7424, now MCL 380.1272; MSA 15.41272. Since 1946, the federal government has provided financial aid for the national school lunch program, 42 USC 1751 et seq. Unlike the idea, the various permutations of the National School Lunch Act have not required that states, as a condition for receipt of federal funds, require that all local school districts participate in the federal program. It was not until 1977 PA 43, MCL 380.1272a through 380.1272d; MSA 15.41272(1) through 15.41272(4), that the Michigan Legislature mandated that all K-12 school districts in Michigan operate a school lunch program providing free and reduced price meals and meeting the nutritional standards of 42 USC 1758 beginning October 1, 1978. Under MCL 380.1272d; MSA 15.41272(4), the state committed itself to pay each school district up to five cents for each free meal served and up to two cents for each reduced price meal served. Defendants refer to this as the “state supplemental payment.”
Defendants admit that the school lunch program is mandated by state law within the meaning of Const 1963, art 9, § 29, and they admit that they must continue the proportionate support of the state supplemental payments. They contend, however, that the state’s obligation to maintain funding under art 9, § 29 does not extend to what is called “the state match payment.” This payment can be traced back to § 7 of the National School Lunch Act, 42 USC 1756, which conditions federal grants to a state on that state supporting the program with a match equal to at least thirty percent of the prior year’s federal grant to that state.
Defendants argue that the school districts voluntarily participate in the federal school lunch program, in the sense that they do not have to apply for and receive federal funds. They receive the state match payment only because they choose to accept federal funds. Defendants note that the amount of the state match payment is fixed and required by federal law and not subject to state control. Defendants argue that federal programs are not required by state law and are not activities or services within the meaning of Const 1963, art 9, § 29, citing Schmidt, supra, 441 Mich 262. They argue that, implicit in the requirement of art 9, § 29 that the state maintain the “state financed proportion” is the assumption that the state chose to make the payment to the local unit and had control over the amount and manner of distribution.
We reject defendants’ arguments. We have already concluded that there is no exception in art 9, § 29 for federal mandates, as long as the activity or service is mandated by state law. Even if there were such an exception, we would not find a federal mandate here, because the National School Lunch Act does not require that all local school districts in a state participate in the program in order for the state and participating districts to receive federal aid. Indeed, defendants do not contend that the National School Lunch Act constitutes a federal mandate.
Const 1963, art 9, § 29 provides, in pertinent part:
The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law ....
In applying the provision to the school lunch program, there are two questions. First, is school lunch an activity or service mandated by state law? Defendants admit it is. MCL 380.1272a; MSA 15.41272(1). Second, is the state match payment part of the state-financed proportion of necessary costs? It is obvious that it is. Defendants make no argument that plaintiff school districts have not used the state match pay- merits to help meet the necessary costs of the school lunch program.
The defendants are really asking us to create an exception to art 9, § 29 for instances where the state did not “choose to make the payment to the local unit in the first instance and [does not have] the ability to control the amount and manner of distribution of the payment in subsequent years.” This argument fails for two reasons.
First and most important, no such exception is apparent in art 9, § 29. The language focuses on one act of state decision making: the decision of the state to mandate an activity. In this case, the state chose to make the former option of local districts to provide a school lunch program into a mandate that, by coincidence, took effect only thirty-eight days before the election at which the people adopted the Headlee Amendment. The state could have, and still can, return to the local districts the option to participate.
Second, once the people adopted Headlee, the state lost direct control over the amount of all Headleerequired aid to local units of government. The state lost its freedom to reduce aid below the base-year proportion. This was the clear intent of art 9, §§ 29 and 30. Section 29 requires that the state maintain its proportionate financing for the necessary costs of a state-mandated activity. If these criteria are met, it does not matter that a portion of the base-year aid was designed to maximize the benefits of a local district’s voluntary choice to receive federal aid. The “state match” payment was part of “the state financed proportion of the necessary costs” of the state-mandated lunch program in 1978-79.
Defendants argue that the state match payment has made well in excess of $100,000,000 a year in federal funds available to local school districts without any increase in costs to the local districts. Defendants argue that treating the state’s cost in obtaining this benefit turns art 9, § 29 on its head and is irrational. We think that defendants are confusing the merits of the state match program with the requirements of art 9, § 29. Nothing in the constitutional provision addresses the merits of the state-mandated programs. The amendment leaves to the state the ability to adopt or continue those state mandates that the state deems meritorious, on condition that the state bear the necessary costs of new programs and maintain its support of continuing programs.
m. EXECUTIVE ORDER REDUCTIONS
Defendants argue that state payments required by art 9, § 29 are subject to reduction under art 5, § 20, which provides:
No appropriation shall be a mandate to spend. The governor, with the approval of the appropriating committees of the house and senate, shall reduce expenditures authorized by appropriations whenever it appears that actual revenues for a fiscal period will fall below the revenue estimates on which appropriations for that period were based. Reductions in expenditures shall be made in accordance with procedures prescribed by law. The governor may not reduce expenditures of the legislative and judicial branches or from funds constitutionally dedicated for specific purposes. [Emphasis supplied.]
Plaintiffs argue that art 9, § 29 moneys are “funds constitutionally dedicated for specific purposes” within the meaning of the language emphasized above. Defendants argue that the passage refers to funds specially earmarked by the constitution, such as the one percent of the payroll of the classified service that art 11, § 5 requires be appropriated for use by the Civil Service Commission and the fuel taxes that art 9, § 9 requires be used for various transportation purposes.
We agree with plaintiffs. Art 5, § 20 does not use “funds” in a technical sense. The two constitutional provisions cited by defendants as creating protected funds do not use the word “fund.” Art 9, § 9 refers to certain tax revenues; art 11, § 5 requires appropriation of a “sum.” All that is required by art 5, § 20 is that the funds be “constitutionally dedicated for specific purposes.” The funding required by art 9, § 29 is dedicated for the purpose of fulfilling the state’s obligation to support state-mandated activities and services.
Defendants imply that the state’s ability to deal with impending deficits will be impeded by this aspect of today’s decision and that it will force the state to impose educational cuts most heavily on the districts that are least able to afford it, because those are the districts who receive unrestricted aid not protected by art 9, § 29. The latter portion of this is outdated in light of the substantial reform in school financing made by adoption of Proposal A at the general election on March 15, 1994, amending art 9, §§ 3, 5, 8, and 11. The rest of the argument is answered by the fact that the state would be free to reduce or eliminate state mandates and, thus, reduce its obligations under art 9, § 29.
IV. ATTORNEY fees
Defendant argues that the Court of Appeals erred when it concluded that attorney fees are included in “costs” recoverable by a successful taxpayer in a suit under art 9, § 32:
Any taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article and, if the suit is sustained, shall receive from the applicable unit of government his costs incurred in maintaining such suit.
We have recently addressed this question in Macomb Co Taxpayers Ass’n v L'Anse Creuse Public Schools, 455 Mich 1; 564 NW2d 457 (1997). For the reasons stated there, we affirm the award of attorney fees.
We note that plaintiffs submitted their claim for costs before the Special Master. Defendants disputed whether all the costs were incurred regarding matters on which plaintiffs’ suit was “sustained.” The Special Master issued a decision with regard to all cost issues up to the date of his decision, June 16, 1995. The decision gave substantial relief to defendants on the issue raised. We further note that defendants did not appeal that recommendation in the Court of Appeals or here. We regard that amount as finally resolved. Costs incurred after June 16, 1995, remain open.
V. REMEDY
This is the first case of underfunding under art 9, § 29 to come to judgment. After oral argument, we directed the parties to brief questions related to the remedy. Having received and considered the briefs of the parties and amici curiae, we are convinced that the correct remedy is not full compensatory damages for underfunding for the plaintiff school districts, the basis of the Court of Appeals judgment. While we anticipate that monetary relief typically will not be necessary in future § 29 cases, defendants’ prolonged recalcitrance in this case necessitates a substantial recovery aimed primarily at providing a remedy for the harm caused by underfunding.
A
We begin, as always, with the words of the constitution, in this case, art 9, § 32:
Any taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article and, if the suit is sustained, shall receive from the applicable unit of government his costs incurred in maintaining such suit.
The question is what did the great mass of the people intend in directing the Court of Appeals “to enforce” § 29. While we must answer this question from the perspective of the voters in 1978, we would be foolish if we did not keep in mind all the questions that this Court and the Court of Appeals have had to address and resolve in reaching the point of judgment. See “History of Proceedings” above and the prior decisions in this case. For instance, it would be a fiction to say that the great mass of the people anticipated use of special masters to enable the Court of Appeals to act as a trial court or that the people had in mind the Schmidt formula as the way to alleviate idiosyncratic differences in state funding of the same activity in different school districts. We conclude that the people’s directive “to enforce” § 29 was intended as a general directive, giving the Court the duty and authority to enforce § 29 in the way that would most effectuate the balances struck by the people in the Headlee Amendment. We have followed that directive in the past and now must apply it to the remedy in this case.
Art 9, § 32 authorizes taxpayers to file suit in the Court of Appeals to enforce the provisions of § 29. As arduous as the proceedings in this case have been, we have succeeded in deciding many points of law that will guide future decisions. Thus, there is every reason to hope that future cases will be much more straightforward. We anticipate that taxpayer cases filed in the Court of Appeals will proceed to rapid decision on the issue whether the state has an obliga tion under art 9, § 29 to fund an activity or service. The Court of Appeals would give declaratory judgment on the obligation of the state. If there was such an obligation, we anticipate that the state would either comply with that obligation no later than the next ensuing fiscal year, unless it could obtain a stay from this Court, or remove the mandate. In such an instance, we anticipate that the obligation of the Court to enforce § 29 would not include any grant of money damages. This is not such a case. We turn to the proper remedy in this case.
B
Declaratory relief coupled with an award of damages is appropriate in this case as a result of the prolonged “recalcitrance” of the defendants, and the damage award can, on this basis, be limited to the years 1991-1994. Any other remedy, particularly one that would grant declaratory relief alone, would authorize the state to violate constitutional mandates with little or no consequence. The intent of the people in enacting art 9, § 32 of the Michigan Constitu tion was not to enact a constitutional provision that could not be effectively enforced.
The enactment of art 9, § 29 evidenced an intent on the part of the electorate to limit the Legislature’s ability to shift funding obligations for state-mandated services from the state to local government, after state revenues were limited by the Headlee Amendment, in an effort to save the state money it would otherwise have been obligated to expend. Durant, supra, 424 Mich 379. One of several implementing acts under the general provision of art 9, § 25, § 29 of the Headlee Amendment provides:
The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by-state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18.
Although a remedy was not established under the express provisions of § 29, the need for a remedy for harm occasioned by a violation of § 29 was indeed considered and approved by the public by way of art 9, § 32. In accordance with that provision:
Any taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article and, if the suit is sustained, shall receive from the applicable unit of government his costs incurred in maintaining such suit.
By authorizing the Court of Appeals to “enforce” the provisions of §§ 25 through 31, the people meant to authorize monetary damages when damages would be necessary to enforce compliance. The common understanding of the term “enforce” is “[t]o compel observance of or obedience to . . . [to] reinforce; to make strong.” The American Heritage Dictionary: Second College Edition (1982). A constitution is made of the people, by the people, and for the people; “ ‘[t]he interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it.’ ” Traverse City School Dist, supra at 405. The term “enforce” would be interpreted by the mass of people to require a remedy that would “compel observance of or obedience to” the constitutional mandate. Simply put, if declaratory relief is not sufficient to compel obedience to the constitutional mandate, and it was not in the present case, then the electorate has authorized that additional relief be granted.
Even if one departs from the common understanding of the people and examines declaratory judgment as practiced in the courts, the result is the same: declaratory judgment actions can result in monetary relief. Actions for declaratory relief are intended to minimize avoidable losses and the unnecessary accrual of damages. MCR 2.605 authorizes declaratory relief where other relief is also available. “The existence of another adequate remedy does not preclude a judgment for declaratory relief in an appropriate case.” MCR 2.605(C). MCR 2.605(F) provides that “[f]urther necessary or proper relief based on a declaratory judgment may be granted, after reasonable notice and hearing, against a party whose rights have been determined by the declaratory judgment.” The choice to use declaratory relief is discretionary, yet declaratory relief is cumulative relief, not intended to be exclusive or extraordinary. The Michigan Court Rules contemplate that, after entry of a judgment for declaratory relief, additional relief may be granted if necessary or proper, against any party whose rights were determined by the declaratory judgment. As provided by MCR 2.605(F), reasonable notice and a hearing are necessary for the granting of additional relief. Parties to this case have had both reasonable notice and a hearing on the issue of rem edy, and there is no reason to limit the remedy to declaratory relief alone. Given the facts of this case, the people who enacted this amendment would conclude that to require only declaratory relief would be to negate, rather than effectuate, the protection intended by § 29.
Having concluded that damages are not precluded where declaratory relief is used, we farther conclude that the instant case is one in which damages are “necessary or proper.” The prolonged “recalcitrance” of the state in shirking its obligations to fund state-mandated services clearly cannot be cured by declaratory relief alone. Had it been possible to resolve this issue by declaratory judgment, the state would have funded the services in question after the 1990 Court of Appeals decision, while at the same time seeking a declaratory judgment from this Court on its continuing obligation under the Headlee Amendment to fund those services. Having chosen instead to ignore the Court of Appeals ruling, we see no choice but to award damages against the state.
To deny monetary relief here might provide incentive for protracted litigation in the future. Here, defendants did not interject the issue on which most of the damages turned (special education, issue i) until eight years into the litigation. The argument, when raised, contradicted prior statements by defendants (that special education was a state mandated activity under Headlee). The argument was not based on the language of Headlee. When the Court of Appeals resolved that issue against defendants, defendants declined to honor the Court of Appeals decision for almost seven years.
c
We now turn to the question of who should receive the judgment. The Headlee Amendment is a taxpayers’ amendment. Art 9, § 29 was adopted to allow local taxpayers freedom from constant pressure to approve increases in local property taxes to pay for activities forced on local units of government by the state government and the benefit of local government discretion on how to spend local tax revenues. Instead of having that freedom, plaintiff taxpayers had to dedicate literally hundreds of millions of dol lars of local tax revenues from 1979-80, the first year Headlee was in effect, until 1994-95. Then, in the aftermath of the people’s approval of Proposal A, the Legislature overhauled the method of financing schools to substantially reduce dependence on local taxation. This shift substantially reduced the pressure on local taxpayers to make up for state underfunding of mandated activities.
To deny taxpayers relief would be to deny the reality that they have suffered real dollar losses throughout this protracted litigation. It would also ignore that, where the Headlee Amendment anticipated specific compliance problems, it provides specific relief for the taxpayers.
While the Headlee Amendment is a taxpayers’ amendment, the requirement of § 29 adopted by the people does not directly mention the taxpayers. It directly protects the units of local government. It serves the overall purpose of the people by protecting units of local government from actions of the state government in foisting underfunded and unfunded mandates on local government, thus frustrating local discretion over local tax revenues. In this case, the underfunding certainly affected the level of regular educational services that the locally elected and, until 1994, mostly locally funded boards of education could provide to all current students and many who have graduated or dropped out over the last almost two decades. Local boards have been faced with a dizzying variety of choices on how to deal with underfunding and rising costs. Many, perhaps most, districts have had larger class sizes. Others have dropped programs such as elementary music. Perhaps none have had as much access to computer equipment as they would have liked. Many may have had no money for targeting and helping potential dropouts. The potential list is endless. While there is no way at this remove to compute with exactitude the number of sacrifices suffered by the general education population, we are sure that the sacrifice has been significant and its effect continuing. These students, no less than taxpayers have suffered the adverse consequence of defendants’ underfunding.
While we conclude that plaintiffs must be given some relief in this case, we also conclude that affirming the full judgment of the Court of Appeals would be inconsistent with the balances struck by the Headlee Amendment and by Proposal A. Any judgment would be paid out of state funds, collected from state taxpayers. The taxpayers of the eighty-four districts represented by plaintiff taxpayers are, in turn, state taxpayers. State taxpayers were also to be protected by provisions of the Headlee Amendment, albeit not § 29. There is a point at which granting more relief to the local taxpayers creates more potential for harm to the state taxpayers than it would provide additional benefit to the local taxpayers. Our aim is to give the local taxpayers and students meaningful redress (to “enforce” § 29) without undermining the current security enjoyed by the state taxpayers.
D
We affirm that portion of the Court of Appeals judgment that awards money damages, without interest, to plaintiff school districts for the full amount of underfunding to each district during 1991-92, 1992-93, and 1993-94. We conclude that any award of damages should be distributed to the plaintiff school districts and apportioned to taxpayers within each district, if appropriate. Unlike the dissenters, who express concern over awarding monetary relief to taxpayers, we are not concerned that taxpayers are not appropriate parties to receive an award. Headlee is fundamentally a taxpayers’ amendment, enacted for the primary purpose of relieving the electorate from overwhelming and overreaching taxation. Who better to receive a monetary award than those who the amendment was enacted to protect?
Although we have no concern regarding the correctness of awarding damages to the taxpayer, we stop short of ordering any particular method of distribution because each of the affected districts and its respective taxpayers have sustained discrete harms that are beyond the capability of the Court to evaluate. Instead, we award damages to the plaintiff school districts with the expectation that the democratic process will inform and shape distribution of the award. In so doing, each board of education will exercise its discretion to determine and tailor its award in a manner that best fits the needs of its constituents. Appropriate remedies include, but are not limited to, distributing the award to taxpayers in relation to the amount of increased taxes they paid during 1991-92, 1992-93, and 1993-94 as a result of the increase in millage over base year 1978-79, due to underfunding, distributing the award to all property-owning taxpayers, to all local taxpayers, or use of the award by the district for other public purposes. We have full confidence that the checks and balances of democratic decision making in each local unit of government will effectively assess the harm to be redressed and the method of addressing it.
E
Justice Brickley makes a number of thoughtful points in his dissent from our decision to award money damages in this case which deserve a response.
The dissent accurately notes that § 29 does not specify the remedy for a violation of its requirements. Rather, § 32 provides the remedy that the courts “enforce” §§ 25 through 31. It states that the ordinary person would read “to enforce” in the context of § 29 as conferring authority on the court to order the state to fund the activity in the future or to enjoin the state from requiring the local unit of government to provide the service.
We think this analysis unnecessarily focuses the question of the scope of enforcement under § 32 on problems which might arise under § 29. The ordinary person reading § 32 would view a broader range of measures appropriate to the wide range of possible violations of §§ 25 through 31. A good example is found in the suit involved in TACT v Wayne Co, 450 Mich 119; 537 NW2d 596 (1995). There, the defendant increased its real estate transfer tax without a vote of the people. Plaintiff paid the increased tax when selling property and later filed a class action for declaratory and injunctive relief as well as refunds. The question before this Court concerned the application of the one year period of limitation, MCL 600.308a; MSA 27A.308(1), not the propriety of a refund. Nonetheless, the obvious merit of that remedy led us to conclude, “Taxpayers may sue for a refund within one year of the date the tax was assessed.” 450 Mich 125.
The point is that § 32 does not mention a refund for taxes unconstitutionally collected under § 31. Yet the remedy of a refund is so obvious that the ordinary person would say that, without such a remedy, the court would not be enforcing § 31. We continue to be of the belief that the command of § 32 is general and empowering and contemplates a money judgment where necessary.
The dissent also cites the Missouri case, Fort Zumwalt, as support and we do not dispute that there is some support for the partial dissent there. We note, however, that the dissent significantly disagrees with Fort Zumwalt. The partial dissent is willing to issue an order to the state to fund the activity in question. The Missouri court was only willing to free the local unit of government from the duty to obey the state mandate. While this might be effective relief for new mandates, it would hardly be practicable in the case of a continuing mandate such as special education where the school districts are under contract with thousands of staff, have massive capital investments and have established portions of the student body relying on the continuity of services.
In replying to our opinion, the dissent indicates that the people ratifying the Headlee Amendment would have anticipated situations, under § 29, when the state might pass a new mandate without funding or reduce funding for an existing mandate and that the people would have further anticipated an expeditious order to end the violation. Again, we have no disagreement with the basic point. For that reason, we do not foresee a likely need for money relief for cases filed in the future. However, what happened here was not one of the situations which the people may have anticipated. Here, the state interposed a new legal argument eight years into the litigation and refused to abide by rapid rejections of that argument by the Special Master and Court of Appeals. The question is not so much what violations the people might have anticipated, but whether the people intended the court to provide a remedy when things did not go as anticipated. We think the people’s use of the emphatic word “enforce” shows their intent that the courts provide effective remedies for unanticipated as well as anticipated problems. Our remedy here, rather than being idiosyncratic, is tailored to fit what we hope is a very unusual violation.
The dissent observes, accurately, that the remedy in this case has been fashioned, in part, because the state has been derelict for so long in its duty. The history of defendants’ conduct justifies the conclusion that the state has been derelict too long. Not only did defendants argue to this Court in 1985 that we ought to hold that § 29 applied to specific activities like special education (in order to escape a larger burden for education as a whole) but, having received the favorable response on the larger burden, they reversed their position on special education. Even when defendants got a ruling from the Court of Appeals on the special education issue fairly promptly after defendants first raised it, defendants did not comply with that ruling, insisting on a ruling by this Court. While the pendency of appeals and further trial proceedings to establish the amount of injury gave defendants an opportunity to take the risk that we might eventually take the case and reverse the Court of Appeals, the cost of that risk and the cost of noncompliance should be borne by defendants. Defendants’ ignoring the existence of the Court of Appeals ruling through the last seven years while technically not contemptuous, surely falls short of the respect we should demand for that Court.
The dissent argues that the appropriate response is political, not judicial. The suggestion that the appropriate response is political ignores both the fact that the state’s dereliction has persisted through three administrations and the fact that the people have directly ordered the courts to enforce § 29.
The dissent notes, with some eloquence, the tension that flows from the fact that local taxpayers are also state taxpayers. It is this tension that has caused us to conclude that we should not affirm the entire judgment of the Court of Appeals that would be approaching $800,000,000.00. Instead, we limit the award to an amount which should be slightly over a quarter of that. What the dissent fails to acknowledge is that tension is created by the opposition of two forces. In trying to accommodate the interests of state taxpayers, it forfeits completely the interests of the local taxpayers and their local government, as if it were advising a holder of a mutual insurance policy not to file a claim because it would reduce the worth of the insured’s interest in the company. Given the amounts involved, our judgment is sufficient to give meaningful recovery to plaintiffs without adding costs for individual state taxpayers.
The dissent argues that the Court may do no more than interpret the law and we “must presume that the other branches of government, once informed of their constitutional duties, will execute them to the letter and the spirit of the law.” We reply that § 32 requires that we “enforce” — not just interpret — § 29. We note that defendants were fully aware of their constitutional duties in 1985 when they advised us that special education is a mandated service within the meaning of § 29.
The dissent minimizes the continuing effect that underfunding has on the continuing operation of plaintiff school districts, while it acknowledges that regular education programs have probably been reduced to divert local resources to cover the state underfunding. All students in plaintiff school dis tricts have, for their entire careers as students, been potentially subject to innumerable consequences of local budgetary constraints, such as: larger class sizes, decreased access to librarians, loss of enrichment programs, use of outdated books and archaic physical plants and delays in purchase of new equipment, for instance computers. While we can no more quantify the dollar value of these losses than we can give an objective figure to recompense the loss of an arm, we regard this harm as real and deserving of relief.
The dissent argues, “Although taxpayers may have had their millage increased at a local level, all Michigan taxpayers benefited from lower state taxes made possible, in part, by the state’s declining responsibility for special education costs.” Thus, “taxpayers did not necessarily suffer ‘real dollar losses.’ ” This argument is no more than a judicial disagreement with the electorate over the validity of the policy behind § 29. In § 29, the people have said that shifting of the tax burden to local taxpayers is a matter of constitutional dimension; it is banned; and, through § 32, the ban must be enforced. The people having spoken through their constitution, the policy debate is no longer open.
Lastly, the dissent indicates that “the local taxpayer would not want this kind of relief.” We believe the taxpayers would appreciate relief both in the form of a direct benefit to plaintiffs and, as the electorate which adopted Headlee, with the courts’ willingness to abide by the direction to enforce § 29.
F
We are acutely conscious of the limitations of judicial competence in developing workable standards to regulate government conduct. We acknowledge also that the Legislature, no less than this Court, interprets the document that binds both institutions and is obligated and entitled to make its own good faith judgments regarding the implications of the Headlee Amendment when enacting policy as the people’s representatives. However, for the reasons stated above, we find the only viable remedy to be one that awards declaratory relief coupled with monetary damages for the years 1991-1994. In this way, “the great mass of people” will be better assured that the Court effectively “enforced” the provisions of art 9, § 29.
213 Mich App 500 affirmed except as to remedy; remedy affirmed in part.
Mallett, C.J., and Cavanagh, Boyle, and Kelly, JJ., concurred.
The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18. [Emphasis supplied.]
Proposal e also amended art 9, § 6. That change is not relevant to the issues raised in this case.
Compare these limits with the fifteen-mill limit of art 9, § 6, the first limit on the taxing power of the state, originally added to the 1908 Constitution in 1932. See Pontiac School Dist v Pontiac, 262 Mich 338, 344-345; 247 NW 474 (1933).
This Court has explained:
Having placed a limit on state spending, it was necessary to keep the state from creating loopholes either by shifting more programs to units of local government without the funds to carry them out, or by reducing the state’s proportion of spending for “required” programs in effect at the time the Headlee Amendment was ratified. [Livingston Co v Dep’t of Management & Budget, 430 Mich 635, 644; 425 NW2d 65 (1988).]
See n 1.
The proportion of total state spending paid to ail units of Local Government, taken as a group, shall not be reduced below that proportion in effect in fiscal year 1978-79.
Any taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article and, if the suit is sustained, shall receive from the applicable unit of government his costs incurred in maintaining such suit.
The Headlee implementation act was passed under art 9, § 34, “The Legislature shall implement the provisions of Sections 25 through 33, inclusive, of this Article.” Although the Legislature passed the act, it failed to follow through and provide the necessary funding. The act provided for an administrative remedy for local units of government, but not taxpayers. MCL 21.240; MSA 5.3194(610).
There is no distinction in this case between “activity” and “service” under § 29. For convenience, we will refer only to “activity,” without commenting on whether there is any specific distinction between the two terms or, if so, whether the programs discussed in this decision would be activities or services in light of any distinction.
In other substantive matters, the Court ruled that the state proportion of the necessary costs should be based on state “categorical” aid dedicated for use in each specific program and that the state would not receive any credit for “unrestricted” aid. The Court also defined the term “necessary costs.”
The Court denied rehearing on January 14, 1991.
The order of the Court of Appeals, and the decision of this Court also addressed an issue relating to financing the employer’s share of social security taxes, discussed below.
Each visit of these combined cases to this Court has involved a basic question regarding the proper remedy not addressed in art 9, § 29, but one necessary to resolve before giving judicial relief.
Judge Deneweth, who served so well as the original Special Master, had passed away.
The arguments and analysis do not differentiate between special education and special education transportation. Unless indicated otherwise, we will use “special education” to refer to both.
Specifically, special education was originally mandated by 1971 PA 198 for school year 1973-74 and thereafter. The act is currently codified in article 3 of the Revised School Code, MCL 380.1701 et seq.-, MSA 15.41701 et seq.
MCL 380.1751(1); MSA 15.41751(1) now provides, in pertinent part:
The board of a local school district shall provide special education programs and services designed to develop the maximum potential of each handicapped person in its district on record under section 1711 for whom an appropriate educational or training program can be provided in accordance with the intermediate school district special education plan ....
The details are explained in Schmidt, 441 Mich 246-247.
This is the focus of the first reason in the passage of Schmidt. See the dissent on this point by Chief Justice Cavanagh, 441 Mich 281.
Defendants also cite, by analogy, Sacramento, supra, applied to special education in Hayes v Comm on State Mandates, 11 Cal App 4th 1564; 15 Cal Rptr 2d 547 (1992). Sacramento construed Cal Const, art 13B, subsection 9(b) which held that the state had to reimburse local governments for new or increased state-required programs except for “[appropriations required to comply with mandates of the courts or the federal government which, without discretion, require an expenditure for additional services or which unavoidably make the provision of existing services more costly.” There is no such express exception in Const 1963, art 9, § 29. Thus, Sacramento does not provide support for defendants.
Indeed, the Sacramento court, referring to the interrelation between Cal Const, art 13B and art 13A, a tax-limit provision which was passed a year before art 13B and which contains no express exception for federally mandated programs, stated:
Articles XM A and Xm B work in tandem, together restricting California governments’ power both to levy and to spend for public purposes. Moreover to the extent “federally mandated” costs are exempt from prior statutory limits on local taxation . . . , article Xm A eliminates the exemption insofar as it would allow levies in excess of the constitutional ceiling. [50 Cal 3d 59.]
Thus, the California Court was reluctant to read an exception for federal mandates into the California Constitution where the voters did not expressly approve such an exception. We agree with that approach.
Section 26 establishes “a limit on the total amount of taxes which may be imposed by the legislature in any fiscal year . . . .” Basically, taxes must not be such that total state revenues grow faster than personal income in Michigan. Section 33 defines “total state revenues.” Each section mentions and excludes federal aid from total state revenues.
Recall that without a state mandate, § 29 does not come into play.
While we mention this delay, we are not finding waiver.
Subsection (1) of MCL 380.1272a; MSA 15.41272(1) states:
The board of a K to 12 school district shall, and the board of another school district may, establish and operate a program under which lunch is made available to all full-time pupils enrolled and in regular daily attendance at each public school of the school district.
The programs must meet “[n]utritional standards prescribed by the United States department of agriculture pursuant to section 9 of the national school lunch act, 42 USC 1758 . . . .” MCL 380.1272b(a); MSA 15.41272(2)(a).
The act also required that some K-12 school districts provide a hot breakfast program. We are not concerned with any distinction between lunch and breakfast.
The state act contains an exception for years in which the federal or state subsidy falls below a certain level. MCL 380.1272c; MSA 15.41272(3).
The parties stipulated that, using only the state supplemental payment, the state-financed proportion of the necessary costs of the school lunch program for base year 1978-79 was 1.6727 percent. Using all state aid, the proportion is 6.0127 percent.
The state statute provides that the state supplemental payment shall be “credited to the state’s matching share” under the federal program. MCL 380.1272d(d); MSA 15.41272(4)®.
In the special education issue, defendants argued that art 9, § 29 provides an exception for programs mandated by federal law. Here, defendants broaden that to argue that art 9, § 29 provides an exception for federal programs in general. As long as the activity or service is mandated by state law, we see even less reason to create an exception to Headlee for all federal programs than for federal mandates.
It appears that this issue is moot, although neither party raises that point. The executive order reductions originally at issue occurred in school years 1981-82 and 1983-84. Funding for those years is no longer at issue in this case. See Durant, supra, 186 Mich App 99-100. We exercise our discretion to address the issue because it has been fully briefed and is capable of arising again in the future in situations in which delay in resolving the issue would adversely affect the Governor’s compliance with the duty specified by art 5, § 20.
Even if we were to interpret art 5, § 20 in the way that defendants urge, we would only be creating a potential conflict between art 5, § 20, which would allow reduced funding of state mandates, and art 9, § 29, which specifies a minimum funding level. In such a case, art 9, § 29 would prevail because it was passed later in time. Kunzig v Liquor Control Comm, 327 Mich 474, 480; 42 NW2d 247 (1950).
This grant of authority in the specific authorization of suits to enforce the provisions of art 9, §§ 25 through 31 waives sovereign immunity.
The Legislature has authorized taxpayers to file Headlee cases in circuit courts, MCL 600.308a; MSA 27A.308(1). It has also created, but never funded, a forum for local units of government to file claims for underfunding, the Local Government Claims Review Board (lgcrb). MCL 21.240; MSA 5.3194(610). Cases filed in those fora are not before us. In particular, we note that the Legislature circumscribed the power of the lgcrb with the requirement that any award be subject to an appropriation adopted by concurrent resolution of both houses of the Legislature before any administrative claim could be paid. MCL 21.240(4); MSA 5.3194(610)(4).
In 1990, the Court of Appeals first determined that special education, special education transportation, driver’s education, and school lunch and supplemental milk programs were state-mandated activities within art 9, § 29. Durant, supra, 186 Mich App 83. Despite a judicial determination that the services were state-mandated, the state continued to evade its obligation to fund these services after 1990. Thus, damages should begin to accrue in 1991, the first year after the Court of Appeals ruled on the issue of liability in this case. 1994 saw the adoption of Proposal a which authorized an increase in the state sales tax for use in school aid while at the same time limiting the use of local property tax for school purposes. After the adoption of Proposal A, the taxpayer burden to compensate for state underfunding of mandated services was greatly decreased, thus limiting the harm to the taxpayer after this point. Accordingly, the damage award should run only through the year 1994.
Art 9, § 25 summarizes the substantial revenue and tax limitations the Headlee Amendment placed on state and local units of government. Section 25 provides:
Property taxes and other local taxes and state taxation and spending may not be increased above the limitations specified herein without direct voter approval. The state is prohibited from requiring any new or expanded activities by local governments without full state financing, from reducing the proportion of state spending in the form of aid to local governments, or from shifting the tax burden to local government. A provision for emergency conditions is established and the repayment of voter bonded indebtedness is guaranteed. Implementation of this section is specified in Sections 26 through 34, inclusive, of the Article.
See, generally, 10A Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d, § 2751, p 568.
See Wright, Miller & Kane, § 2758, p 620.
See Honigman & Hawkins, Michigan Court Rules Annotated, (1963, 1984 Supp), p 690. MCR 2.605 is comparable to GCR 1963, 521. Like MCR 2.605, GCR 1963, 521 provided that further relief based on a declaratory judgment may be granted when necessary or proper. Because GCR 1963, 521 was adopted long before the Headlee Amendment was passed, and clearly indicated that declaratory relief and an award of damages are both appropriate under the court rules and have been since 1963, it is not unreasonable to award further relief, including damages, in the instant case.
Indeed, the defendants would be in no position to complain over any judgment less than the full amount required by the Court of Appeals because defendants did not seek leave to appeal on the form or amount of the remedy or raise any issue concerning the remedy until this Court raised the matter, sua sponte.
Although we anticipate that monetary relief will be atypical, we do not mean to suggest that damages are only appropriate under art 9, § 32 when a party has failed to observe a judicial decree. What we are suggesting is that declaratory relief alone may be the appropriate method of “enforcing” § 29, particularly in cases of new mandates where the lack of entrenched obligations gives units of local government fairly free choice not to commence an unfunded state mandate. However, because of the state’s failure to observe the 1990 Court of Appeals determination, additional remedy became a necessary and proper means of enforcing the constitutional mandate.
Before that time, defendants had argued in a brief to this Court that special education was a state-mandated activity under art 9, § 29. Also before raising the special education issue, the Legislature began funding one hundred percent of the “necessary costs” of local and intermediate school district compliance with revisions in the “administrative rules for special education” that became effective July 1, 1987. 1987 PA 220, subsection 51(3), MCL 388.1651(3); MSA 15.1919(951)(3). These actions refute defendants’ argument that any monetary relief should be prospective because defendants could not reasonably have anticipated that the Court of Appeals and this Court would hold that § 29 applies to special education.
Without interest, the judgment of the Court of Appeals, through 1993-94 was approximately $350 million. We do not have reasonably accurate estimates for the three years since then.
Proposal a was adopted at a statewide election on March 15, 1994. It authorized an increase in the state sales and use tax for use in school aid, limited use of local property taxes for school purposes, and authorized other changes in school finance.
Defendants indicate that the state share of the costs of K-12 education increased from thirty-five percent to eighty percent and the local share fell from sixty-five percent to twenty percent.
See art 9, § 26, providing for a pro-rata tax refund if the state collects excessive revenue, and § 31, providing for a decrease in the millage rate if a local taxing authority broadens the base of a tax or increases the assessed value of property faster than allowed by that section.
This action is not the type of civil action at law covered by MCL 600.6013; MSA 27A.6013, which provides for pre- and postjudgment interest. Money judgments against the state in the Court of Claims are subject to posfjudgment interest, MCL 600.6455; MSA 27A.6455, but this case was not, and under art 9, § 32, could not be filed in the Court of Claims. Given that the voters have left it to the Court to develop the proper remedy, we believe that this case is closer to an equitable action than an action at law. In equitable actions, an award of interest is discretionary. Cyranoski v Keenan, 363 Mich 288, 294-295; 109 NW2d 815 (1961). The balance we have struck between the rights of the local taxpayers and the interests of the state taxpayers would be upset by an award of interest preceding the date of this opinion.
We begin this period with the first year after the Court of Appeals ruled on the issues of liability in this case. Before that point, defendants had not had a ruling from the Court. We end it with the change in the method of financing public education. After the change, local taxpayers are much more likely not to have suffered harm.
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Per Curiam.
Plaintiffs William and Adele Farmer brought this negligence action against, among others, Eldon C. Christensen and the Michigan Department of Transportation (mdot) for injuries sustained in a traffic accident that ensued after a gravel hopper loaded on a flatbed semitrailer-truck driven by Chistensen struck a highway overpass. The force of the impact knocked the gravel hopper off the semitrailer-truck and onto the highway where plaintiffs’ vehicle struck it. The height of the gravel hopper at the point of impact was over the statutorily allowed maximum. The moot brought a cross-claim against Christensen for indemnification of the $25,000 that the MDOT paid to plaintiffs as a result of a consent judgment in the tort action. Cross-plaintiff mdot now appeals as of right from the trial court’s order granting summary disposition to cross-defendant Christensen on the M dot’s indemnification claim. We reverse and remand.
i
“This Court reviews de novo decisions regarding motions for summary disposition to determine if the moving party was entitled to judgment as a matter of law.” North Community Healthcare, Inc v Telford, 219 Mich App 225, 227; 556 NW2d 180 (1996). In this appeal we are required to interpret and apply § 719(1) of this state’s Vehicle Code:
A vehicle unloaded or with load shall not exceed a height of 13 feet 6 inches. The owner of a vehicle that collides with a lawfully established bridge or viaduct is hable for all damage and injury resulting from a collision caused by the height of the vehicle, whether the clearance of the bridge or viaduct is posted or not. [MCL 257.719(1); MSA 9.2419(1).]
The first sentence of § 719(1) establishes the mandatory duty of care, i.e., a vehicle’s height must not exceed 13 feet, 6 inches. For purposes of this appeal, the parties do not dispute that Christensen’s truck breached this duty of care, being at least 13 feet, 10 inches in height, four inches over the statutorily allowed maximum. The overpass was marked with a sign, installed by the mdot, indicating that its clearance height was 14 feet, but the accuracy of this measurement is disputed. Nonetheless, from the evidence, it is clear that Christensen’s truck struck the overpass, causing the gravel hopper to fall onto the highway. Plaintiffs’ vehicle, which was following behind Christensen, then collided with the hopper.
The legal effect of Christensen’s violation of the statutory duty of care, standing alone, would be enough to establish a prima facie case of negligence. Zeni v Anderson, 397 Mich 117, 128-129; 243 NW2d 270 (1976) (penal statute); Klanseck v Anderson Sales & Service, Inc, 426 Mich 78, 87; 393 NW2d 356 (1986) (licensing statute). While it is recognized that such a presumption of negligence may be rebutted with a showing of an adequate excuse or justification under the circumstances, Zeni, supra at 129-136, Christensen has not presented evidence of excuse or justification. Christensen might also escape liability under the statute if, by applying the “statutory purpose doctrine,” id. at 138, n 22, it were judicially determined that the statute was inapplicable. Such a finding would be inappropriate on these facts because (1) the statute is intended to protect against the result of the violation, (2) plaintiffs are within the class intended to be protected by the statute, and (3) the evidence would support a finding that the violation was a proximate contributing cause of plaintiffs’ injuries. Klanseck, supra. Thus, had there been a trial in this matter, the determination of Christensen’s negligence should have been conclusively removed from the jury. Id.
Section 719(1), however, does not merely create a presumption of negligence, but rather in its second sentence allows for a finding of absolute liability, i.e., liability “for all damage and injury resulting from a collision caused by the height of the vehicle, whether the clearance of the bridge or viaduct is posted or not.” The parties dispute the meaning of this statutory language: the MDOT argues that the language means Christensen is absolutely liable for all damage and injury resulting from his truck’s collision with the overpass, while Christensen argues (and the trial court agreed) that his ultimate liability was subject to the principles of comparative fault, joint and several liability, and proximate cause. For several reasons, we find merit in the mdot’s interpretation of the statute.
First, where statutory language is clear and unambiguous, we must honor the legislative intent as clearly indicated in that language. Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 538-539; 565 NW2d 828 (1997). Thus, the phrase in § 719(1), “all damage and injury” — which is susceptible to only one meaning — must be ascribed that plain meaning. Second, while the regulatory scheme of § 719(1) incorporates the need for establishing proximate causation, once established it fixes liability on the violator even where concurrent or intervening acts of negligence precipitate a collision with a bridge or overpass. See 57A Am Jur 2d, Negligence, § 792, p 703. To hold otherwise, and allow Christensen to interpose defenses of comparative fault on the part of plaintiffs or joint and several liability on the part of the MDOT for its alleged negligence in marking the overpass with an inaccurate sign, would undermine the plain language of the absolute liability statute as well as its overriding regulatory purpose, i.e., protect ing bridges and overpasses, and the traveling public, from damage or injury as a result of nonconforming vehicles. See MCL 257.725(4); MSA 9.2425(4) (special-use permit for nonconforming vehicles is required “to protect the safety of the public or to ensure against undue damage to the road”). See also 57B Am Jur 2d, Negligence, § 1174, pp 96-97. Notably, § 719(1) expressly exempts the state from liability regardless of whether it has posted the clearance of the overpass.
This state’s appellate courts have not recently interpreted the effect of an absolute liability statute. However, over a century ago, in Flint & P M R Co v Lull, 28 Mich 510 (1874), our Supreme Court considered the legal effect of a violation of a statute that mandated every railroad company to fence its track and place cattle-guards at all road crossings and further provided that a negligent or wilful violation of the statute would render the violator “liable for all damages” that resulted. Id. at 511. In allowing the plaintiff to recover the value of a cow that was killed by a passing train, despite the defendant’s allegation that the plaintiff had negligently allowed his cow to run free, Justice Cooley explained:
There still remains the question, however, whether the railway company could be held liable if the plaintiff himself was guilty of contributory negligence. Were this a common-law action it is clear that such contributory negligence would be a defense. But this is not a common-law action. It is an action given expressly by a statute, the purpose of which is not merely to compensate the owner of property destroyed for his loss, but to enforce against the railway company an obligation they owe to the public. The statute is a police regulation, adopted as much for the security of passengers as for the protection of property. And the deci sions may almost be said to be uniform that in cases like the present, arising under such statutes, the mere negligence of the plaintiff in the care of his property can constitute no defense. Indeed, if contributory negligence could constitute a defense the purpose of the statute might be in a great measure, if not wholly, defeated, for the mere neglect of the railway company to observe the directions of the statute would render it unsafe for the owner of beasts to suffer them to be at large or even on his own grounds in the vicinity of the road, so that if he did what, but for the neglect of the company, it would be entirely safe and proper for him to do, the very neglect of the company would constitute its protection, since that neglect alone rendered the conduct of the plaintiff negligent. [Id. at 514-515 (citations omitted).]
Lull, of course, was decided long before the Michigan Supreme Court abandoned the common-law doctrine of contributory negligence in favor of comparative negligence. See Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979). Since Placek, the Michigan Supreme Court has applied the defense of comparative negligence to a claim involving violation of a workplace safety statute, holding that the underlying public policy of comparative negligence — i.e., to encourage workplace safety by employers and employees alike — overcomes the former view that an action based on an employer’s failure to provide adequate safety devices was not subject to the defense of contributory negligence. Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982). Hardy, however, did not involve application of an absolute liability statute, as here. Thus, we are of the opinion that Justice Cooley’s general premise in Lull remains viable today: Where a regulatory statute establishes a mandatory duty and imposes absolute liability for a breach of that duty, the common law defense of comparative negligence is not available.
In sum, we hold that the defenses of comparative negligence and joint and several liability were not available to Christensen in the negligence action based on his violation of MCL 257.719(1); MSA 9.2419(1).
Although we have interpreted § 719(1) as creating a presumption of negligence for its violation, proximate causation must still be established to impose absolute liability. See Zeni, supra at 138-139. In a negligence case, proximate cause is generally a factual issue to be decided by the trier of fact. Vsetula v Whitmyer, 187 Mich App 675, 682; 468 NW2d 53 (1991); Derbeck v Ward, 178 Mich App 38, 44; 443 NW2d 812 (1989). However, if reasonable minds could not differ regarding the proximate cause of the plaintiffs injury, the court should decide the issue as a matter of law. Whitmyer, supra at 682; Derbeck, supra at 44. Here, viewing the evidence in a light most favorable to plaintiffs, we believe that reasonable minds could not differ in finding that Christensen’s violation of the safety statute was a proximate cause of plaintiffs’ injuries. Thus, we hold as a matter of law that Christensen was absolutely hable for ah damage and injury resulting from the collision of his overheight vehicle with the overpass. Because Christensen settled with plaintiffs following mediation, as did the MDOT, we need not remand this matter for a trial with respect to damages.
n
Cross-plaintiff mdot asserts that it was entitled to indemnification from cross-defendant Christensen for the $25,000 it paid to plaintiffs as a result of a consent judgment in the negligence action. We hold that the trial court erred in denying summary disposition to the mdot on its cross-claim.
As we reaffirmed in Universal Gym Equipment, Inc v Vic Tanny Int’l, Inc, 207 Mich App 364, 372; 526 NW2d 5 (1994), “an action for indemnification can be maintained only on the basis of an express contract or, in the case of common-law or implied contractual indemnification, by a party who is free from negligence or fault.” Pursuant to MCL 257.725; MSA 9.2425, Christensen was required to apply for a special-use permit from the mdot to operate his overheight vehicle on highways under mdot jurisdiction. At deposition, Christensen testified that he was aware of the permit requirement, but intentionally failed to apply for one. The mdot argues that, had Christensen applied for a permit as required, it would have been entitled to indemnification under the permit application’s “hold harmless” clause:
The permittee shall be responsible for damages to the highway, to persons, and to property caused by or arising from operations covered by this permit.
The permittee shall indemnify and save harmless the Transportation Commission, the department and all of their employees from any and all suits, claims, and damages of every kind arising out of, under, or by reason of this permit, or from operations covered by this permit.
Thus, the only reason why we are not analyzing this case on the basis of an express contractual indemnification is because Christensen did not apply for the statutorily required special-use permit. The mdot argues that, given the equities of the circumstances, a contract should be implied in law and its indemnification clause enforced. We agree.
Generally, if one person’s wrongful act results in the imposition of liability on another who was without fault, indemnity may be obtained from the actual wrongdoer. Langley v Harris Corp, 413 Mich 592, 597-598; 321 NW2d 662 (1982); Telford, supra at 229. As previously noted, while the right frequently arises out of an express contract to indemnify, it can also be based on an implied contract or be imposed by law. Skinner v D-M-E Corp, 124 Mich App 580; 335 NW2d 90 (1983). Implied contractual indemnity is not available, however, unless the indemnitee is free from active negligence in causing the plaintiff’s injury. Id. The requirement that the indemnitee be without fault is based in part on the underlying principle that liability should fall on the party best able to adopt preventive measures. Id.; Langley, supra at 599-600, n 4.
However, a claim of implied contractual indemnity is precluded if the complaint in the underlying action or the third-party complaint fails to state a basis for such a claim. Universal Gym Equipment, supra at 372; Employers Mut Casualty Co v Petroleum Equipment, Inc, 190 Mich App 57, 65-66; 475 NW2d 418 (1991). Although previous panels of this Court have examined the underlying complaint and the third-party complaint to see if there are any allegations of derivative or vicarious liability, as well as to see if the party seeking an implied contractual indemnification has denied any active negligence, see, e.g., Universal Equipment, supra at 372; Employers Mut, supra at 65-66, none of these cases have involved an absolute liability statute. As the Michigan Supreme Court observed in Williams v Unit Handling Systems Divi sion of Litton Systems, Inc, 433 Mich 755, 759; 449 NW2d 669 (1989), in both express and implied contractual indemnification, “the action is based not on the common-law rule that a person held vicariously liable for the acts of another is entitled to indemnity, but rather on the express or implied contractual undertaking of the indemnitor.” In the case at hand, the mdot’s basis for indemnity is not that it was held vicariously liable, but rather that § 719(1) places absolute liability for the damages on Chistensen. We believe such an assertion does state a basis for a claim for indemnification. Further, we note that, by violating § 725, Chistensen did not give the MDOT the opportunity to “restrict or prescribe conditions of operation of [Christensen’s] . . . vehicle,” MCL 257.725(4); MSA 9.2425(4), in such as manner as might have prevented the collision from occurring.
Given these foregoing principles, we hold that the mdot is entitled to indemnification on the basis of an implied contract. To hold otherwise would not only eríjate an inherent inconsistency with our holding in part I of this opinion that § 719(1) creates absolute liability for a breach of the statutory duty, but would also allow Christensen to improve his legal position by flagrantly violating the statutory requirement under § 725 that he obtain a special-use permit to operate his nonconforming vehicle on state highways. This we will not do. As we concluded above, the MDOT is without legal fault pursuant to MCL 257.719(1); MSA 9.2419(1). Quite clearly, Christensen was at all times in the best position to prevent the damage and injury that occurred. Skinner, supra. The mdot should not be called upon to account for a dangerous condition created by the actions of Christensen. See Hart Twp v Noret, 191 Mich 427, 432-434; 158 NW 17 (1916). We therefore conclude that the mdot has established a basic right to indemnification.
Christensen argues, however, that he should not be bound by the mdot’s voluntary decision to settle with plaintiffs, where the mdot neither tendered its defense to Christensen nor otherwise sought Christensen’s consent or participation in the settlement negotiations. At the outset, we reject Christensen’s argument that the mdot was required to tender its defense to Christensen as a prerequisite for indemnification in this case. The legal interests of the mdot and Christensen with respect to plaintiffs’ tort claims were in direct conflict. While the mdot’s defense against liability to plaintiffs was based on Christensen’s absolute liability under § 719(1), Christensen vigorously argued that the mdot was jointly and severally hable. Therefore, given this conflict of interest, we hold that the mdot was not required to tender its defense to Christensen.
Although there was no tender-of-defense requirement, Christensen argues that the mdot took on the status of a volunteer when it settled with plaintiffs, notwithstanding its vigorously argued claim that Christensen was solely hable to plaintiffs under § 719(1). While this argument has certain appeal, on closer inspection we find that it also lacks merit. Notably, despite an opportunity to challenge the reasonableness of the settlement amount in the lower court and in this Court, Christensen has not done so. Thus, we must presume that Christensen believes the settlement amount to be a fair and accurate reflection of the amount of the judgment he would have sustained had this matter gone to trial. Ford v Clark Equipment Co, 87 Mich App 270; 274 NW2d 33 (1978); Farmers Ins Group v Progressive Casualty Ins Co, 84 Mich App 474, 485; 269 NW2d 647 (1978). See also Parfait v Jahncke Service, Inc, 484 F2d 296, 305 (CA 5, 1973).
Moreover, our review of the record reveals ample justification for the mdot’s decision to enter into a consent judgment with plaintiffs. First, the policy of this state is to encourage the settlement of lawsuits because it benefits both the parties and the public. Ford, supra at 277. Nonetheless, an indemnitor’s due process interests would be adversely affected if it were bound by its indemnitee’s unilateral acts without providing notice and an opportunity to be heard. GAB Business Services, Inc v Syndicate 627, 809 F2d 755 (CA 11, 1987). Accord MCL 600.2925a; MSA 27A.2925(1) (setting forth criteria for contribution from nonsettling joint tortfeasor). There is no dispute here that the MDOT failed to provide Christensen with notice of, and an opportunity to participate in, the settlement negotiations between the mdot and plaintiffs.
“Deciding whether to try a case to judgment or to settle it involves elements of legal evaluation, of financial capacity to take risk, and of appetite for court room conflict which vary widely among litigants.” Tankrederiet Gefion A/S v Hyman-Michaels Co, 406 F2d 1039, 1043-1044 (CA 6, 1969). During the hearing regarding Christensen’s motion for summary disposition of the mdot’s cross-claim for indemnification, counsel for the mdot explained that one of the reasons for its decision to settle with plaintiffs was to ensure timely payment to the injured plaintiffs while it pursued its claim on appeal that § 719(1) imposed absolute liability against Christensen. We note that just a few weeks preceding entry of the consent judgment, the trial court had ruled, despite the clear language of § 719(1), that the mdot could not escape liability for its alleged negligence in posting an inaccurate sign on the overpass. Hence, by avoiding an imminent trial on the underlying tort claims, the MDOT ensured that the injured plaintiffs were compensated without unnecessary delay and also avoided the expense of a trial. We also note that, during the hearing regarding the mdot’s motion for summary disposition in May 1996 — less than two months before entry of the consent judgment — counsel for the mdot indicated that he would take an appeal from an unfavorable ruling of the trial court with respect to application of § 719(1). Accordingly, the mdot’s decision to settle with plaintiffs was justified and resulted in no prejudice to Christensen.
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Saad, P.J.
i
NATURE of the case
Plaintiff’s personal injury, products liability claim against General Motors Corporation raises a choice-of-law question of first impression under Michigan law: is plaintiff’s residency at the time of injury or at the time of filing suit controlling? Because plaintiff resided in North Carolina when injured, and in Michigan when he brought suit, we must decide which residency controls. This determination will dictate the outcome of plaintiff’s claim because, other than the residency of plaintiff, all significant factors here point to the application of North Carolina law. Plaintiff lived and worked in North Carolina when he was injured by a vehicle owned, registered, licensed, and insured in North Carolina, and he subsequently received medical treatment in North Carolina. The only connection this incident has to Michigan is plaintiff’s postinjury move to Michigan.
If North Carolina law applies, its six-year statute of repose would bar plaintiff’s claim. Because the vehi ele was sold in 1975 and the injuries occurred in 1994 (well beyond the six-year statute of repose), plaintiffs claim would be barred under North Carolina law. On the other hand, plaintiffs claim could be pursued under Michigan law, which has no statute of repose and whose three-year statute of limitations would not bar plaintiffs 1996 suit arising out of a 1994 injury.
For the reasons discussed below, we hold that plaintiffs residency at the time of injury is controlling under Michigan’s choice-of-law jurisprudence. Accordingly, North Carolina’s statute of repose bars plaintiff’s claim. We therefore reverse the circuit court’s denial of GM’s motion to dismiss, and remand for dismissal consistent with this opinion.
n
BACKGROUND
In 1994, while a resident of North Carolina, plaintiff worked as a mechanic for Bunn’s Mobile Truck Repairs. In his capacity as a mechanic, plaintiff injured himself as he worked on a 1975 Chevrolet Camaro manufactured by GM. Plaintiff asserts that defective design of the relevant part of the vehicle caused his injury; therefore, plaintiff’s claims are predicated on products liability theories.
At the time of the accident, the vintage vehicle was registered, licensed, and insured in North Carolina and owned by a North Carolina resident. The vehicle was manufactured at GM’s Norwood, Ohio, plant. GM’s world headquarters are in Detroit, but GM does busi ness in all fifty states. Gm has facilities in North Carolina and does substantial business there, including purchasing materials and parts to be incorporated into its automobiles.
After plaintiffs injury, but before suit was filed, plaintiff moved from North Carolina to Michigan. Following his move to Michigan, plaintiff continued to receive medical treatment in North Carolina.
After plaintiff filed suit in Michigan, GM filed its motion to dismiss, contending that, pursuant to Michigan choice-of-law analysis, North Carolina law applied and that North Carolina’s statute of repose barred plaintiff’s suit. In response, plaintiff asserted that the law of the forum state (Michigan) should apply because plaintiff’s Michigan residency when the complaint was filed should be determinative, and therefore both plaintiff and GM were Michigan residents.
In denying gm’s motion to dismiss, the trial court concluded that residency is typically determined as of the date the complaint is filed. Therefore, for purposes of its choice-of-law analysis, the trial court incorrectly treated plaintiff as a Michigan resident. The court also erroneously ruled that, if residency were determined as of the date of injury, Michigan law would apply because this would be gm’s expectation, given that the vehicle was designed in Michigan. Finally, the court found that North Carolina’s statute of repose should not be applied through Michigan’s borrowing statute because that statute permits Michi gan to borrow another state’s statute of limitations, not a statute of repose.
m
ANALYSIS
In tort cases, Michigan courts use a choice-of-law analysis called “interest analysis” to determine which state’s law governs a suit where more than one state’s law may be implicated. See Sutherland v Kennington Truck Service, Ltd, 454 Mich 274, 278-286; 562 NW2d 466 (1997). Although this balancing approach most frequently favors using the forum’s (Michigan’s) law, Michigan courts nonetheless use another state’s law where the other state has a significant interest and Michigan has only a minimal interest in the matter:
[W]e will apply Michigan law unless a “rational reason” to do otherwise exists. In determining whether a rational reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine if any foreign state has an interest in having its law applied. If no state has such an interest, the presumption that Michigan law will apply cannot be overcome. If a foreign state does have an interest in having its law applied, we must then determine if Michigan’s interests mandate that Michigan law be applied, despite the foreign interests. [Id. at 286.]
Here, we conclude that Michigan’s interest is minimal and that North Carolina has a significant interest in having its law applied.
As noted above, plaintiff lived in North Carolina, worked for a North Carolina employer, and was injured in North Carolina by a vehicle owned, regis tered, licensed, and insured in North Carolina, and plaintiff subsequently received medical treatment at Duke Medical Center in North Carolina. North Carolina, therefore, obviously has a substantial interest in applying its law to this dispute.
Michigan case law reveals additional reasons why North Carolina has a substantial interest in applying its law to this dispute. In Farrell v Ford Motor Co, 199 Mich App 81; 501 NW2d 567 (1993), the plaintiffs decedent (a North Carolina resident) was killed in an automobile accident that occurred in North Carolina, allegedly as a result of a defective transmission. In Farrell, defendant Ford made the identical argument advanced by GM here — that North Carolina’s six-year statute of repose barred the plaintiff’s claim. Applying Michigan’s choice-of-law rules, the Farrell panel held that North Carolina law applied to bar the claim. The Farrell Court’s conclusion and reasoning is significant and pertinent to our inquiry:
Plaintiff contends that because the policy behind the statute of repose is to protect manufacturers from “open-ended” liability stemming from the manufacture or design of their products, the only reasonable interest North Carolina can assert is the protection of those who conduct manufacturing and design activities within its borders. According to plaintiff, Ford has no such facilities in North Carolina and thus North Carolina has no interest in applying its law for the protection of Ford. . . .
After thorough review, we are satisfied that North Carolina has an obvious and substantial interest in shielding Ford from open-ended products liability claims. Ford unquestionably generates substantial commerce within the State of North Carolina. ... It is obviously in North Carolina’s economic interest to encourage manufacturers, such as Ford, to do business in North Carolina. The sales taxes collected, salaries paid, and materials purchased all contrib ute to North Carolina’s economy. The presence of a Ford manufacturing plant within the borders of North Carolina is not dispositive with regard to the economic interests at issue. [Id. at 92-93.]
Here, North Carolina has the identical interest in shielding gm from “open-ended products liability claims” that it did in shielding Ford from such claims in Farrell: it is in North Carolina’s economic interest to encourage GM to do business in that state. As in Farrell, we conclude that North Carolina has a substantial interest in having its law applied to this dispute.
On the other hand, the state of Michigan has a minimal interest in having its law applied to this dispute. We again look to Farrell, where our Court stated:
Michigan has little or no interest in this North Carolina accident involving a North Carolina resident. Michigan has no interest in affording greater rights of tort recovery to a North Carolina resident than those afforded by North Carolina. Michigan is merely the forum state and situs of defendant’s headquarters. Such minimal interests are insufficient to justify the result-oriented forum shopping that has been attempted. [Id. at 94 (emphasis added; citation omitted).]
Similarly, here, the accident occurred in North Carolina, injuring plaintiff, who, at the time of injury, was a North Carolina resident working on a vehicle registered in North Carolina.
However, plaintiff attempts to distinguish Farrell (where the plaintiff was a North Carolina resident both at the time of injury and at the time of filing suit) by arguing that plaintiff here is a Michigan resident (i.e., that although he was a North Carolina resident at the time of injury, he moved to Michigan before filing suit). He contends that, if plaintiff is considered a Michigan resident, this fact is sufficient to “tip the scales” toward application of Michigan law. As noted above, the effect of a plaintiffs postinjury change of residency on the choice-of-law analysis is an issue of first impression in Michigan.
The only Michigan case that appears to address this specific issue does not squarely hold that residency at the time of injury is determinative. In Hampshire v Ford Motor Co, 155 Mich App 143; 399 NW2d 36 (1986), the plaintiff filed suit in Michigan after being hit by a stolen vehicle in California. The plaintiff alleged that the antitheft device that Ford used caused Ford vehicles to be more susceptible to theft than other makes. In determining which state’s law to apply, our Court noted, “[b]oth plaintiff and the driver of the vehicle were residents of the state of California when the accident occurred.” Id. at 145 (emphasis added). Later in the decision, the Court stated:
Michigan, has no significant interest in this litigation. The plaintiff was a resident living in California at the time of the accident and has never resided in Michigan. The accident occurred in California and the Ford vehicle involved was registered and licensed in California. The connections to Michigan are limited to the fact that Ford’s headquarters are located in Michigan and the action was filed in this state. We note that plaintiff is apparently now a resident of Massachusetts. [Id. at 147 (emphasis added).]
Our Court applied California law and affirmed the trial court’s grant of summary disposition. Though this case suggests that residency at the time of the injury is dispositive, it falls short of reaching this express holding. We therefore look to decisions from other states that have addressed this precise conflict-of-laws issue.
In Reich v Purcell, 67 Cal 2d 551; 63 Cal Rptr 31; 432 P2d 727 (1967), the Supreme Court of California was asked to apply California law where a family was involved in an automobile accident in Missouri while on their way from their home in Ohio to consider relocating to California. (The two members of the family who survived and maintained the wrongful death suit did later move to California and filed suit there.) In its choice-of-law analysis, the court declined to consider the survivors as California residents, stating:
Although plaintiffs now reside in California, their residence and domicile at the time of the accident are the relevant residence and domicile.... [I]f the choice of law were made to turn on events happening after the accident, forum, shopping would be encouraged. [Id. at 555 (emphasis added).]
See also Perloff v Symmes Hosp, 487 F Supp 426 (D Mass, 1980) (Massachusetts federal court applied Massachusetts law, despite fact that the plaintiffs moved to California before filing suit); Summers v Interstate Tractor & Equipment Co, 466 F2d 42, 48, n 3 (CA 9, 1972) (Oregon forum; the plaintiffs’ subsequent relocation to be near relatives not to be considered in choice-of-law analysis); Seattle-First Nat’l Bank v Schriber, 51 Ore App 441, 449; 625 P2d 1370 (1981).
In Ferren v General Motors Corp, 137 NH 423; 628 A2d 265 (1993), the Supreme Court of New Hampshire reached a similar result. There, the plaintiff lived and worked in Kansas from 1961 until 1974. He then moved to New Hampshire, where, fifteen years later, he was diagnosed with an illness allegedly related to his exposure to lead dust at the defendant’s plant in Kansas. Kansas had a ten-year statute of repose that would have barred the plaintiff’s claim; New Hampshire did not. The Ferren court articulated the parties’ positions as follows:
The Ferrens . . . maintain that because they have resided in New Hampshire since 1974 and because Mr. Ferren discovered his illness while living in this State, these are “substantial connections” to the facts and issues of this case to render New Hampshire law applicable. In addition, the Ferrens argue that as a matter of policy, “[s]ince Kansas would not provide any type of remedy to the plaintiffs, [the New Hampshire court] should apply its own law in protecting citizens such as Dennis Ferren from the harsh results of Kansas law.”
GMC contends that the case is governed by the Kansas workers’ compensation statute because Mr. Ferren was an employee of GMC when he was exposed to lead-containing products while residing in Kansas and working in a Kansas battery-making plant pursuant to a contract of employment that arose entirely in Kansas. The fact that the plaintiffs moved to New Hampshire after the events giving rise to the lawsuit is, GMC argues, insufficient to apply New Hampshire law. [Id. at 425.]
The Ferren court concluded that the employment relationship arose entirely within the state of Kansas and that the fact that the Ferrens resided in New Hampshire at the time of suit, standing alone, was insufficient to warrant application of New Hampshire law. Id. at 426-427. See also Gutierrez v Swaim, Inc, 1994 US Dist LEXIS 1813, * 3; 1994 WL 62843 (SD NY, 1994); O’Brien v Grumman Corp, 475 F Supp 284, 294 (SD NY, 1979); Wheeler v Standard Tool & Mfg Co, 359 F Supp 298, 301 (SD NY, 1973). Cf. Miller v Miller, 22 NY2d 12, 21-22; 290 NYS2d 734; 237 NE2d 877 (1968) (postaccident move of the defendant from Maine to New York was considered in determining whether to apply the Maine statutory limitation on wrongful death action brought by New York plaintiff).
The rationale that permeates these decisions is a judicial objective of preventing plaintiffs from forum shopping by postinjuiy moves. While the record here does not reveal whether plaintiff’s motive involved forum shopping, we nonetheless conclude that forum shopping would be encouraged if we adopt the position urged by plaintiff. We see a grave danger in reaching a decision that would permit postinjury events, exclusively within the control of one party, to determine which state’s law will apply. This danger is particularly problematic where, as here, a plaintiff’s claim would be totally barred in the state of injury and could only be restored by a move to a state with laws more favorable to the claim.
For all these reasons, we hold that, for Michigan choice-of-law analysis, a plaintiff’s residency is determined as of the date of the injury, not as of the date of the filing of a lawsuit. In other words, where as here, a plaintiff is not a resident of Michigan at the time an injury occurs, but becomes a Michigan resident before filing a lawsuit in Michigan, the plaintiff’s residency at the time of injury controls. Having reached this conclusion, we find that plaintiff here was not a Michigan resident for purposes of choice-of-law analysis. We therefore find the analysis in Farrell to be determinative and conclusive:
Michigan has little or no interest in this North Carolina accident involving a North Carolina resident. Michigan has no interest in affording greater rights of tort recovery to a North Carolina resident than those afforded by North Carolina. Michigan is merely the forum state and situs of defendant’s headquarters. Such minimal interests are insufficient to justify the result-oriented forum shopping that has been attempted. [Farrell, supra at 94 (citation omitted).]
In light of our conclusion that North Carolina law controls this dispute, we need not address defendant’s argument regarding the effect of Michigan’s borrowing statute, MCL 600.5861; MSA 27A.5861. See Farrell, supra at 94. Michigan’s borrowing statute basically provides that whichever statute of limitations time-bars a plaintiff’s claim (i.e., the statute of the state where an injury occurs, or Michigan’s statute) should apply. However, without addressing the parties’ arguments concerning whether Michigan’s borrowing statute applies to statutes of repose, we note that the existence of this borrowing statute evidences, at a minimum, legislative intent to discourage suits in Michigan that would be time-barred in other states. Our ruling today is certainly reflective of the legislative scheme designed to prevent forum shopping in order to resurrect claims time-barred in other jurisdictions.
IV
CONCLUSION
We conclude that North Carolina’s law applies to this matter, and on the basis of our reading of its statute of repose, NC Gen Stat 1-50(6), that plaintiff’s claim is time-barred. The circuit court’s denial of defendant’s motion to dismiss was erroneous and is hereby reversed and this matter is remanded for entry of dismissal. We do not retain jurisdiction.
Reversed and remanded.
O’Connell, J., concurred.
Of coruse, defendant gm can be found and sued here but gm does business in all states, including North Carolina.
The North Carolina statute of repose at issue, NC Gen Stat 1-50(6) provides that
[n]o action for the recovery of damages for personal injury, death or damage to property based upon or arising out of any alleged defect or any failure in relation to a product shall be brought more than six years after the date of initial purchase for use or consumption.
MCL 600.5805(9); MSA 27A.5805(9).
Gm is actually a Delaware corporation, with its principal place of business in Michigan.
MCL 600.5861; MSA 27A.5861.
While we wish to make clear that we do not adopt the trial court’s reasoning regarding this point, we need not reach this issue today.
MCL 600.5861; MSA 27A.5861 provides in relevant part:
An action based upon a cause of action accruing without this state shall not be commenced after the expiration of the statute of limitations of either this state or the place without this state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of this state the statute of limitations of this state shall apply.
See the text of the borrowing statute, supra, n 7. | [
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Cavanagh, J.
Defendant appeals as of right from his convictions of first-degree, premeditated murder, MCL 750.316; MSA 28.548, assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to life without parole for the murder conviction and thirty to ninety years’ imprisonment for the assault conviction, both to be served consecutively to a two-year term of imprisonment for the felony-firearm conviction. We vacate the conviction of first-degree murder and remand for entry of a conviction of second-degree murder, MCL 750.317; MSA 28.549. We affirm defendant’s other convictions.
During the early morning hours of September 18, 1995, defendant and his brother, Mark Plummer, were at the New Image Lounge in Niles. Defendant was wearing a black leather jacket. The decedent, Damon Hatcher, was also at the New Image Lounge along with several of his relatives, including Kevin Day.
Around 1:30 A.M., Day and Plummer began arguing in the pool room. Defendant and the decedent were also in the pool room at that time. A witness, Israel Bennett, testified that Day and Plummer exchanged words and that Day struck Plummer in the jaw with his fist, causing Plummer to fall to the floor. Plummer stood up, attempted to retaliate, and was again struck by Day. When Plummer went down, defendant tried to step in to help but Bennett stopped him, indicating that the fight was between Day and Plummer. Bennett then observed defendant hesitate for a moment, pull out his pistol and hold it at his side, give Bennett a threatening look, and subsequently turn to focus on his brother, who was lying on the floor with Day standing over him. Just then, the decedent ran from the other side of the bar toward Day, yelling, “Man break that up.” The decedent approached with his hand extended to push Day back, but tripped and fell against the wall. As the decedent attempted to stand, defendant “panicked,” raised his pistol and shot at the decedent’s back, striking him in the left shoulder. Defendant then pulled Plummer from the floor and ran out the door with his pistol still in hand.
Marcus Hatcher, the decedent’s cousin, testified that he observed the decedent run toward Day and Plummer and saw him trip and fall. Hatcher stated that after this occurred, defendant moved his hand so that the gun was aimed in a downward direction and fired, striking the decedent. Defendant fired a second shot, then grabbed Plummer and ran, “looking real paranoid like.” As he left the bar, defendant fired a third shot “[l]ike he was shooting at somebody.”
Christine Jolliff testified that she was in the New Image Lounge at the time of the incident. Jolliff observed defendant holding a gun and subsequently heard gunfire. As she tried to flee, Jolliff looked down, saw blood coming from her leg, and realized that she had been shot.
Day testified that Plummer was drunk at the time of their altercation. Plummer confronted him, apparently about a woman, and the two “commenced to arguing.” Day explained that he hit Plummer only after Plummer began to raise his hand against Day. After Day struck Plummer, Day heard someone say, “He has a gun.” Day turned, saw the gun in defendant’s hand, and ran. Day heard two shots and was near Jolliff when he saw that she had been struck in the leg.
Clint Woods testified that he saw two black men arguing with Day at the New Image Lounge. He then witnessed one of them, who was wearing a black leather jacket, use a black gun to shoot the decedent and a female patron.
Kevin Scaife stated that he witnessed a man in a black leather jacket chase Day out of the pool room as he shot at him. Scaife believed that the man was aiming at Day when he shot a woman in the leg.
Michigan State Police Trooper John Moore testified that he was called to the New Image Lounge at approximately 1:30 A.M. or 2:00 A.M. for crowd control purposes. Shortly after his arrival, he observed a sudden surge of people running from the bar, some yelling that there had been a shooting inside. Moore stated that one of the female patrons fleeing from the building identified a man in a black leather jacket as the shooter. Moore then ordered the man, whom he identified as defendant, to the ground. Defendant briefly lowered himself but then rose again and took several additional steps. However, defendant complied when Moore again ordered him to stop, and Moore and Officer Jimmy Kidwell of the Niles Police Department then took defendant into custody.
Kidwell testified that, when he and Moore were attempting to apprehend defendant and his brother, he observed defendant stoop and throw something underneath a parked car. After defendant was taken into custody, Kidwell went back to the location where he had seen defendant bend down and retrieved a .25 caliber gun from underneath the car. Defendant told Kidwell that the gun did not belong to him.
Officer Fulton Moore of the Niles Police Department reported that, when he booked defendant, he discovered a gun holster hooked over defendant’s belt and situated between his pants and his shorts. Defendant told Officer Moore that outside the bar, he had tripped and the gun had fallen out of the holster. Detective James Merriman, also of the Niles Police Department, reported that a preliminary breath test indicated that defendant’s blood alcohol level was 0.10 percent.
Pathologist John Landgraf testified that he had performed an autopsy on the decedent. The decedent had sustained a gunshot wound to his upper back. The bullet pierced the decedent’s aorta, and he bled to death.
Stuart Burritt, a firearms expert, testified that in his opinion the gun was less than fifteen inches from the decedent’s body when the fatal shot was fired. Burritt also reported that he examined two .25 caliber shell casings retrieved from the scene, along with the bullet found on the floor of the bar and the one retrieved from the decedent’s body. Burritt could not say with certainty whether the shell casings had been fired from the .25 caliber pistol found by Kidwell. However, Burritt believed that the two bullets had been discharged from the same weapon and that they could have been fired by the .25 caliber pistol. In addition, Burritt noted that there were “gross similarities” between the markings observed on the spent shell casings found at the scene and those observed on the casings subsequently fired from the pistol.
On April 16, 1996, a jury found defendant guilty of first-degree, premeditated murder, assault with intent to commit murder, and felony-firearm. Defendant appeals as of right.
i
Defendant first argues on appeal that there was insufficient evidence to support his convictions of first-degree, premeditated murder and assault with intent to commit murder. When ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992). Circumstantial evidence and reasonable inferences arising therefrom may be sufficient to prove the elements of a crime. People v McKenzie, 206 Mich App 425, 428; 522 NW2d 661 (1994).
A
Defendant contends that there was insufficient evidencie of premeditation to support his conviction of first-degree murder. Premeditation is an essential element of first-degree, premeditated murder. People v DeLisle, 202 Mich App 658, 660; 509 NW2d 885 (1993). Although there is no specific time requirement, sufficient time must have elapsed to allow the defendant to take a “second look.” Id.; People v Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995). This Court has explained:
[I]t underscores the difference between the statutory degrees of murder to emphasize that premeditation and deliberation must be given independent meaning in a prosecution for first-degree murder. The ordinary meaning of the terms will suffice. To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a “second look.”
This interpretation of premeditation and deliberation in no way departs from existing Michigan law. Time and again the Michigan Supreme Court has reversed convictions where the evidence of premeditation and deliberation was insufficient to warrant submission of a charge of first-degree murder to the jury. In each case, the homicide occurred during an affray whose nature would not permit cool and orderly reflection. [People v Morrin, 31 Mich App 301, 329-331; 187 NW2d 434 (1971).]
Though not exclusive, factors that may be considered to establish premeditation include the following: (1) the previous relationship between thé defendant and the victim; (2) the defendant’s actions before and after the crime; and (3) the circumstances of the killing itself, including the weapon used and the location of the wounds inflicted. People v Coddington, 188 Mich App 584, 600; 470 NW2d 478 (1991). Premeditation and deliberation may be inferred from all the facts and circumstances, but the inferences must have support in the record and cannot be arrived at by mere speculation. People v Conklin, 118 Mich App 90, 94; 324 NW2d 537 (1982).
A pause between the initial homicidal intent and the ultimate act may, in the appropriate circumstances, be sufficient for premeditation and deliberation. See People v Tilley, 405 Mich 38, 45; 273 NW2d 471 (1979). However, the Legislature’s use of the words “willful,” “deliberate,” and “premeditated” in the first-degree murder statute indicates its intent to require as an element of that offense substantially more reflection on and comprehension of the nature of the act than the mere amount of thought necessaiy to form the intent to kill. As the Supreme Court has stated, “when a homicide occurs during a sudden affray ... it would be ‘a perversion of terms to apply the term deliberate to any act which is done on a sudden impulse.’ ” Tilley, supra at 44-45, quoting Nye v People, 35 Mich 16, 18 (1876). To speak of premeditation and deliberation being instantaneous, or taking no appreciable time, destroys the statutory distinction between first- and second-degree murder. See Morrin, supra at 329; LaFave & Scott, Criminal Law (2d ed), § 7.7, p 643.
When the evidence establishes a fight and then a killing, there must be a showing of “a thought process undisturbed by hot blood” in order to establish first-degree, premeditated murder. Morrin, supra at 329-330. The critical inquiry is not only whether the defendant had the time to premeditate, but also whether he had the capacity to do so. “Without such evidence, the sequence of events is as consistent with an unpremeditated killing — following hard on the outset of the argument — as it is with a premeditated killing after an interval during which there was an opportunity for cool-headed reflection.” People v Gill, 43 Mich App 598, 606-607; 204 NW2d 699 (1972).
In Tilley, supra, the defendant’s friend and the victim, an off-duty sheriff’s deputy, had an argument outside a restaurant. The victim drew his gun, placed the friend under arrest, and requested the restaurant bouncer to call the police. Defendant, his friend, and the victim then began to struggle, and the defendant obtained the victim’s weapon. While the victim was retreating toward the restaurant, the defendant fired five or six shots, some in the parking lot and some inside the restaurant. Tilley, supra at 42-43. The Supreme Court held that there was sufficient evidence of premeditation and deliberation to support the defendant’s conviction of first-degree murder. First, the evidence indicated that the fighting had ended either when defendant obtained possession of the victim’s gun or when the victim began to retreat. Second, there was an interval of between one second and one minute between the time the defendant seized the gun and the time he fired it. Third, there was a time lapse between the volley of shots fired in the parking lot and the volley fired inside the restaurant. Finally, the defendant had to raise the gun before firing the second volley of shots. Id. at 45.
Under the facts of this case, we do not believe that defendant had the ability to engage in the “cool and orderly reflection” necessary to elevate his crime from second-degree to first-degree murder. See Morrin, supra at 331. Moments before he shot the dece dent, defendant witnessed Day strike Plummer in the face twice. Plummer fell to the floor, where he remained motionless. Defendant quite possibly believed, reasonably or not, that Day had seriously injured his brother during the altercation. Further, Day continued to stand over the spot where Plummer lay supine. Right before defendant drew his pistol, a bystander prevented him from approaching and aiding his brother. The decedent, while shouting, then ran toward Day and Plummer immediately before defendant shot him in the back. This heated situation was not conducive to a “second-look” weighing of the choice of shooting and killing the decedent. Indeed, one witness stated that defendant “panicked” when he shot the decedent, while another bystander stated that, immediately after shooting the decedent, defendant; appeared to be “real paranoid like.”
Furthermore, evidence showed that defendant had a blood alcohol level of approximately 0.10 percent during the shooting. Under the motor vehicle code, a person driving with that blood alcohol level is presumed to be under the influence of intoxicating liquor. See MCL 257.625a(9); MSA 9.2325(1)(9); People v Calvin, 216 Mich App 403, 408; 548 NW2d 720 (1996). Thus, it is even less likely that defendant subjected his actions to any analysis before he pulled the trigger.
The facts of this case are easily distinguishable from those in Tilley. In Tilley, the defendant fired several shots at the victim after the altercation had ended. The defendant then followed the victim into a nearby restaurant, raised the gun, and fired a second volley of shots at the victim. Tilley, supra at 45. Here, defendant appears to have reacted when the decedent unexpectedly charged into an ongoing fray. While there is evidence that defendant aimed at the decedent, such evidence by itself only establishes that defendant intended to kill the decedent, not that the killing was premeditated.
We recognize that defendant drew his gun and held it to his side for a time before shooting the decedent. However, the fact that defendant took out his gun does not establish that he was planning to use it. Even if, for the sake of argument, we assume that defendant’s action indicates that he was contemplating murder, defendant presumably would have been considering shooting Day, not the decedent. Defendant had no way of knowing that the decedent would attempt to intervene in the altercation between Day and Plummer. The evidence at trial established that the decedent ran toward the combatants, tripped and fell, and was shot by defendant as he attempted to get up. Here, in the confusion during the brawl, there does not appear to have been a sufficient amount of time for defendant to take a second look at the nature of his actions, “undisturbed by hot blood.” See Morrin, supra. One cannot instantaneously premeditate a murder. People v Johnson, 427 Mich 98, 148; 398 NW2d 219 (1986) (Archer, J., dissenting); People v Smith, 81 Mich App 190, 199; 265 NW2d 77 (1978).
Because we find that premeditation and deliberation were not established beyond a reasonable doubt, we vacate defendant’s conviction of first-degree, premeditated murder and remand for entry of judgment of conviction of second-degree murder and for sentencing for that conviction.
B
Defendant also argues that there was insufficient evidence presented to support his conviction of assault with intent to commit murder. The elements of the crime of assault with intent to commit murder are? (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder. People v Lugo, 214 Mich App 699, 710; 542 NW2d 921 (1995).
The evidence presented at trial established that, after shooting the decedent, defendant fired a shot at Day while the latter was attempting to run away. Jolliff, who was standing near Day, sustained a bullet wound to her left leg. From these facts, the jury could reasonably infer that defendant shot at Day with the intent to kill him, and that this intent transferred to Jolliff. See n 2, supra; People v Lawton, 196 Mich App 341, 350-351; 492 NW2d 810 (1992).
n
Defendant next argues that he is entitled to reversal, or in the alternative a remand to the lower court for reconsideration of his motion for a new trial, because the trial court failed to exercise its discretion to assess the propriety of the jury’s determination of the weight of the evidence and the credibility of the witnesses. We disagree.
A trial court’s decision on a motion for a new trial is reviewed for an abuse of discretion. People v Legrone, 205 Mich App 77, 79; 517 NW2d 270 (1994). A new trial may be granted when the verdict is against the great weight of the evidence. People v Herbert, 444 Mich 466, 475; 511 NW2d 654 (1993). A trial court may grant a new trial after finding that the testimony of the prosecutor’s witnesses is not credible, thereby acting as the thirteenth juror. Id. at 476-477. The trial court may vacate a verdict only when it does not find reasonable support in the evidence, but is more likely attributable to factors outside the record, such as passion, prejudice, sympathy, or other extraneous considerations. DeLisle, supra.
This Court has stated:
[W]hen sitting as a thirteenth juror, the hurdle a judge must clear to overrule a jury, is unquestionably among the highest in our law. It is to be approached by the court with great trepidation and reserve, with all presumptions running against its invocation. [People v Bart (On Remand), 220 Mich App 1, 13; 558 NW2d 449 (1996).]
In the present case, the trial court’s ruling on defendant’s motion for a new trial was undeniably terse. Nevertheless, the fact that the trial court declined to act as the “thirteenth juror” does not indicate a failure to exercise its discretion. In his motion for a new trial, defendant did not challenge the credibility of any particular witness or witnesses; rather, he pointed out that the scientific evidence does not definitively establish that he was the shooter. However, even though the scientific evidence is inconclusive, the record is by no means devoid of evidence linking defendant to the pistol or the shootings. The trial court did not abuse its discretion in ruling that ascertaining the identity of the shooter was a matter properly left to the jury.
m
Finally, defendant argues that his trial counsel was ineffective. A defendant who claims ineffective assistance of counsel must establish that (1) the performance of counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel’s unprofessional errors, the outcome of the proceedings would have been different. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). A defendant must overcome a strong presumption that counsel used sound trial strategy. Peo pie v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994), cert den sub nom Michigan v Caruso, 513 US 1121 (1995). Because defendant failed to move in the trial court for a Ginther hearing or a new trial on the basis of ineffective assistance of counsel, this Court’s review is limited to errors apparent on the record. People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. Stanaway, supra at 687. When considering a claim of ineffective assistance of counsel, counsel’s performance must be considered without benefit of hindsight. Moreover, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy. People v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995).
Defendant first argues that his trial counsel was ineffective for informing the jury during voir dire that defendant would testify, when defendant did not in fact testify. From our review of the record, it appears that, after voir dire and against the advice of counsel, defendant decided not to testify. In response to the trial court’s inquiries, defendant indicated that counsel had informed him of his rights, he was aware that the defense of self-defense could fail if he did not testify, and he was satisfied with counsel’s performance. Although defendant asserts on appeal that he was in fact dissatisfied with counsel’s performance, this claim is contrary to what he stated in open court. Accordingly, we reject it as a basis either for reversal or for an evidentiary hearing. See People v Gist, 188 Mich App 610, 613; 470 NW2d 475 (1991). Because defendant unexpectedly changed his mind about testifying, we conclude that defendant has not sustained his burden of showing that the performance of his counsel during voir dire was below an objective standard of reasonableness under prevailing professional norms.
Defendant also contends that his trial counsel was ineffective because he presented two conflicting defenses. We disagree. With defendant’s belated decision to forgo testifying, counsel’s original plan to present a self-defense theory was obviously weakened. Under the circumstances, counsel made the strategic decision to attempt to argue that the prosecution had not proved its case. The fact that defense counsel's strategy did not work does not establish ineffective assistance of counsel. See People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
We vacate the conviction of first-degree murder. The remaining convictions are affirmed. We remand for entry of a conviction of second-degree murder and for resentencing on that conviction and, because the trial court’s sentence may have been influenced by the first-degree murder conviction, for resentencing on the assault with intent to commit murder conviction.
The prosecutor argues that the fact that defendant went to the New Image Lounge with a loaded gun establishes premeditation and deliberation. However, use of a deadly weapon only establishes premeditation where circumstances show a motive or plan that would enable the trier of fact to infer that the killing was not a spur-of-the-moment decision. People v Waters, 118 Mich App 176, 186-187; 324 NW2d 564 (1982). In the present case, there is no evidence that defendant either procured the gun or brought it with him on the night in question as part of a plan to shoot the decedent or anyone else.
Furthermore, holding a weapon at one’s side does not definitively establish an intent to shoot another. For example, a person may bring out a weapon for self-defense if needed or as a warning to others. Defendant’s action of holding the gun at his side may be contrasted with the situation in Tilley, supra, in which the Supreme Court held that the fact that the defendant held the pistol with two hands was indicative of premeditation and deliberation, apparently reasoning that the action indicated a desire to steady the weapon as he fired. See Tilley, supra at 46.
Under the doctrine of transferred intent, where A aims at B, intending to kill him, but misses and hits C, killing her, A is held guilty of the murder of C. People v Youngblood, 165 Mich App 381, 388; 418 NW2d 472 (1988). However, that doctrine does not apply in this instance because, regardless of whether defendant had been contemplating shooting Day, at the time the decedent was shot, defendant had not taken any overt actions toward killing Day. There is no evidence that a bullet intended for Day struck the decedent. On the contrary, Marcus Hatcher’s testimony indicates that defendant deliberately aimed at the decedent before pulling the trigger.
In the recent decision of People v Lemmon, 456 Mich 625, 636-642; 576 NW2d 129 (1998), the Supreme Court held that the “thirteenth juror” standard introduced in Herbert, supra, was erroneous. However, because the Comí stated that its holding in Lemmon applies prospectively to cases not yet final on the date of that decision, we review this issue under the Herbert standard. We note, however, that we would reach the same result if this issue were analyzed under the standard set forth in Lemmon.
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). | [
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Smolensk, J.
In Docket No. 198706 of these consolidated appeals, Ameritech Michigan appeals as of right an October 1996 order of the Public Service Commission that denied Ameritech’s petition for a rehearing of a June 1996 PSC order. In Docket No. 199383, Ameritech appeals as of right a November 1996 circuit court order issuing a writ of mandamus. In both appeals, the PSC, the Attorney General, MCI Telecom mxmications Coiporation, and AT&T Communications of Michigan, Inc., respond as appellees. We reverse.
i
This case concerns whether Ameritech is required to provide “intraLATA toll dialing parity” in the absence of “interLATA relief.”
Before 1982, American Telephone and Telegraph Company, a provider of both local and long distance telephone service, dominated the telecommunications industry. The key to AT&T’s domination was its control of local telephone service. AT&T provided local telephone service through its numerous Bell operating companies, one of which was Michigan Bell Telephone Company, now doing business as Ameritech.
In 1982, AT&T agreed to the entry of a consent decree entitled “Modification of Final Judgment” in federal court (the AT&T consent decree). See, generally, United States v American Telephone & Telegraph Co, 552 F Supp 131 (D DC, 1982). For the purpose of ending AT&T’s monopoly over local telephone service, the AT&T consent decree provided that AT&T would divest itself of its Bell operating companies. The AT&T consent decree provided that the Bell operating companies would be authorized to provide telephone service only within certain defined geographic regions generally corresponding to telephone area code regions called “local access transport areas” (latas). This service, called intraLATA service, includes local calls, i.e., typically telephone calls within a city or town, as well as toll calls, i.e., calls covering a distance beyond local calls but within the same lata (intraLATA toll calls). However, the AT&T consent decree provided that the Bell operating companies were prohibited from providing interLATA service, i.e., telephone service between latas. The AT&T consent decree further provided that the interLATA prohibition could be removed when a Bell operating company showed that there was no substantial possibility that it could use its monopoly power to impede competition in the market it sought to enter. As a result, at least in part, of the AT&T consent decree, during the 1980s in Michigan a customer’s intraLATA toll calls were carried by a local carrier such as Ameritech while a customer’s interLATA calls were carried by an interexchange (long distance) carrier such as AT&T of Michigan or MCI.
In the late 1980s, the PSC authorized AT&T of Michigan and MCI to begin competing in the Michigan intraLATA toll market. However, in order for an inter-exchange carrier such as AT&T of Michigan or MCI to provide service for a customer’s intraLATA toll call, the customer must dial a five-digit “lOxxx” prefix to the number to be called, with the “xxx” being a three-digit identification code assigned to each inter-exchange carrier. The PSC allowed local carriers such as Ameritech to retain the use of what is termed “1 +” or “0 +” dialing, meaning that Ameritech provides service for a customer’s intraLATA toll call when the customer adds only a single digit prefix (either a “1” or “0”) to the number to be called.
These dialing arrangements are the root of this case. MCI and AT&T of Michigan do not like these dialing arrangements for intraLATA toll calls because they believe “1 +” and “0 +” dialing gives Ameritech a substantial competitive advantage in the intraLATA toll market. MCI and AT&T of Michigan want “intraLATA toll dialing parity,” i.e., “uniform 1 + dialing arrangements for all intraLATA service by all providers . . . .” However, Ameritech’s position has always been that it should not be required to provide intraLATA toll dialing parity until it has been accorded “interLATA relief,” i.e., the authority to compete in the interLATA market.
In July 1992, MCI commenced this proceeding in the PSC, U-10138, by filing a complaint alleging, in part, that Ameritech was violating various provisions of the Michigan Telecommunications Act, 1991 PA 179, MCL 484.2101 et seq.-, MSA 22.1469(101) et seq. (Act 179 or the mta), by failing to make intraLATA toll dialing parity available to MCI. At some point, the Attorney General and AT&T of Michigan intervened in this proceeding. Although finding that Ameritech’s failure to provide intraLATA toll dialing parity did not violate Act 179, the PSC ultimately determined that implementation of intraLATA toll dialing parity was in the public interest and, in a February 1994 decision, ordered Ameritech to implement intraLATA toll dialing parity in Michigan “no later than January 1, 1996.” The decision also provided that a task force would be established to work out the procedures for implementing intraLATA toll dialing parity. Ameritech moved for a rehearing and reconsideration, which was denied by the psc in a July 1994 decision.
After the task force submitted a report to the psc containing certain recommendations and noting certain disputed issues, the PSC issued a March 1995 decision in which it ordered Ameritech to begin implementing intraLATA toll dialing parity on January 1, 1996, in those offices in which it was technically possible to do so and to adopt a firm schedule for converting to intraLATA toll dialing parity for those offices in which it was not technically possible to do so by January 1, 1996. The decision also provided that a fifty-five percent discount on access charges would be imposed on those offices that did not meet the schedule for converting to intraLATA toll dialing parity. Access charges apparently are paid by an inter-exchange carrier such as AT&T of Michigan and MCI to a local carrier such as Ameritech for the inter- exchange carrier’s use of the local carrier’s local network during the initial and final link of an intraLATA toll call serviced by the interexchange carrier. In imposing the discount, the psc rejected the contention that the discount was a penalty. The PSC reasoned that the discount was warranted because nonconverted access services whereby customers would have to continue to dial five-digit access codes plus the number to be called in order for an interexchange carrier to service an intraLATA toll call were of lesser quality than converted access services whereby an inter-exchange carrier would service the call simply when customers dialed a one-digit prefix plus the number to be called.
Effective November 30, 1995, the Legislature enacted 1995 PA 216, MCL 484.2101 et seq.; MSA 22.1469(101) et seq. (Act 216 or the mta), which substantially amended and added several new sections to the MTA. In particular, Act 216 added § 312a and § 312b, both of which specifically addressed the implementation of intraLATA toll dialing parity in Michigan:
Sec. 312a. Effective January 1, 1996, if a waiver to the inter-LATA prohibitions has been granted for a specific service area and the service area has 2 or more providers of local exchange service, the provider of basic local exchange service shall provide 1 + intra-LATA toll dialing parity within the service area that is subject to the waiver.
Sec. 312b. (1) Except as otherwise provided in subsection (2) or (3), a provider of basic local exchange service shall provide 1 + intra-LATA toll dialing parity and shall provide inter-LATA toll service to an equal percentage of customers within the same service exchange on the following dates:
(a) To 10% of the customers by January 1, 1996.
(b) To 20% of the customers by February 1, 1996.
(c) To 30% of the customers by March 1, 1996.
(d) To 40% of the customers by April 1, 1996.
(e) To 50% percent of the customers by May 1, 1996.
(2) If the inter-LATA prohibitions are removed, the commission shall immediately order the providers of basic local exchange service to provide 1 + intra-LATA toll dialing parity.
(3) Except for subsection (l)(a), subsection (1) does not apply to the extent that a provider is prohibited by law from providing either 1 + intra-LATA toll dialing parity or inter-LATA toll service as provided under subsection (1).
(4) Except as otherwise provided by this section, this section does not alter or void any orders of the commission regarding 1 + intra-LATA toll dialing parity issued on or before June 1, 1995.
(5) The commission shall immediately take the necessary actions to receive the federal waivers needed to implement this section.
(6) This section does not apply to a provider of basic local exchange service with less than 250,000 access lines.
Section 312a was enacted with a repeal date of January 1, 2001, while § 312b was enacted with a repeal date of July 1, 1997. The Legislature defined the statutory phrase “inter-LATA prohibitions” in relevant part to mean “the prohibitions on the offering of . . . interLATA service contained in the modification of final judgment entered pursuant to [the AT&T consent decree].”
In response to the enactment of § 312b, Ameritech provided intraLATA toll dialing parity to only ten percent of its customers after January 1, 1996.
On February 8, 1996, Congress enacted § 271 of the Federal Telecommunications Act of 1996 (the fta), 47 USC 271, which addresses a Bell operating company’s implementation of intraLATA toll dialing parity and entry into the interLATA market in the following relevant respects:
(a) General limitation. Neither a Bell operating company, nor any affiliate of a Bell operating company, may provide interLATA services except as provided in this section.
* * *
(e) Limitations.
* * *
(2) IntraLATA toll dialing parity.
(A) Provision required. A Bell operating company granted authority to provide interLATA services . . . shall provide intraLATA toll dialing parity throughout that State coincident with its exercise of that authority.
(B) Limitation. Except for single-LATA States and States that have issued an order by December 19, 1995, requiring a Bell operating company to implement intraLATA toll dialing parity, a State may not require a Bell operating company to implement intraLATA toll dialing parity in that State before a Bell operating company has been granted authority under this section to provide interLATA services originating in that State or before 3 years after February 8, 1996, whichever is earlier. Nothing in this subparagraph precludes a State from issuing an order requiring intraLATA toll dialing parity in that State prior to either such date so long as such order does not take effect until after the earlier of either such dates.
(f) Exception for previously authorized activities. Neither subsection (a) of this section nor section 273 of this title shall prohibit a Bell operating company or affiliate from engaging, at any time after February 8, 1996, in any activity to the extent authorized by, and subject to the terms and conditions contained in, an order entered by the United States District Court for the District of Columbia pursuant to section VII or VIII(C) of the AT&T consent decree if such order was entered on or before February 8, 1996, to the extent such order is not reversed or vacated on appeal. Nothing in this subsection shall be construed to limit, or to impose terms or conditions on, an activity in which a Bell operating company is otherwise authorized to engage under any other provision of this section.
The term “Bell operating company” is defined to include Michigan Bell Telephone Company. 47 USC 153(4). The term “AT&T consent decree” in § 271(f) is defined as an order entered pursuant to the decree entered in AT&T Co, supra. 47 USC 153(3). The phrase “[e]xeept for single-LATA States and States that have issued an order by December 19, 1995, requiring a Bell operating company to implement intraLATA toll dialing parity” in § 271(e)(2)(B) is known as the “Breaux-Leahy Amendment.” Bell Atlantic-New Jersey, Inc v Tate, 962 F Supp 608, 613 (D NJ, 1997). The amendment was designed to avoid the generally preemptive effect of § 271(e)(2)(B) and allow states such as Michigan that had ordered intraLATA toll dialing parity by December 19, 1995, to proceed to effec tuate that requirement after that date. Id.-, see also 141 Cong Rec, S 8349 (daily ed, June 14, 1995) (statement of Sen. Leahy). The amendment has also been referred to as a “grandfather clause.” Bell Atlantic, supra.
In May 1996, MCI and AT&T of Michigan moved in the psc to compel Ameritech to comply with the psc’s previous orders concerning full implementation of intraLATA toll dialing parity. Relying on the language in § 312b(4) that “this section does not alter or void any orders of the commission regarding 1 + intra-LATA toll dialing parity issued on or before June 1, 1995,” MCI and AT&T of Michigan reasoned that the expiration of the January 1 to May 1, 1996, statutory phase-in schedule contained in § 312b(l) meant that the psc’s 1994 and March 1995 orders were once again fully effective and that the time frames for implementing intraLATA dialing parity set forth in those orders must now be met.
In response, Ameritech contended that § 312b constituted a statutory plan linking intraLATA toll dialing parity with interLATA relief. Ameritech cited § 312b(3) for the proposition that “unless and until” it was allowed to provide interLATA service, it was statutorily obligated to provide intraLATA toll dialing parity to only ten percent of its customers.
In a June 1996 decision, the PSC ordered Ameritech, within thirty days, to provide intraLATA toll dialing parity and implement the fifty-five percent discount on access charges pursuant to the psc’s 1994 and March 1995 orders. The PSC rejected Ameritech’s contention that § 312b was intended to link intraLATA toll dialing parity with interLATA relief. The PSC accepted MCI’s and AT&T of Michigan’s contention that § 312b was intended to provide only a partial and temporary reprieve from the PSC’s conversion schedule. In so ruling, the PSC reasoned that § 312b was ambiguous. The PSC resolved the perceived ambiguity by considering the language of § 312b, its legislative history, and its practical effect.
With respect to the language of § 312b, the PSC noted that, had the Legislature intended to link intraiATA toll dialing parity with interLATA relief, it could have done so in either of two ways. First, the PSC noted that the absence of the operative phrase relied on by Ameritech (“unless and until”) casts serious doubt on Ameritech’s claim that the Legislature intended to indefinitely suspend the dialing parity conversion schedule once conversion reached ten percent. Second, the PSC noted that
the phrase “no more than” could have been inserted before each of the numerical percentages found in subsections (l)(a) through (l)(e) of Section 312B [sic], thus clearly expressing that the maximum scope of dialing parity that Ameritech Michigan could be required to provide (at least until all federal prohibitions on providing interLATA toll service are lifted) was 50%. However, neither that nor any similar phrase was included in the Act. Therefore, the language in Section 312b(l), when given its plain meaning, appears to set a minimum, rather than a maximum, pace for Ameritech Michigan’s conversion to dialing parity. This conflicts with Ameritech’s interpretation of the Act.
The PSC also noted that the July 1, 1997, expiration of § 312b simply removed any doubt that one hundred percent intraLATA toll dialing parity was consistent with the Legislature’s intent.
The PSC also found that the legislative history of § 312b did not support Ameritech’s argument that the Legislature intended to link intraLATA toll dialing parity with interLATA relief. In so finding, the PSC quoted part of an early Senate version of § 312a:
Until the inter-LATA prohibitions are removed for providers of basic local exchange service, a provider of basic local exchange service is not required to provide 1 + intra-LATA toll dialing parity. If the inter-LATA prohibitions are removed, then a provider of basic local exchange service shall offer to other providers 1 + intra-LATA toll dialing parity. [SB 722, as passed by the Senate on October 26, 1995.]
The PSC found that the Legislature’s failure to ultimately enact this language as part of § 312a and § 312b meant that the Legislature did not intend to absolutely link intraLATA dialing parity with interLATA relief. The PSC also noted:
As initially written, Section 312b(4) retained the effectiveness of all Commission orders regarding dialing parity issued before June 30, 1995. See House Public Utility Committee substitute, H-l, to Senate Bill No. 722; 1995 Journal of the House 2651 (No. 82, November 7, 1995). However, that date was in conflict with the June 1, 1995 cut-off being considered by Congress in legislation that eventually became the federal Telecommunications Act of 1996. This created the possibility that the Commission’s orders concerning dialing parity might not be considered “grandfathered” and that Michigan, like a majority of the states, would be precluded for up to three years from requiring Ameritech Michigan to implement dialing parity unless the company first received authority to provide interLATA toll service.
To avoid that result, the language of Section 312b(4) was amended by replacing “June 30, 1995” with “June 1, 1995.” Id. at 2654. In making that change, the Legislature ensured (1) that the removal of interLATA prohibitions would not become a condition precedent to requiring Ameritech Michigan to provide intraLATA dialing parity, and (2) that prior Commission orders requiring the comprehensive implementation of dialing parity would not be overturned by the new federal law The legislative history of Section 312b(4) thus supports the construction advocated by MCI and AT&T ....
Finally, the PSC noted that implementation of intraLATA dialing parity was in the public interest and that Ameritech’s construction of § 312b conflicted with the mta’s goals of encouraging competition and new providers.
Ameritech moved for a rehearing. In an October 1996 decision, the PSC denied rehearing and ordered Ameritech to immediately provide intraLATA toll dialing parity and implement the fifty-five percent discount on access charges in unconverted offices in accordance with the PSC’s 1994, March 1995, and June 1996 orders.
In November 1996, Ameritech timely filed with this Court a claim of appeal from the PSC’s October 1996 order (Docket No. 198706). That same day, AT&T Communications of Michigan and MCI filed a complaint against Ameritech in the circuit court, seeking a writ of mandamus compelling Ameritech to comply with the PSC’s toll dialing parity orders. Following oral argument, but without considering the statutory language of § 312b or otherwise making any findings of fact or conclusions of law, the circuit court issued an order directing that the requested writ of mandamus be issued. The order directed Ameritech to comply with the PSC’s intraLATA toll dialing parity orders in “conformance with the implementation schedule ordered by the Commission.” Ameritech then filed a timely claim of appeal in this Court from the circuit court’s order (Docket No. 199383). In December 1996, this Court entered a stay of further proceedings in Docket No. 198706 (Ameritech’s appeal of the psc’s October 1996 order) “pending resolution of this appeal or further order of this Court.” In January 1997, this Court consolidated Ameritech’s appeals.
II
Ameritech contends that this Court must reverse the psc’s 1996 orders requiring full implementation of intraLATA toll dialing parity.
Ameritech bears the burden of proving by clear and satisfactory evidence that the psc’s decisions were unlawful or unreasonable. MCL 462.26; MSA 22.45, MCL 484.2203(7); MSA 22.1469(203)(7); Attorney General v Public Service Comm, 227 Mich App 148, 153; 575 NW2d 302 (1997); In re Procedure & Format For Filing Tariffs Under The Michigan Telecommunications Act, 210 Mich App 533, 538; 534 NW2d 194 (1995). A decision of the psc is unlawful when it involves an erroneous interpretation or application of law and unreasonable when it is unsupported by the evidence. Consumers Power Co v Public Service Comm, 226 Mich App 12, 21; 572 NW2d 222 (1997). Although statutory interpretation is a question of law subject to review de novo, this Court ordinarily will defer to the construction placed on statutory provi sions by the governmental agency charged with applying them unless the agency interpretation is clearly wrong. Attorney General, supra. However, an agency’s initial interpretation of new legislation is not entitled to the same measure of deference that we would accord a longstanding administrative interpretation. In re Telecommunications Tariffs, supra. But, “[m]erely establishing that another interpretation is plausible is not sufficient to meet the burden of establishing by clear and convincing evidence that the psc’s interpretation of the statute is unlawful or unreasonable.” Attorney General, supra at 155.
Ameritech again argues, as it did below, that in enacting § 312b the Legislature unambiguously intended to prohibit, at least until July 1, 1997, the implementation of intraLATA toll dialing parity for more than ten percent of customers to the extent that Ameritech is prohibited by law from providing interLATA service. Ameritech contends that, to this extent, § 312b nullified the PSC’s 1994 and 1995 orders requiring full implementation of intraLATA toll dialing parity. Ameritech argues that, accordingly, as of the December 19, 1995, date of the grandfather clause contained in § 271(e)(2)(B) of the fta, there was no longer a valid psc order for full intraLATA toll dialing parity. Ameritech contends that the PSC’s 1996 orders are new orders that do not come with the grandfather clause contained in § 271(e)(2)(B) of the fta. Ameritech argues that the psc’s 1996 orders are, therefore, preempted under § 271(e)(2)(B) of the fta and must be reversed.
The PSC again contends that § 312b is ambiguous concerning the time when full intraLATA toll dialing parity is required. The PSC contends that it reasonably construed § 312b as providing a temporary phase-in schedule that simply deferred until May 2, 1996, the PSC’s order requiring implementation of full intraLATA toll dialing parity. The PSC contends that this Court should defer to the PSC’s reasonable construction of § 312b. The PSC argues that its 1994 and 1995 orders, as modified by § 312b, are within the December 19, 1995, date contained in the grandfather clause in § 271(e)(2)(B) of the fta. The PSC argues that its 1996 orders are not preempted by § 271(e)(2)(B) because they are simply ancillary orders requiring Ameritech to comply with its 1994 and 1995 orders. The Attorney General, MCI, and AT&T of Michigan essentially reiterate the PSC’s arguments.
A
We first consider the issue of statutory construction raised by Ameritech.
The primary goal of statutory interpretation is to ascertain and give effect to the Legislature’s intent. Smith v Globe Life Ins Co, 223 Mich App 264, 276; 565 NW2d 877 (1997). The first criterion in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The Legislature is presumed to have intended the meaning it plainly expressed. Smith, supra. If the plain and ordinary meaning of the statutory language is clear, then judicial construction is neither necessary nor permitted. Id. at 276-277. However, if reasonable minds can differ with respect to the meaning of a statute, judicial construction is appropriate. Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). “[Statutes that relate to the same subject mat ter should be read, construed, and applied together to distill the Legislature’s intention . . . Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 427; 565 NW2d 844 (1997). With these principles in mind, we turn to the plain language of those sections of the mta that relate to the subject of intraLATA toll dialing parity, i.e., not only § 312b, but § 312a as well. We again set forth the text of these statutes below:
Sec. 312a. Effective January 1, 1996, if a waiver to the inter-LATA prohibitions has been granted for a specific service area and the service area has 2 or more providers of local exchange service, the provider of basic local exchange service shall provide 1 + intra-LATA toll dialing parity within the service area that is subject to the waiver.
Sec. 312b. (1) Except as otherwise provided in subsection (2) or (3), a provider of basic local exchange service shall provide 1 + intra-LATA toll dialing parity and shall provide inter-LATA toll service to an equal percentage of customers within the same service exchange on the following dates:
(a) To 10% of the customers by January 1, 1996.
(b) To 20% of the customers by February 1, 1996.
(c) To 30% of the customers by March 1, 1996.
(d) To 40% of the customers by April 1, 1996.
(e) To 50% percent of the customers by May 1, 1996.
(2) If the inter-LATA prohibitions are removed, the commission, shall immediately order the providers of basic local exchange service to provide 1 + intra-LATA toll dialing parity.
(3) Except for subsection (l)(a), subsection (1) does not apply to the extent that a provider is prohibited by law from providing either 1 + intra-LATA toll dialing parity or inter-LATA toll service as provided under subsection (1).
(4) Except as otherwise provided by this section, this section does not alter or void any orders of the commission regarding 1 + intra-LATA toll dialing parity issued on or before June 1, 1995.
(5) The commission shall immediately take the necessary actions to receive the federal waivers needed to implement this section.
(6) This section does not apply to a provider of basic local exchange service with less than 250,000 access lines.
We also again note that the Legislature specifically defined “inter-LATA prohibitions” to mean the prohibitions on interLATA service contained in the AT&T consent decree.
When these sections are construed together, we do not find the plain language of § 312a and § 312b to be ambiguous. Specifically, under § 312a, a local carrier must provide intraLATA toll dialing parity for a particular area “if a waiver to the inter-LATA prohibitions [contained in the AT&T consent decree] has been granted for a specific service area and the service area has 2 or more providers of local exchange service . . . .”
Under § 312b(1)(a) and (3), a local carrier has an unconditional obligation to provide intraLATA toll dialing parity and interLATA service to ten percent of customers by January 1, 1996. Under § 312b(1)(b)-(e) and (3), the carrier has a further obligation to provide intraLATA toll dialing parity and interLATA service to twenty percent of customers by February 1, 1996, thirty percent of customers by March 1, 1996, forty percent of customers by April 1, 1996, and finally fifty percent of customers by May 1, 1996, unless the provider is prohibited by law from providing either intraLATA toll dialing parity or interLATA service in accordance with this schedule. Finally, under § 312b(2), the PSC shall immediately order a local provider to provide intraLATA toll dialing parity once “the inter-LATA prohibitions [contained in the AT&T consent decree] are removed . . . .”
Thus, we conclude from the plain language of these sections that, except for ten percent of customers, the Legislature intended that Ameritech provide intraLATA toll dialing parity when the conditions specified in § 312a and § 312b — primarily interLATA relief— were satisfied. Our conclusion in this regard is bolstered by § 312b(5), which provides that the PSC “shall immediately take the necessary actions to receive the federal waivers needed to implement [§ 312b].”
The PSC has focused on the language of § 312b(4):
Except as otherwise provided by this section, this section does not alter or void any orders of the commission regarding 1 + intra-LATA toll dialing parity issued on or before June 1, 1995.
The PSC interprets § 312b(4) as affecting only the psc’s implementation schedule between January 1 and May 1, 1996, and contends that its orders requiring full implementation of intraLATA toll dialing parity were once again effective on May 2, 1996. However, § 312b(4) does not provide “[e]xcept as otherwise provided by subsection one” or “[e]xcept as otherwise provided by the schedule set forth in subsection one.” Rather, § 312b(4) provides “[e]xcept as otherwise provided by this section,” this “section” being § 312b in its entirety. As explained above, under § 312b(l) and (3), Ameritech is required to provide intraLATA toll dialing parity to no more than ten percent of customers after January 1, 1996, as long as Ameritech is prohibited by law from providing either intraLATA toll dialing parity or interLATA service in accordance with the schedule set forth in § 312b(l). Under § 312b(2), the PSC cannot order Ameritech to provide intraLATA toll dialing parity until “the inter-LATA prohibitions [contained in the AT&T consent decree] are removed . . . .” We find the plain language of § 312b(2) dispositive. In light of this language, we further find unwarranted the PSC’s conclusion that its orders requiring full intraLATA toll dialing parity somehow became effective again on May 2, 1996, when the interLATA prohibitions contained in the AT&T consent decree had not been removed.
The psc also contends that the legislative history of § 312b supports its interpretation of this section. In ascertaining legislative intent, this Court may examine both the legislative history of the act and journals chronicling this history. Jenks v Brown, 219 Mich App 415, 418; 557 NW2d 114 (1996). In this case, what eventually became Act 216 was introduced in the Senate on October 5, 1995, as Senate Bill (SB) 722. As introduced, SB 722 contained only § 312a. On October 26, 1995, the Senate passed a substitute for SB 722, again containing only § 312a, which provided in full as follows:
Sec 312a. (1) Effective January 1, 1996, if a waiver to the inter-LATA prohibitions has been granted for a specific service area and the service area has 2 or more providers of local exchange service, the provider of basic local exchange service shall provide 1 + intra-LATA toll dialing parity within the service area that is subject to the waiver.
(2) Except as provided in subsection (1), until the interlata prohibitions are removed for providers of basic local exchange service, a provider of basic local exchange service is not required to provide 1 + intra-LATA toll dialing parity. If the inter-LATA prohibitions are removed, then a provider of basic local exchange service shall offer to other providers 1 + intra-LATA toll dialing parity.
(3) All orders of the commission providing for 1 + intraLATA toll dialing parity issued before January 1, 1996, shall remain in effect to the extent that they are not in conflict or inconsistent with this section. [Emphasis added.]
As indicated previously, the psc has relied on the fact that the Legislature did not ultimately enact the italicized language as part of § 312a or § 312b as support for its contention that the Legislature did not therefore intend to inextricably link intraLATA dialing parity with interLATA relief.
However, after the Senate passed the substitute for SB 722 on October 26, 1995, the Senate then sent this bill to the House, which adopted a second substitute known as SB 722 (Substitute H-1). A November 3, 1995, legislative analysis explains that SB 722 (Substitute H-1) would amend the mta, in part, to “[pjrovide for intra-LATA dial-1 parity under certain conditions.” This legislative analysis goes on to explain the conditions under which SB 722 (Substitute H-l) would provide for intraLATA toll dialing parity:
Currently, a federal consent decree dating from the breakup of American Telephone and Telegraph Co. in the early 1980s prohibits certain local exchange service providers from offering inter-LATA toll service (long distance between local access and transport areas). The bill would provide that if those prohibitions were removed, the psc would immediately order the providers of intra-LATA toll service to provide dial-1 parity to other providers (Dial-1 parity refers to the ability to make a toll call without having to dial an access code or extra digits if the caller chose a telephone company other than the local exchange carriers.) The bill would require the psc to immediately take necessary actions to seek a federal waiver to allow the bill’s dial-1 parity provisions to take effect (i.e., petition the federal court to lift the inter-LATA prohibitions).
The bill would provide for a phase-in of both intra-LATA dialing parity and the provision of inter-LATA toll service by a provider of basic local exchange service, by requiring those services be provided to 10 percent of customers within the same service exchange by January 1, 1996; to 20 percent by February 1, 1996; and so forth, so that by May 1, 1996, both would be in place for up to 50 percent of customers within the same service area. However, only the first step in the phase-in (10 percent by January 1, 1996) would apply if the federal prohibitions were not lifted or waived.
Further, effective January 1, 1996, if a waiver to the federal inter-LATA prohibitions had been granted for a specific service area where there were two or more providers of local service in operation, a provider of local exchange service would be required to provide dial-1 intra-LATA parity within that service area.
All orders of the PSC providing for intra-LATA dial-1 parity issued before June 30, 1996, would remain in effect to the extent that they were not in conflict or inconsistent with the bill’s dial-1 parity provisions. Further, the intra-LATA dial-1 parity provisions would not apply to providers of basic local exchange service with less than 250,000 access lines. [ ]
The November 3, 1995, legislative analysis explains that SB 722 (Substitute H-l) was a response to the psc’s orders requiring local carriers such as Ameritech to implement intraLATA toll dialing parity by January 1, 1996:
In a related issue, some are concerned about the effect of a psc order which would institute “Dial-1 parity” on January 1, 1996. “Dial-1 parity” would require that customer’s [sic] be able to make a “short haul long distance call” (a call which originates and terminates within the same area code or lata) without requiring the caller to dial a five-digit access number in order to access his or her long-distance company. The psc order would require that a customer be able to access his or her long-distance carrier of choice for such calls simply by dialing 1 plus the phone number. It is argued by some that implementing dial-1 parity without also allowing local access companies, like Ameritech, to have access to long-distance markets at the same time would be unfair. [ ]
Finally, the November 3, 1995, analysis describes the arguments for and against SB 722 (Substitute H-1), both of which acknowledge that the bill links the provision of intraLATA toll dialing parity with interLATA relief:
ARGUMENTS:
For.
The bill would link dial-1 intra-LATA parity for inter-exchange carriers, such as AT&T or MCI, with lifting of the inter-LATA toll service prohibitions on local exchange companies, like Ameritech or GTE. This would effectively negate the psc’s order to implement dial-1 parity on January 1, 1996. Until federal inter-LATA restrictions are lifted, local phone providers could maintain their advantage in the intraLATA market, thus ensuring a level playing field. Linkage of these issues is imperative to protect Michigan companies and workers as competition is phased in.
Against:
The bill would block the implementation of dial-1 parity for intra-LATA telephone service which is scheduled for implementation by the PSC on January 1, 1996. Illinois and Wisconsin will both require that competition be introduced into the intra-LATA toll market by 1996. Michigan, however, under the bill, would set up a graduated implementation of dial-1 parity, only 10 percent of which would be mandatory, until such time as the Congress or the federal courts lift the prohibitions of a federal consent degree [sic] entered by some of the local exchange providers in the early 1980s.
There is no reason to allow the local exchange providers to continue their virtual monopoly on intra-LATA toll service. The local exchange providers do not need to have access to the long distance market in order to allow competition to flourish in the local market. The local exchange providers have all of the equipment and technology necessary to allow them to enter the long distance market as soon [sic] they are released from the restrictions on the consent decree. On the other hand, current long distance providers and others who wish to enter the local market will be unable to do so without using the facilities owned by the existing local exchange providers. This gives the current local exchange providers a significant advantage should both dial-1 parity and release from the consent decree occur at the same time.
Response:
The bill would require that the implementation of dial-1 parity be linked to removal of the restrictions against the local exchange providers which bar them from offering long distance service to their customers. The restrictions on these local exchange providers would prevent them from successfully competing with other providers who would otherwise be able to offer customers both long distance and local service as a package, while the local exchange providers would be unable to offer long distance service. Allowing the other companies to have a head start would be unfair. Without linkage of dial-1 parity and release from the federal restrictions on the provision of inter-LATA toll service, new competitors in the local exchange market could “cream-skim” the most lucrative customers by offering a package of long-distance and local service, while the larger current local providers would be bar [sic] from offering a similar competitive package.
The bill’s provisions would also have the effect of forcing the PSC to help to seek a waiver of the consent decree which currently binds Ameritech. By involving the PSC, the bill will hopefully help to speed the process of giving Ameritech the opportunity to compete on equal footing with the other companies.] ]
On December 27, 1995, the Senate completed a summary of SB 722, as enrolled. The summary noted that SB 722, as enrolled, provided for “intra-LATA ‘dial-1 parity’ under certain conditions.” The summary recapitulated the intraLATA toll dialing parity provisions found in SB 722, as enrolled, as follows:
The bill requires that, effective January 1, 1996, a provider of basic local exchange service provide intra-LATA dial-1 parity within the service areas, if a waiver to the interLATA prohibitions is granted for a specific service area and the service area has two or more providers of basic local exchange service.
A provider of basic local exchange service must provide intra-LATA dial-1 parity and provide inter-LATA toll service to an equal percentage of customers within the same service exchange on the following dates:
- To 10% of the customers by January 1, 1996.
- To 20% of the customers by February 1, 1996.
- To 30% of the customers by March 1, 1996.
- To 40% of the customers by April 1, 1996.
- To 50% of the customers by May 1, 1996.
Except for the 10% requirement on January 1, 1996, this requirement does not apply to the extent that a provider is prohibited by law from providing either intra-LATA dial-1 parity or inter-LATA toll service.
If the inter-LATA prohibitions are removed, the psc must immediately order providers of basic local exchange service to provide intra-LATA dial-1 parity.
The bill’s dial-1 parity provisions do not alter or void any psc orders regarding dial-1 parity issued on or before June 1, 1995, nor do they apply to a provider of basic local exchange service with fewer than 250,000 access lines.p[ ]
Thus, contrary to the psc’s contention, we believe that the legislative history and analyses of § 312a and § 312b clearly indicate that, except for ten percent of customers, the Legislature intended to link intraLATA toll dialing parity to interLATA relief.
Finally, we note that in construing a statute, deference is given to an administrative agency’s decision, provided that its construction is consistent with the purpose and policies of the statute itself. Empire Mining, supra at 416. In this case, the psc found that its construction of § 312b was consistent with the policy of encouraging competition and new providers embodied in the mta. However, despite these general policies, the plain and specific language of § 312a and § 312b embodies an express policy choice indicating that, except for ten percent of customers, the Legisla ture did not intend to encourage competition and new providers in the intraLATA toll dialing market to the extent that a local carrier is prohibited from providing interLATA service. Thus, the PSC’s construction of § 312a and § 312b is inconsistent with the policies actually embodied in those sections.
In summary, we conclude that Ameritech has correctly interpreted § 312a and § 312b. Attorney General, supra. The plain language of, and policies embodied in, § 312a and § 312b, as well as the legislative history of these sections, clearly indicate that except for ten percent of customers, the Legislature intended to link intraLATA toll dialing parity with interLATA relief. Thus, we conclude that the PSC’s interpretation of these sections is clearly wrong. Attorney General, supra.
B
We next consider the effect of the February 8, 1996, enactment of § 271 of the fta on § 312a and § 312b.
Under § 271(a), a Bell operating company may provide interLATA service only as provided in § 271. Under § 271(f), post-February 8, 1996, federal court orders entered pursuant to the AT&T consent decree that remove the interLATA restrictions imposed on the Bell operating companies are superseded by § 271(a). Under § 271(e)(2)(A), a Bell operating company granted the authority to provide interLATA service under § 271 shall also provide intraLATA toll dialing parity. Finally, under the general rule stated in § 271(e)(2)(B), a state may not require a Bell operating company to implement intraLATA toll dialing parity before the earlier of the time when the Bell operating company is granted the authority under § 271 of the FTA to provide interLATA service or February 8, 1999. However, in order to avoid the preemptive effect of this general rule, § 271(e)(2)(B) also provides a grandfather clause containing two exceptions whereby a state can order a Bell operating company to implement intraLATA toll dialing parity before the times otherwise specified in the general rule: “Except for single-LATA States and States that have issued an order by December 19, 1995, requiring a Bell operating company to implement intraLATA toll dialing parity . . . .” See, generally, 47 USC 271(a), (e)(2)(A) and (B), and (f); see also Bell Atlantic, supra; 141 Cong Rec, S 8348-8349 (daily ed, June 14, 1995).
In Bell Atlantic, the federal court construed the grandfather clause. In that case, the New Jersey Board of Public Utilities (bpu) issued an order on December 14, 1995, that approved both intraLATA toll dialing parity and the publication of proposed rules for the implementation of intraLATA toll dialing parity. Bell Atlantic, supra at 611. The rules were eventually adopted on August 5, 1996, including a rule providing that intraLATA toll dialing parity would be implemented on May 5, 1997. Id. at 612. Plaintiff Bell Atlantic, a Bell operating company, contended that the rule providing for implementation of intraLATA toll dialing parity on May 5, 1997, was preempted by § 271(e)(2)(B) of the FTA. Id. The BPU contended that because its December 14, 1995, order was “grandfathered” under § 271(e)(2)(B) of the FTA, “it [§ 271 of the FTA] has no impact on the implementation of that policy decision and these rules are thus unaffected by any provision in the [FTA].” Id.
The federal district court agreed, ruling that “[g]iven the plain meaning of the statute and the clear mandate of the bpu Order, the bpu met the requirements of § 271(e)(2)(B) by issuing its December 14, 1995 order. Therefore, the implementation date of May 5, 1997, will not be disturbed by this Court.” Id. at 616. In so ruling, the federal court stated:
Simply put, the grandfather clause allowed those states who had initiated proceedings regarding [intraiATA toll dialing parity] and had ordered that [intraiATA toll dialing parity] would be implemented in that state to continue doing what they started and to utilize their own timeframes. . . .
* * *
More specific to this Court’s inquiry, grandfather provisions which prevent preemption must not be given a narrow construction. . . .
* * *
. . . All the grandfather clause to the Act requires is that a state determine whether it will proceed with [intraiATA toll dialing parity] and publish an order to that effect prior to December 19, 1995.
* * *
. . . There is a strong implication, then, that a state issuing an order before the December 1995 date would be free to actively implement [intraiATA toll dialing parity] at any time that state’s public utility commission chooses. The issuance of the order requiring [intraiATA toll dialing parity] must have occurred before December 19, 1995, but the statute sets no deadline for the implementation of that requirement after the order has been issued.
... It is clear that actual implementation of a program was not required under the grandfather clause. The deadline was based “on the states’ issuing the order, not the effective date.” [Id. at 613-615 (emphasis in original).]
Thus, Bell Atlantic makes clear that under the grandfather clause a state may proceed to actually implement intraLATA toll dialing parity after December 19, 1995, as long as the state issued the order providing for intraLATA toll dialing parity before December 19, 1995. In Bell Atlantic, the order under consideration was a state administrative order. In this case, we are considering § 312a and § 312b. The question thus arises whether state statutes can constitute an “order” under the grandfather clause. The word “order” is undefined in § 271(e)(2)(B) of the fta. However, as explained in Marcelle v Taubman, 224 Mich App 215, 219; 568 NW2d 393 (1997):
[S]imply because a phrase is undefined does not render a statute ambiguous. . . . Rather, undefined words are given meaning as understood in common language, taking into consideration the text and subject matter relative to which they are employed. . . . Where a statute does not define one of its terms, it is customary to look to a dictionary for a definition.
In considering the text and subject matter relative to which “order” is employed, we note that § 271(e)(2)(B) speaks in terms of “States that have issued an order . . . .” Black’s Law Dictionary (6th ed) defines order, in part, as follows:
A mandate; precept; command or direction authoritatively given; rule or regulation. . . . Direction of a court or judge made or entered in writing, and not included in a judgment, which determines some point or directs some step in the proceedings. [Citation omitted.]
We conclude that § 312a and § 312b constitute state orders for the purpose of the grandfather clause. Our conclusion in this regard is confirmed by a June 14, 1995, Congressional Record excerpt of a discussion by Senators Breaux, Graham, and Leahy concerning the grandfather clause. We note that at the time of this discussion, the version of the grandfather clause under consideration provided for a June 1, 1996, cutoff date, rather than the enacted December 19, 1995, cutoff date:
Mr. graham: I briefly had an opportunity to look at the amendment. I asked for a copy to review it in more detail. Let me ask a question from the perspective of my State. The recent Florida legislature of this spring passed an interLATA dialing parity bill. The legislation goes into effect on January 1, 1996. What effect will this amendment have on my State’s ability to adopt dialing parity?
Mr. BREAUX: I will respond to the Senator by saying that we have tried to take into consideration two types of States in our amendment. The first would be about 10 States that are single-LATA states, which means they only have one division of what can happen in their States. That does not include Florida. The second category includes Florida— except States which have issued an order by June 1, 1996, requiring this dialing parity, those States would be able to go forward with those orders, and they would be able to implement those orders. . . . But the State of Florida would be able to go forward with that order and implement it. In essence, the State of Florida would be grandfathered in because they are a State that already issued the order at the State level.
Mr. graham: Well, I am not certain if they have issued an order or not. My information is that the legislation goes into effect on January 1, 1996. I am not certain if that is the threshold that brings a State into the category [sic] those which will still be allowed to exercise some degree of State regulation over dialing parity.
Mr. breaux: My answer to the Senator from Florida is simply, yes. The explanation is that it is based on the States issuing the order, not the effective date. The State of Florida, for instance, would have issued the order in a timely fashion in order to be one the excepted States.
Mr. LEAHY: If the Senator will yield, the Senator from Louisiana is absolutely correct. Florida, having ordered it, even though they have not implemented it, would be covered by the Breaux-Leahy amendment and would be protected. [141 Cong Rec, S 8349 (daily ed, June 14, 1995).]
Thus, pursuant to § 312a and § 312b, Michigan issued an order by December 19, 1995, providing for intraLATA toll dialing parity. It is true that, except for ten percent of customers, actual implementation of intraLATA toll dialing parity was linked to interLATA relief. However, “all the grandfather clause . . . requires is that a state determine whether it will proceed with [intraLATA toll dialing parity] and publish an order to that effect prior to December 19, 1995.” Bell Atlantic, swpra at 614. The deadline is based “ ‘on the states’ issuing the order, not the effective date.” Id. at 615 (quoting 141 Cong Rec, S 8350 [daily ed, June 14, 1995]). Here, in enacting § 312a and § 312b, Michigan determined that it would proceed with intraLATA toll dialing parity and published an order to that effect before December 19, 1995. However, except for ten percent of customers, Michigan made a policy choice that linked the actual implementation of intraLATA toll dialing parity to interLATA relief. Thus, we conclude that § 312a and § 312b are within the grandfather clause because they constituted an “order by December 19, 1995, requiring a Bell operating company to implement intraLATA toll dialing parity.”
c
The PSC’s 1994 and March 1995 orders also constitute state orders within the grandfather clause. Bell Atlantic, supra. The psc’s 1996 orders simply require Ameritech to comply with these orders. Thus, we next consider the effect of § 312a and § 312b on the PSC’s 1994, March 1995, and 1996 orders.
The psc’s 1994 and March 1995 orders provide for intraLATA toll dialing parity. These orders further specify a schedule for the time when Ameritech must implement intraLATA toll dialing parity, i.e., on January 1, 1996, in those offices in which it was technically possible to convert to intraLATA toll dialing parity and thereafter pursuant to a firm conversion schedule for those offices in which it was not technically possible to so convert on January 1, 1996. However, effective November 30, 1995, the Legislature enacted § 312a and § 312b. Like the psc’s 1994 and March 1995 orders, these statutes also provide for intraLATA toll dialing parity. However, § 312a and § 312b differ from the psc’s 1994 and March 1995 orders in that the statutes provide a schedule different from that contained in the psc’s orders concerning when Ameritech is required to implement intraLATA toll dialing parity in Michigan. “To the extent that an administrative order conflicts with a statute, the order is void.” Manufacturers Nat’l Bank of Detroit v Dep’t of Natural Resources, 420 Mich 128, 146; 362 NW2d 572 (1984); see also MCL 484.312b(4); MSA 22.1469(312b)(4).
On the November 30, 1995, effective date of § 312a and § 312b, Ameritech was still prohibited by the AT&T consent decree from providing interLATA service. Thus, under § 312b(1) and (3), Ameritech was statutorily required to provide intraLATA toll dialing parity to only ten percent of its customers after January 1, 1996. Under § 312b(2), the PSC could not order Ameritech to provide full intraLATA toll dialing parity until the interLATA prohibitions contained in the AT&T consent decree were removed. Moreover, under § 312a, Ameritech was not statutorily required to provide full intraLATA toll dialing parity for a particular service area unless a waiver to the interLATA prohibitions contained in the AT&T consent decree was granted and the service area had two or more local providers. Thus, we conclude that after November 30, 1995, the psc’s 1994 and March 1995 orders were rendered void to the extent that the intraLATA toll dialing parity implementation schedule contained in those orders conflicted with and continues to conflict with the statutory implementation schedules contained in § 312b, repealed effective July 1, 1997, and § 312a. MCL 484.2312b(4); MSA 22.1469(312b)(4); Manufacturers Bank, supra.
The PSC’s 1996 orders required Ameritech to comply with the implementation schedule contained in the 1994 and March 1995 orders. Because we have determined that the psc’s previously ordered implementation schedule was rendered void because it conflicted with and continues to conflict with § 312b, repealed effective July 1, 1997, and § 312a, we conclude that the psc’s 1996 implementation compliance orders were unlawful or unreasonable. Attorney General, supra.
D
Ameritech also contends that this Court must reverse the psc’s imposition of a fifty-five percent discount on access charges. We agree. In the 1996 orders, the PSC ordered that Ameritech implement the fifty-five percent discount in those offices that did not convert to intraLATA toll dialing parity pursuant to the schedule set forth in the psc’s 1994 and March 1995 orders. However, as previously explained, we have determined that the intraLATA toll dialing parity implementation schedule contained in the psc’s 1994 and March 1995 orders was rendered void to the extent that this schedule conflicted and continues to conflict with § 312b, repealed effective July 1, 1997, and § 312a. We have also determined that the psc’s 1996 orders requiring Ameritech to comply with the void implementation schedule were unlawful or unreasonable. Under these circumstances, we likewise conclude that the imposition of a fifty-five percent discount on access charges was also unlawful or unreasonable. Attorney General, supra.
E
Finally, Ameritech contends that this Court must reverse the circuit court’s order of mandamus. We review the grant of a writ of mandamus for an abuse of discretion. Rhode v Dep’t of Corrections, 227 Mich App 174, 178; 578 NW2d 320 (1997). However, the central issue involved in this appeal involved statutory inteipretation, which is a question of law that we review de novo. Id. Having determined that Ameritech was not, and is not, required to comply with the psc’s unlawful or unreasonable 1996 orders, we also reverse the circuit court’s order issuing a writ of mandamus.
F
In summary, as explained more fully elsewhere in this opinion, § 312a and § 312b come within the grandfather clause contained in § 271(e)(2)(B) of the fta because these statutes constitute an order issued by Michigan “by December 19, 1995, requiring a Bell operating company to implement intraLATA toll dialing parity.” The intraLATA toll dialing parity implementation schedule contained in the PSC’s 1994 and March 1995 orders was thus rendered void to the extent that this schedule conflicted with the statutory implementation schedule contained in § 312b, repealed effective July 1, 1997, and continues to conflict with the schedule contained in § 312a. In its 1996 orders, the PSC unlawfully or unreasonably required Ameritech to comply with a void implementation schedule and unlawfully or unreasonably imposed a fifty-five percent discount on access charges because of Ameritech’s failure to comply with the void implementation schedule. We therefore reverse the PSC’s 1996 orders. We dissolve the stay issued in Docket No. 198706. Finally, we reverse the circuit court’s order of mandamus.
Reversed. Ameritech, being the prevailing party, may tax costs pursuant to MCR 7.219.
United States v American Telephone & Telegraph Co, 552 F Supp 131, 222 (D DC, 1982).
Id., n 1 at 223.
Id., n 2 at 139, n 19, 228, 232.
Id., n 3 at 141, 223, 226.
Id., n 11 at 140-141.
Id., n 12 at 140.
Id., n 13 at 141.
Id., n 14 at 143.
Id. at 141, 224, 227; see also Bell Atlantic-New Jersey, Inc v Tate, 962 F Supp 608, 611 (D NJ, 1997); United States v Western Electric Co, Inc, 669 F Supp 990, 993-994 (D DC, 1983); GTE North Inc v Public Service Comm, 215 Mich App 137, 140; 544 NW2d 678 (1996).
There are five latas in Michigan. GTE North, n 5 supra.
Bell Atlantic, n 5 supra; see also Western Electric, n 5 supra.
AT&T Co, supra at 227; see also Bell Atlantic, n 5 supra; Western Electric, n 5 supra; GTE North, n 5 supra.
AT&T Co, supra at 195, 231.
Bell Atlantic, n 5 supra; GTE North, n 5 supra.
GTE North, n 5 supra.
Id., n 15 at 144-149.
Id., n 16 at 150.
Id., n 17. Ameritech appealed the psc’s 1994 decisions, contending, in part, that the psc did not have the statutory authority under Act 179 to order the implementation of intraLATA toll dialing parity. This Court affirmed the psc’s 1994 decisions. GTE North, n 5 supra at 140. In particular, this Court found that the psc did have the statutory authority under Act 179 to order the implementation of intraLATA toll dialing parity. Id. at 153-154.
Ameritech appealed the psc’s March 1995 decision, raising issues concerning the task force report, the fifty-five percent discount, and certain procedures adopted by the psc for the implementation of intraLATA toll dialing parity. This Court subsequently affirmed. Ameritech Michigan v Public Service Comm, unpublished opinion per curiam of the Court of Appeals, issued February 7, 1997 (Pocket Nos. 184718, 186602).
MCL 484.2312a; MSA 22.1469(312a).
MCL 484.2312b; MSA 22.1469(312b).
The only express reference to intraLATA toll dialing parity found in Act 179 was a provision requiring the psc to report to the Legislature and Governor by January 1, 1994, regarding the effect of implementing intraLATA toll dialing parity. 1991 PA 179, MCL 484.2202(f)(x); MSA 22.1469(202)(f)(x); GTE North, n 5 supra at 142.
MCL 484.2604(1); MSA 22.1469(604)(1).
MCL 484.2604(2); MSA 22.1469(604)(2).
MCL 484.2102(l); MSA 22.1469(1), redesignated as MCL 484.2102(k); MSA 22.1469(102)(k), by 1998 PA 41.
See MCL 484.2101(2); MSA 22.1469(101)(2).
Ameritech Michigan v Public Service Comm, unpublished order of the Court of Appeals, entered December 4, 1996 (Docket No. 198706).
We preliminarily note that AT&T of Michigan raises a challenge to the constitutionality of § 312b(1). We note that the psc does not possess the power to determine the constitutionality of statutes. In re Federal Preemption Of Provisions Of The Motor Carrier Act, 223 Mich App 288, 303; 566 NW2d 299 (1997). Thus, in this case, the psc did not decide the constitutional issue raised on appeal by AT&T of Michigan. Accordingly, there is no determination by the psc for this Court to review with respect to this issue. Id. Moreover, direct challenges to the constitutionality of statutes belong in a different forum. Id. (citing Universal Am-Can, Ltd v Attorney General, 197 Mich App 34, 37-38; 494 NW2d 787 [1992]). Thus, we decline to address this issue. In re Federal Preemption, supra.
AT&T of Michigan also contends that in GTE North (this Court’s decision affirming the psc’s 1994 orders in this case, see n 18, supra), this Court decided the issue of the effect of § 312b on the psc’s orders adversely to Ameritech. AT&T of Michigan contends that, therefore, this Court is bound by the law of the case with regard to this issue. The law of the case doctrine provides that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue. Reeves v Cincinnati, Inc (After Remand), 208 Mich App 556, 559; 528 NW2d 787 (1995). Thus, a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case. Id. The doctrine applies to questions specifically decided in an earlier decision and to questions necessarily determined to arrive at that decision. Webb v Smith (After Second Remand), 224 Mich App 203, 209; 568 NW2d 378 (1997). In this case, we find no indication in GTE North that the panel specifically decided the issue of the effect of § 312b on the psc’s 1994 orders or that the panel necessarily decided this issue in order to arrive at its decision. See, generally, GTE North, supra. Indeed, we note that in Ameritech, supra at slip op p 11, n 1 (this Court’s decision affirming the fsc’s March 1995 order in this case, see n 19, supra), this Court specifically stated as follows:
The proceedings in GTE North, supra, were conducted pursuant to the former Michigan Telecommunications Act, 1991 PA 179, MCL 484.2101 et seg.; MSA 22.1469(101) et seg., effective January 1, 1993 [sic], which repealed and replaced public acts of 1883 and 1913 regulating telephone service. 1991 PA 179 ultimately lapsed after the instant appeals were filed, pursuant to a “sunset” expiration date of January 1, 1996, set forth in § 604 of the act, MCL 484.2604; MSA 22.1469(604). In its place, the Legislature has now enacted a new Michigan Telecommunications Act, 1995 PA 216, which is also codified at MCL 484.2101 et seg.; MSA 22.1469(101) et seg. Because the briefing in these appeals were completed before the enactment of 1995 PA 216, the new statutory provisions are not discussed herein and any statutory citations in this opinion only refer to 1991 PA 179.
Thus, we reject AT&T of Michigan’s law of the case argument.
Finally, AT&T of Michigan contends that in light of GTE North, this Court is precluded under the doctrine of res judicata or collateral estoppel from considering the issue of the effect of § 312b on the psc’s orders. We believe that AT&T of Michigan confuses these doctrines with the law of the case doctrine. Thus, we likewise decline to consider these issues.
We note that § 312b(1), repealed July 1, 1997, provided that a local carrier “shall provide 1 + intra-LATA toll dialing parity and shall provide inter-LATA toll service to an equal percentage of customers” as provided by the schedule contained in § 312b(1)(a)-(e). Ameritech concedes that since January 1, 1996, it has provided intraLATA toll dialing parity to ten percent of its customers even though it has been prohibited by either the AT&T consent decree or § 271 of the fta from providing interLATA service to ten percent of its customers. Ameritech raises no issue with respect to its continued provision of intraLATA toll dialing parity to ten percent of its customers. Thus, we need not decide whether Ameritech’s obligation to provide intraLATA toll dialing parity to ten percent of its customers under the schedule set forth in § 312b(1)(a) was independent of or dependent on Ameritech’s ability to provide interLATA service to its customers.
House Legislative Analysis, SB 722 (Substitute H-1), November 3, 1995.
See n 30, supra.
See n 30, supra.
See n 30, supra.
Senate Legislative Analysis, SB 722, December 27, 1995.
See n 34, supra.
See n 34, supra.
See, generally, MCL 484.2101; MSA 22.1469(101).
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Markey, P.J.
Defendant Eugene J. Rogers appeals as of right and plaintiff Darcel Phinisee cross appeals as of right from the trial court’s order partially granting and partially denying defendant’s motion for summary disposition in this action to determine filiation and support. Plaintiff further cross appeals from the court’s order requiring defendant to make support payments to plaintiff from the time plaintiff filed her complaint until she reaches 19V2 years of age and denying plaintiff’s request for attorney fees. We affirm in part, reverse in part, and remand.
Plaintiff was bom in 1975. Her mother claimed that defendant was plaintiff’s father and commenced a paternity action against him in 1976. In that case, the trial court ruled that defendant was not plaintiff’s father, but no final order was ever entered in the action. In December 1993, plaintiff turned eighteen years old. In February 1994, plaintiff commenced an action in her own name to establish defendant’s paternity and to seek support from him. Her complaint contained claims for breach of a common-law duty to support a minor child and breach of the Paternity Act, MCL 722.714; MSA 25.494.
In response, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(5) and (7), alleging that plaintiff’s complaint was barred by virtue of res judicata and the express terms of the Paternity Act. The trial court issued its opinion and order granting summary disposition to defendant on plaintiff’s Paternity Act claim but denying summary disposition as to plaintiff’s common-law claim upon finding a lack of privity between plaintiff and her mother with respect to the 1976 paternity action.
i
First, we address defendant’s claim on appeal that res judicata prevents plaintiff from bringing the present cause of action because plaintiff’s mother commenced a paternity action against defendant in 1976, in which he was found not to be plaintiff’s biological father. We disagree. For res judicata to apply, defendant must establish the following: (1) the former suit was decided on the merits, (2) the issues in the second action were or could have been resolved im th.e former action, and (3) both actions involved the same parties or their privies. Energy Reserves, Inc v Consumers Power Co, 221 Mich App 210, 215-216; 561 NW2d 854 (1997). Because res judicata is a question of law, we review de novo its application as well as the court’s action on a motion for summary disposition.
In light of this Court’s decision in Spada v Pauley, 149 Mich App 196, 199, n 1, 204-205; 385 NW2d 746 (1986), we find that the doctrine of res judicata is inapplicable here for several reasons. First, plaintiff was not a party or a privy to her mother’s 1976 action. Other jurisdictions have come to the same conclusion, many of them relying on the following passage from Spada, supra at 204-205:
The interests of the parties to a paternity action are not necessarily identical to the illegitimate child’s interests nor are they likely to be sufficiently similar to afford the child a forum to protect his rights under the Paternity Act. A mother may fail to initiate a paternity proceeding for various reasons. She may wish to avoid any contact with the father, she may wish to avoid disapproval of the community or her family, she may be able to support the child and not foresee a change in her circumstances, she may be subject to emotional strain and confusion that often attends the birth of an illegitimate child, or she may have a continuing relation with or affection for the father. . .. Also, the state’s interest does not coincide with the illegitimate child’s interest. The Department of Social Services is concerned with its own economic interest. A child’s interests are much broader.
See SOV v Colorado, 914 P2d 355, 362, n 10 (Colo, 1996) (citing, for example, twelve cases from various jurisdictions where it is “well recognized” that a child’s interests in a paternity action differ from those of the child’s mother); Johnson v Norman, 66 Ohio St 2d 186, 190; 421 NE2d 124 (1981) (“[p]rivity does not generally arise from the relationship between parent and child,” so the dismissal with prejudice of the mother’s paternity action in no way affected the child’s common-law action for paternity and support); GEB v SRW, 422 Mass 158, 160-165; 661 NE2d 646 (1996) (settlement agreement between parents regarding paternity was not binding on the nonparty child because the mother’s and child’s interests are not the same and no guardian was appointed to represent the child), citing, e.g., Symonds v Symonds, 385 Mass 540, 545, n 7; 432 NE2d 700 (1982) (“[a]ny determination that the husband is not the father of a child bom to his wife during marriage is, of course, not binding on the child who is not a party to the proceeding”).
In Sloan v Madison Heights, 425 Mich 288, 295-296; 389 NW2d 418 (1986), our Supreme Court defined “privity” as follows: “In its broadest sense, privity has been defined as ‘mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.’ ” (Citation omitted). Black’s Law Dictionary (6th ed), p 1199, defines privity as
mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right. . . . [It] signifies that [the] relationship between two or more persons is such that a judgment involving one of them may justly be conclusive upon [the] other, although [the] other was not a party to lawsuit.
“Privity between a party and a non-party requires both a ‘substantial identity of interests’ and a ‘working or functional relationship ... in which the inter ests of the non-party are presented and protected by the party in the litigation.’ ” SOV, supra at 360, quoting Public Service Co v Osmose Wood Preserving, Inc, 813 P2d 785, 787 (Colo App, 1991).
We agree with Spada, supra, and the cases cited above, that plaintiff and plaintiff’s mother, who filed the earlier unsuccessful paternity action against defendant, are not and were not in privity with each other. Moreover, there is no evidence on the record that a final, enforceable judgment was entered in the earlier paternity action, which would also preclude the application of res judicata. SOV, supra at 357, 359. Additionally, plaintiff could not have been a party to the original paternity action because she was not eighteen years of age after August 1984 and before June 1986, as required under MCL 722.714(1); MSA 25.494(1) of the Paternity Act. Accord SOV, supra at 360-361. We also agree with those courts that have recognized that an illegitimate child’s interests in establishing paternity, which may extend not only to immediate support payments but also to future social security benefits and inheritance through the biological father, differ from the mother’s interests in establishing paternity, which may be focused more on immediate financial concerns. Furthermore, extremely accurate scientific testing developed since 1976 now permits courts to confidently determine paternity. We will not require the trial court to shut its eyes to conclusive medical evidence establishing paternity merely because plaintiff’s mother did not have access to the same information in 1976. Accordingly, we find that res judicata does not bar plaintiff’s action against defendant.
n
Additionally, defendant and plaintiff both raise issues concerning the trial court’s partial grant and partial denial of defendant’s motion for summary disposition. Plaintiff brought her paternity and support claims under both the common law and the Paternity Act. The trial court granted defendant’s motion for summary disposition as to plaintiff’s cause of action under the Paternity Act but denied it with regard to plaintiffs cause of action brought under common law. We review de novo a trial court’s ruling regarding a motion for summary disposition. Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499 NW2d 419 (1993), aff’d 446 Mich 482; 521 NW2d 266 (1994); see also Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994).
The Paternity Act, MCL 722.714; MSA 25.494, provided, in relevant part, at the time plaintiff commenced this action:
(1) An action under this act shall be brought by the mother, the father, a child who became 18 years of age after August 15, 1984 and before June 2, 1986, or the department of social services as provided in this act. . . .
(3) An action under this act may be instituted during the pregnancy of the child’s mother, at any time before the child reaches 18 years of age, or for a child who became 18 years of age after August 15, 1984 and before June 2, 1986, before March 1, 1993. . . .[ ]
Plaintiff turned eighteen on December 9, 1993. She filed her complaint in this action on February 8, 1994. Clearly, she did not fall within the provisions established under the act. Therefore, the trial court did not err in granting defendant’s motion for summary disposition as to plaintiff’s cause of action under the Paternity Act.
Paternity actions are generally covered by statute; however, because the Paternity Act does not afford an illegitimate child the same rights as a legitimate child to bring an action after age eighteen, we have found a common-law right exists for an illegitimate child over age eighteen to bring a suit for support as provided for and limited by the general disability tolling provision of MCL 600.5851(1); MSA 27A.5851(1). Spada, supra at 206-207; accord Johnson, supra at 189, relying on the United States Supreme Court’s decision in Gomez v Perez, 409 US 535; 93 S Ct 872; 35 L Ed 2d 56 (1973); Franklin v Julian, 30 Ohio St 2d 228; 283 NE2d 813 (1972) (illegitimate children have the same right as legitimate children to bring a civil action against their biological fathers for support and maintenance). In Gomez, supra at 538, the United States Supreme Court held that it is an unconstitutional denial of equal protection to grant legitimate children, but deny illegitimate children, a judicially enforceable right to seek support from their biological fathers. See Spada, supra at 203.
This language from Gomez has been interpreted by courts to mean that an illegitimate child has the same common law right to support from his father as a legitimate child, e.g., JMS v Benson (App, 1979), 91 Wis 2d 526; 283 NW2d 465, 471; [ ] and that an illegitimate child has a right to bring an action to determine paternity regardless of the existence of an authorizing state statute, e.g., State v Douty (1979), 92 Wash 2d 930, 934; 603 P2d 373; Wynn v Wynn (Tex Civ App 1979), 587 SW2d 790, 793. [Johnson, supra at 189, n 3. (Emphasis and footnote added).]
We agree with the court in Johnson, supra, that while there are two distinct proceedings in which to establish the paternity of an illegitimate child, i.e., a paternity action and a finding of paternity incident to an illegitimate child’s action for support and maintenance, nothing precludes the illegitimate child from pursuing his common-law right to support. Accord Franklin, supra. Thus, the trial court did not err in denying defendant’s motion for summary disposition as to plaintiff’s cause of action brought under the common law.
in
On cross appeal, plaintiff also asserts that the trial court erred in limiting her damages to child support payments from the date of the filing of the lawsuit until age 19V2 years old. We agree. On appeal, we review a question of law de novo, Rapistan Corp v Michaels, 203 Mich App 301, 306; 511 NW2d 918 (1994), but the decision to award child support will not be reversed absent an abuse of discretion. Ghidotti v Barber (On Remand), 222 Mich App 373, 377; 564 NW2d 141 (1997).
Obviously, it makes no sense whatsoever to recognize a cause of action for an illegitimate child against his parent for support and permit that suit to be instituted within one year after the child turns eighteen years old, and to then find that damages, i.e., support payments, are limited to the period from the date of the filing of the complaint until the child turns eighteen or 19V2. Plaintiffs right to child support payments is governed by MCL 722.3a; MSA 25.244(3a), which allows an award of support for a child who has reached eighteen years of age and is attending high school full time to continue until the child reaches the age of nineteen years and six months. Although plaintiff has no cause of action under the Paternity Act, we believe that the cases discussing the retroactive application of child support payments under that act are relevant because this is an analogous situation. Although nothing in the statute itself allows for support to be ordered retroactive to the child’s birth, case law interpreting the Paternity Act does.
In Thompson v Merritt, 192 Mich App 412, 420-422; 481 NW2d 735 (1991), one of the issues on appeal was whether the trial court erred in ordering the payment of child support retroactive to the child’s birth. In holding that the trial court did not err in doing so, this Court found that the order of retroactive support was not a modification of an existing order; therefore, it was appropriate. Id. Moreover, this Court has also held that “children bom out of wedlock [are] no less deserving of support than those children bom in wedlock.” Boyles v Brown, 69 Mich App 480, 483; 245 NW2d 100 (1976). A finding of paternity certainly contemplates that the finding relates back to the child’s birth. If a cause of action for paternity under the com mon law is preserved by the tolling provisions of MCL 600.5851(1); MSA 27A.5851(1), it must be assumed that appropriate damages can be sought, which in a paternity action, of course, means support from the time a child was bom. As noted in Seegert v Zietlow, 95 Ohio App 3d 451, 460; 642 NE2d 697 (1994):
Because the parents’ duty to support their children generally extends to the child’s eighteenth birthday ... it would be illogical to extend the statute of limitations beyond the child’s majority if the legislature contemplated that only current support be awarded in a paternity action. After a child has reached the age of majority, the putative parent would generally no longer have any duty to support that child. Thus, by extending the statute of limitations beyond the age of majority, when the parent no longer has any duty of support, it appears the legislature envisioned that back child support would be awarded in a parentage action.
We find the Seegert court’s reasoning persuasive and applicable. Here, if the Legislature had not envisioned the award of back child support in a paternity action, it would have made no sense to extend the statute of limitations.
As the Seegert court further noted, id., and as this state also recognized in Whybra v Gustafson, 365 Mich 396, 400; 112 NW2d 503 (1961), and Spada, supra at 206-207, any rule prohibiting back child support in a paternity proceeding, thereby denying illegitimate children support after a paternity adjudication while allowing back child support in other proceedings, would appear to violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article 1, § 2 of the Michigan Constitution. Moreover, as previously noted, the Spada Court concluded that the general disability toll ing provisions apply. Further, in Dep’t of Social Services v Brewer, 180 Mich App 82; 446 NW2d 593 (1989), this Court held that the Family Support Act, MCL 552.451 et seq.; MSA 25.222(1) et seq., the provisions of which closely parallel MCL 722.3; MSA 25.244(3), authorizes the award of retroactive support commencing before the filing of the complaint. Accordingly we conclude that the trial court in the instant case erred in concluding that, as a matter of law, support is restricted to the period commencing with the filing of the complaint. While the court referred to the circumstances of the case, indicating it used its discretion, the complete colloquy indicates the court viewed the matter as a legal question regarding which there was no precedent. We remand for reconsideration of the issue of retroactive support for the period from plaintiff’s birth to the filing of her complaint. In reconsidering the issue, the court may consider any appropriate friend of the court support guidelines in effect for the relevant years, but may also consider the unique circumstances of this case.
IV
Finally, plaintiff on cross appeal contends that the trial court erred in denying her an award of attorney fees under MCL 600.2591; MSA 27A.2591 and MCR 2.313(C). We review under a clearly erroneous standard a trial court’s finding with regard to whether attorney fees should be awarded because a frivolous defense was presented. State Farm Fire & Casualty Co v Johnson, 187 Mich App 264, 268-269; 466 NW2d 287 (1991). We review under an abuse of discretion standard a court’s decision to award sanctions against a party for denying a request to admit that which is proved at trial. Richardson v Ryder Truck Rental, Inc, 213 Mich App 447, 456-458; 540 NW2d 696 (1995).
Plaintiff asserts that defendant’s defense was frivolous in two ways: (1) at trial defendant presented no evidence to rebut plaintiff’s introduction of blood test results indicating a 99.98 percent likelihood that defendant was plaintiff’s father; and (2) before trial, faced with the blood test results, defendant refused to affirmatively answer a request for admission that he was plaintiff’s biological father. Plaintiff overlooks the fact that throughout the trial and on appeal, defendant argued that plaintiff could not bring this action against him under either the Paternity Act or a common-law theory, or, in the alternative, that the action was barred by res judicata, presenting applicable case law to support his position. Therefore, defendant’s defenses cannot be said to be devoid of arguable legal merit because defendant offered reasonable bases for his belief that he could prevail in the matter. Therefore, the trial court did not err in denying plaintiff attorney fees under MCL 600.2591; MSA 27A.2591.
Plaintiff also asserted that she was entitled to sanctions pursuant to MCR 2.313(C), which states in relevant part:
Expenses on Failure to Admit. If a party denies the genuineness of a document, or the truth of a matter as requested under MCR 2.312, and if the party requesting the admission later proves the genuineness of the document or the truth of the matter, the requesting party may move for an order requiring the other party to pay the expenses incurred in making that proof, including attorney fees. The Court shaU enter the order unless it finds that
(3) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or
(4) there was other good reason for the failure to admit. [Emphasis added.]
Here, the lower court record reflects that a January 3, 1995, report from the National Legal Laboratories, Inc., sent to defendant’s counsel calculated defendant’s “probability of paternity” at 99.98 percent. On March 9, 1995, plaintiff submitted the following request for admission to defendant: “(1) Do you admit or deny that you are the biological father of plaintiff, Darcel Phinisee?” to which defendant answered “deny as untrue.” In a judgment dated October 12, 1995, entered after a jury trial held on this matter, the court set forth the jury’s finding that “Defendant, Eugene J. Rogers, is the biological father of plaintiff, Darcel Phinisee.”
In view of the laboratory report setting forth the overwhelming probability that defendant is plaintiffs father, certainly defendant had no reasonable ground to believe that he might prevail on that matter. For similar reasons, defendant simply could assert no good reason for failing to admit that fact. Defendant could have defended on the legal issue and conceded the factual issue, thereby averting what proved to be a clearly unwarranted trial. Consequently, we find that the trial court abused its discretion in failing to award sanctions pursuant to MCR 2.313(C) for defendant’s refusal to admit a fact proved at trial.
Affirmed in part, reversed in part, and remanded for farther proceedings consistent with this opinion. We do not retain jurisdiction.
Jansen, J., concurred.
At some point, the law must recognize the fact that a child’s interests in paternity litigation are much greater than the mother’s interest in continued support. “In addition to the right of the child to receive support many other present as well as future rights of the child are involved, depending on the facts and circumstances of a specific case.” Wolfe v Geno [(On Remand), 134 Mich App 433, 435-436; 351 NW2d 316 (1984)] (Cynar, J., dissenting).
Pursuant to 1996 PA 308, MCL 722.714; MSA 25.494 was amended effective June 1, 1997, to read as follows:
(1) An action under this act shall be brought in the circuit court by the mother, the father, a child who became 18 years of age after August 15, 1984 and before June 2, 1986, or the family independence agency as provided in this act. . . .
(2) An action is not required to be brought under this act if the child’s father acknowledges paternity under the acknowledgment of parentage act... .
(3) An action under this act may be commenced during the pregnancy of the child’s mother or at any time before the child reaches 18 years of age. For a child who became 18 years of age after August 15, 1984 and before June 2, 1986, an action under this act may be commenced before January 1, 1995. . . .
(10) If a determination of paternity is made under this act, the court may enter an order of filiation as provided in section 7. . . .
Other jurisdictions with statutes similar to our Paternity Act have held that an illegitimate child has no independent cause of action for paternity or support under the act. See, e.g., Johnson, supra at 189 (“[statutory paternity proceedings under R C Chapter 3111 are designed to provide a remedy for the mother, not the child”); GEB v SRW, supra.
MCL 600.5851(1); MSA 27A.5851(1) reads as follows:
Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852.
See also anno: Right of illegitimate child, to maintain action to determine paternity, 19 ALR4th 1082, § 6, and cases cited therein.
The Supreme Court held:
[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. . . . We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.
JMS, supra, was reversed by the Wisconsin Supreme Court in JMS v Benson, 98 Wis 2d 406, 413-415; 297 NW2d 18 (1980), but that case was itself subsequently overruled by the same court in In re Paternity of RWL, 116 Wis 2d 150, 162-163; 341 NW2d 682 (1984).
This is not to imply that whenever a putative father is faced with a paternity test yielding a probability of this magnitude, a denial of paternity is a basis for awarding sanctions. | [
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Per Curiam.
Plaintiff filed this action in order to recover under her insurance policy for losses and damages to her property, which resulted from a fire. The trial court denied defendant’s motion for summary disposition. Defendant appeals by leave granted, and we reverse and remand.
The facts in this case are not in dispute. Defendant issued an insurance policy to plaintiff for accidental loss and damage to the property located at 641 E. Ridgeway, Flint, Michigan. On July 19, 1994, a fire occurred on the property. On July 21, 1994, defendant received notice of the loss and of plaintiff’s intention to present a claim under the policy. On December 30, 1994, defendant denied liability under the policy.
On January 18, 1996, plaintiff filed this action to recover for the loss and damage sustained. In response, defendant filed a motion for summary disposition pursuant to the limitation term in its policy, which stated:
Suit Against Us. No action shall be brought unless there lias been compliance with the policy provisions. The action must be started within one year after the date of loss or damage.
The trial court denied defendant’s motion for summary disposition, ruling that this provision of the insurance policy was absolutely void because the policy lacked the tolling provision found in MCL 500.2833(1)(q); MSA 24.12833(1)(q). The trial court applied a general six-year statute of limitations, MCL 600.5807(8); MSA 27A.5807(8). Defendant filed a motion for reconsideration and requested that the court read the required tolling provision, found in MCL 500.2833(1)(q); MSA 24.12833(1)(q), into the policy. The trial court denied the motion.
On appeal, defendant argues that the one-year, contractual statute of limitations contained in the policy was not contrary to MCL 500.2833(1)(q); MSA 24.12833(1)(q) and therefore was not void pursuant to MCL 500.2860; MSA 24.12860. Alternatively, defendant argues that if the one-year limitation period is void, the tolling provision found in MCL 500.2833(1)(q); MSA 24.12833(1)(q) should be constructively added to the policy.
A primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Barr v Mount Brighton, Inc, 215 Mich App 512, 516; 546 NW2d 273 (1996). Insurance contracts are subject to statutory regulations, and mandatory, statutory provisions from the Insurance Code must be read into the contracts when applicable. Stine v Continental Casualty Co, 419 Mich 89, 104; 349 NW2d 127 (1984); Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 680; 499 NW2d 419 (1993), aff’d 446 Mich 482; 521 NW2d 266 (1994).
MCL 500.2860; MSA 24.12860 states:
Any provision of a fire insurance policy, which is contrary to the provisions of this chapter, shall be absolutely void, and an insurer issuing a fire insurance policy containing any such provision shall be liable to the insured under the policy in the same manner and to the same extent as if the provision were not contained in the policy.
MCL 500.2833(1)(q); MSA 24.12833(1)(q) states:
(1) Each fire insurance policy issued or delivered in this state shall contain the following provisions:
(q) That an action under the policy may be commenced only after compliance with the policy requirements. An action must be commenced within 1 year after the loss or within the time period specified in the policy, whichever is longer. The time for commencing an action is tolled from the time the insured notifies the insurer of the loss until the insurer formally denies liability.
The use of the word “shall” in the statute indicates that it is mandatory that every insurance policy contain the provision. See Niggeling v Dep’t of Transportation, 183 Mich App 770, 775; 455 NW2d 415 (1990), citing Young v Michigan, 171 Mich App 72; 429 NW2d 642 (1988).
We find that the one-year limitation period found in the insurance policy between plaintiff and defendant, which does not contain the tolling provision, is absolutely void pursuant to MCL 500.2860; MSA 24.12860. It is clearly contrary to the language of MCL 500.2833(1)(q); MSA 24.12833(1)(q) cited above. The term in defendant’s policy bars suit brought more than “one year after the date of loss or damage” regardless of the amount of time between the insured’s notifying the insurer of the loss and the insurer’s denial of liability.
Because the provision is void, the insurance contract does not contain any limitation period. It is necessary then to determine whether the limitation period of MCL 500.2833(1)(q); MSA 24.12833(1)(q) should be read into the contract or whether a general six-year statute of limitations applies.
The tolling provision found in MCL 500.2833(1)(q); MSA 24.12833(1)(q) was added by 1990 PA 305, which also repealed the Michigan Standard Policy. The Michigan Standard Policy, contained in MCL 500.2832; MSA 24.12832, was a standard policy that all insurers were required to issue. Former section MCL 500.2832; MSA 24.12832, lines 157 to 161, stated:
No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.
The Supreme Court, in In re Certified Question, 413 Mich 22, 38; 319 NW2d 320 (1982), interpreted MCL 500.2832; MSA 24.12832, lines 157-161, and held that although the twelve-month period commences from the date of loss, it is tolled from the time th? insured provides notice of loss until the insurer formally denies liability.
A one-year period of limitation, with tolling, was mandatory under the old statute. A plain reading of MCL 500.2833(1)(q); MSA 24.12833(1)(q) indicates that the Legislature intended to keep a mandatory limitation period of at least one year, with tolling, unless a longer period is specifically set forth in the insurance policy. In this case, where there is no applicable limitation period found within the policy, we will read the mandatory, statutory limitation provision into the insurance contract. See Stine, supra at 106. In so ruling, we note that there is absolutely no authority that would allow application of the general six-year contract statute of limitations to this insurance policy.
Under MCL 500.2833(1)(q); MSA 24.12833(1)(q), plaintiff had only one year after the time of loss, July 19, 1994, to file suit because a longer period was not specified in the contract at issue. The time for commencing the action was tolled from the time the insured notified the insurer of the loss, July 21, 1994, until the insurer formally denied liability, December 30, 1994. As a result, plaintiff was required to file suit before December 28, 1995. Plaintiffs suit was filed on January 18, 1996, twenty-one days after the statutory period of limitation expired. Plaintiffs suit is barred, and summary disposition for defendant was proper.
Reversed and remanded for entry of an order consistent with this opinion. | [
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Griffin, J.
Plaintiff appeals as of right an order granting summary disposition in favor of defendants regarding plaintiffs claims arising out of her discharge from employment. We reverse in part and affirm in part with regard to defendant Martha J. Piney and affirm with regard to defendants State Fitrm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company.
i
Plaintiff, who suffers from rheumatoid arthritis, began working for defendant Martha J. Piney (Piney) in November 1994 as a probationary employee. Martha J. Piney is the owner and operator of the Piney Insurance Agency, which sells exclusively insurance policies written by defendants State Farm. On February 24, 1995, following a satisfactory three-month job performance review, defendant Piney offered and plaintiff accepted a position of regular employment as a claims specialist. However, less than three weeks later, on March 10, defendant Piney terminated plaintiffs employment for alleged poor job performance. Defendant Piney claims that the employment deficiencies noted in plaintiffs thirty- and sixty-day reviews had escalated to the extent that plaintiffs overall job performance was unsatisfactory. However, in her deposition, plaintiff alleges that at the conclusion of her March 10 meeting with defendant Piney, Piney admitted to plaintiff that the true reason for her discharge was “[i]t’s because you’re handicap [sic].”
Following her discharge, plaintiff filed suit against defendant Piney and defendants State Farm, alleging a variety of claims. The lower court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). Plaintiff appeals as of right the dismissal of her claims of alleged unlawful discrimination in violation of the Michigan Handicappers’ Civil Rights Act (HORA), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision.
n
A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim. In Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996), the Supreme Court set forth the following standards for deciding such a notion:
In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10), (G)(4).
In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the non-moving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993).
In the present case, plaintiff has established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap. Plaintiff testified regarding an alleged admission by defendant Piney of employment discrimination based on her handicap. Because direct evidence of unlawful discrimination was presented, the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is not applicable. Harrison v Olde Financial Corp, 225 Mich App 601; 572 NW2d 679 (1997). Accordingly, the lower court erred in granting summary disposition on the basis that plaintiff failed to satisfy her burdens of production under McDonnell Douglas. As the Sixth Circuit Court of Appeals stated in Monette v Electronic Data Systems Corp, 90 F3d 1173, 1184 (CA 6, 1996):
[W]hen the plaintiff has direct evidence of discrimination based on his or her disability, there is no need for a McDonnell Douglas type burden shift and traditional burdens of proof will apply. . . . Nonetheless, the disabled individual always bears the burden of proving that he or she is “otherwise qualified” for the position in question, absent the challenged job function or with the proposed accommodation.
Because plaintiff presented direct evidence of unlawful discrimination, the pivotal issue is whether plaintiff submitted sufficient evidence to establish a genuine issue of material fact that she was qualified for the position from which she was discharged. Contrary to the position taken by the dissent, we conclude that plaintiff has sustained her burden for purposes of summary disposition. We are mindful that it is not the role of the court to evaluate the strength of the evidence in ruling regarding a motion for summary disposition. Rather, when deciding a motion for summary disposition that alleges no genuine issue of material fact,
[a] trial court tests the factual support of a plaintiff’s claim when it rules upon a motion for summary disposition filed under MCR 2.116(C)(10). Lichon v American Universal Ins Co, 435 Mich 408, 414; 459 NW2d 288 (1990). The court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted or filed in the action. The court is not permitted to assess credibility, or to determine facts on a motion for summary judgment. Zamler v Smith, 375 Mich 675, 678-679; 135 NW2d 349 (1965). Instead, the court’s task is to review the record evidence, and all reasonable inferences therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial.
[Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). ]
Viewing the evidence in a light most favorable to the nonmoving party, we conclude that plaintiff presented sufficient evidence for a reasonable person to conclude that she was qualified for the job from which she was discharged. In particular, in a ninety-day performance review held less than three weeks before plaintiffs discharge,, defendant Piney evaluated plaintiffs job performance as satisfactory. In light of plaintiff’s satisfactory job performance, defendant Piney thereafter offered plaintiff a regular full-time position. Piney’s February 24, 1995, offer of permanent employment to plaintiff states as follows:
Gail Norris
Start Date: 11/7/94
2/24/94 [sic] Three month review. I have worked with Gail for three months and two weeks now. In three months she has proven to be a quick learner, very task oriented, and very dependable. At this time I am making an offer from temporary employment to holding the position of claims specialist for my agency with the hopes that Gail will continue to develop and grow as an expert in her position and continue to strive and reach the goals that are set for this agency.
Continued salary with benefit package as attached and presented at time of original start date.
2/24/95 /s/ Gail Norris 2/24/95 Is/ Martha J. Piney, agent
In addition to defendant Piney’s admissions regarding plaintiffs job qualifications, plaintiff also presented the deposition testimony of coemployees who noted no change in plaintiffs job performance in the period from February 24, 1995, until her discharge. Finally, although Piney claims that plaintiff was discharged because of poor customer-service skills, plaintiff submitted evidence that there were no complaints from customers regarding her job performance.
After recognizing that fact finding and assessment of credibility are inappropriate when ruling regarding a motion for summary disposition, Dzierbowicz v American Seating Co, 450 Mich 969; 544 NW2d 473 (1996); Crittenden v Chrysler Corp, 178 Mich App 324; 443 NW2d 412 (1989), we conclude that a genuine issue of material fact exists regarding whether plaintiff was qualified for the position at the time of her discharge.
m
Next, plaintiff claims that the lower court committed error requiring reversal in granting summary disposition in favor of defendants State Farm with regard to plaintiffs claims of unlawful discrimination and negligent supervision. We disagree. Regarding these issues, both sides claim that the appropriate test for respondeat superior liability is the economic-reality test as set forth in McCarthy v State Farm Ins Co, 170 Mich App 451; 428 NW2d 692 (1988). Although McCarthy appears to be applicable, we hold that McCarthy was wrongly decided and therefore should not be followed. McCarthy relied on worker’s compensation cases in holding that respondeat superior liability should be decided on the basis of “the economic reality test.” However, after McCarthy, it is now well established that except for worker’s compensation benefits, the correct standard to assess respondeat superior liability is the control test, not the economic-reality test. Hoffman v JDM Associates, Inc, 213 Mich App 466, 468-469; 540 NW2d 689 (1995); Kral v Patrico’s Transit Mixing Co, 181 Mich App 226, 230-232; 448 NW2d 790 (1989). Cf. Meridian Mut Ins Co v Wypij, 226 Mich App 276; 573 NW2d 320 (1997).
Here, plaintiff presented evidence of the economic dependency of defendant Piney on defendants State Farm. However, plaintiff presented no evidence that defendants State Farm had any right to control the employment decisions of Piney. Absent any right of control, there is no liability of defendants State Farm for the action of defendant Piney under the doctrine of respondeat superior. Hoffman, supra; Kral, supra.
Similarly, because defendants State Farm were not the employer of defendant Piney, defendants State Farm owed no duty to plaintiff regarding the claim of alleged negligent supervision of defendant Piney. See, generally, Janice v Hondzinski, 176 Mich App 49; 439 NW2d 276 (1989). For these reasons, the lower court was correct in granting summary disposition in favor of defendants State Farm. Although the lower court’s decision was based on a different rationale, we will not reverse when the lower court reaches the correct result albeit for the wrong reason. Porter v Royal Oak, 214 Mich App 478, 488; 542 NW2d 905 (1995); State Mut Ins Co v Russell, 185 Mich App 521, 228; 462 NW2d 785 (1990).
IV
Finally, we conclude that the lower court correctly granted defendants’ motion for summary disposition regarding plaintiff’s claims of intentional infliction of emotional distress. Assuming the facts as alleged by plaintiff to be true, defendants’ conduct was not sufficiently outrageous to give rise to a separate cause of action for intentional infliction of emotional distress. Doe v Mills, 212 Mich App 73, 91; 536 NW2d 824 (1995).
For these reasons, we reverse in part and affirm in part with regard to defendant Piney and affirm with regard to defendants State Farm. Defendants State Farm may recover taxable costs. No costs in favor of plaintiff or defendant Piney, neither party having prevailed in full.
Corrigan, C.J., concurred.
As we noted in Durant [v Stahlin, 375 Mich 628, 646-647; 135 NW2d 392 (1965)], “there is a great difference between an inquiry to determine whether or not there is an issue of fact and a trial to decide a disputed issue of fact.”
McCarthy predates MCR 7.215(H) and its predecessors, Administrative Orders 1990-6, 1994-4, and 1996-4. Accordingly, McCarthy is not preeedentially binding on this Court.
Meridian addresses an employee exclusion in an insurance policy that does not define the term “employee.” The Meridian panel’s holding regarding the undefined insurance policy term is not applicable to the present case. To the extent that dicta in Meridian conflicts with our decision, we chose not to follow it and note that the Meridian panel was obligated to follow our prior decision, Hoffman v JDM Associates, Inc, supra,. | [
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Per Curiam.
Pursuant to MCR 7.215(H)(3), this conflict panel was convened to resolve an inconsistency between this Court’s prior, vacated opinion in People v Bigelow, 225 Mich App 806; 571 NW2d 520 (1997), and this Court’s earlier decision in People v Passeno, 195 Mich App 91; 489 NW2d 152 (1992). In accordance with MCR 7.215(H)(1), the prior Bigelow panel was required to follow the precedent of Passeno, supra. Were it not for MCR 7.215(H)(1), the previous panel would have reversed the decision of the lower court.
The conflict at issue involves defendant’s convictions of first-degree premeditated murder, MCL 750.316(1)(a); MSA 28.548(1)(a), and first-degree felony murder, MCL 750.316(1)(b); MSA 28.548(1)(b). In People v Bigelow, supra, this Court held that such dual convictions arising from the death of a single victim violate double jeopardy. Id. Thus, pursuant to this Court’s earlier decision in People v Passeno, supra, this Court affirmed defendant’s conviction of first-degree premeditated murder and vacated defendant’s conviction of felony murder. However, the Bigelow panel noted that, were it permitted, it would follow People v Zeitler, 183 Mich App 68; 454 NW2d 192 (1990), and hold that “the appropriate remedy to protect defendant’s rights against double jeopardy is to modify defendant’s judgment of conviction and sentence to specify that defendant’s conviction is for one count and one sentence of first-degree murder supported by two theories: premeditated murder and felony murder.” Bigelow, supra at 806.
Following an order by the Court of Appeals en banc invoking the conflict resolution procedure of MCR 7.215(H)(1), this case was reconsidered by this special panel. After due consideration, we resolve the conflict issue in favor of the prior Bigelow opinion. We are persuaded by the prior Bigelow opinion and hereby adopt its reasoning and analysis with regard to the conflict issue only. Because the conflict involved only this issue, we reinstate the balance of the prior Bigelow opinion. The part of Passeno that addresses the conflict issue is overruled.
During oral argument, defendant also claimed that his convictions of and sentences for both felony murder and the predicate felony of breaking and entering an occupied dwelling with the intent to commit larceny, MCL 750.110; MSA 28.305, deprived him of his state and federal constitutional rights against double jeopardy. During oral arguments, the prosecutor conceded that defendant’s conviction of breaking and entering must be vacated on double jeopardy grounds if the conviction of felony murder is upheld. We agree that the convictions of and sentences for both felony murder and the predicate offense violated his right against double jeopardy and, accordingly, vacate the conviction of and sentence for breaking and entering. People v Gimotty, 216 Mich App 254, 259-260; 549 NW2d 39 (1996).
We direct the lower court to vacate defendant’s conviction of and sentence for breaking and entering and to modify defendant’s judgment of sentence to specify that defendant’s conviction and single sentence is of one count of first-degree murder supported by two theories: premeditated murder and felony murder. The balance of defendant’s judgment of sentence and conviction shall remain unchanged. We remand this case to the lower court for proceedings consistent with this opinion.
Vacated in part and remanded for farther proceedings consistent with this opinion. We do not retain jurisdiction.
This Court specifically noted:
[T]he interests of justice are better served by Zeitler. Once the felony-murder basis of a defendant’s first-degree murder conviction is vacated, and the order has become effective, this ground to support the conviction is gone forever. If on further appeal another court were to find insufficient evidence of premeditated murder, the first-degree murder conviction would be reversed and vacated in total because no basis would remain to support the conviction. Such a result would be unjust and absurd, particularly for a criminal such as defendant who has clearly committed felony murder. [Bigelow, supra at 808.]
Because defendant was unanimously convicted of both premeditated murder and felony murder, we decline to address the unanimity issue raised in defendant’s supplemental brief. | [
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Gage, J.
Plaintiff appeals a decision of the Worker’s Compensation Appellate Commission that ordered plaintiff to authorize his employer to obtain information from the Social Security Administration regarding social security benefits plaintiff receives. This Court previously denied plaintiff’s application for leave to appeal in an unpublished order, entered December 15, 1995 (Docket No. 188531). However, our Supreme Court, in lieu of granting leave to appeal, remanded this matter for consideration as on leave granted “of the issue whether the magistrate properly ordered that an authorization for social security records be given.” Vernon v Controlled Temperature, Inc, 453 Mich 925; 554 NW2d 915 (1996). We affirm.
Plaintiff last worked for defendant Controlled Temperature, Inc., on July 12, 1984. On March 23, 1987, a hearing referee entered an open award of benefits on the basis of a January 6, 1984, injury. Benefits were paid to plaintiff. The appeal process continued until our Supreme Court denied a defense motion for reconsideration on July 31, 1992.
Plaintiff turned sixty-two years of age on May 31, 1992. In anticipation of plaintiff’s becoming eligible for early old-age social security benefits, defense counsel asked plaintiff’s counsel for a release in order to obtain information from the Social Security Administration regarding the benefits, if any, plaintiff received. It was known that plaintiff had been receiving social security disability benefits. Defense counsel relied on MCL 418.354(3)(b)(iii); MSA 17.237(354)(3)(b)(iii) for authority. The request was denied.
Defense counsel filed a request for a hearing, which was held on August 12, 1992. In the interim, defense counsel sent plaintiffs attorney a written request on June 22, 1992, which provided formal notification that plaintiff was entitled to early old-age social security benefits and which asked for a release in order to verify the type and amount of social security benefits plaintiff received. The written request went unanswered. The magistrate concluded that § 354(3) (a) contemplates the situation when an employee might be eligible for old-age benefits on reaching the age of sixty-two and ordered plaintiff to provide a release. The WCAC affirmed. It concluded that a plain reading of the statute logically led to the conclusion reached by the magistrate.
In this appeal, plaintiff argues that § 354(3) does not apply to him until he reaches sixty-five years of age. Plaintiff reasons that because he cannot be com pelled to apply for early old-age benefits, MCL 418.354(12); MSA 17.237(354)(12), the statute does not require him to provide a release to defendants. Plaintiff additionally argues that the release provision in § 354(3) (b) cannot be enforced because other portions of § 354(3) have not been implemented.
The coordination provisions in § 354 were added in 1981 (1981 PA 203) to address the perceived problem of a retired worker’s receiving both worker’s compensation payments and other payments also funded by the employer. Corbett v Plymouth Twp, 453 Mich 522, 531; 556 NW2d 478 (1996). At issue in this case is the coordination provision for old-age insurance benefits received under the Social Security Act, 42 USC 301 et seq. Employers are entitled to reduce weekly worker’s compensation payments by fifty percent of the amount of such old-age insurance benefits. MCL 418.354(1)(a); MSA 17.237(354)(1)(a).
In § 354(3) our Legislature established a method for determining whether there are benefits to coordinate and the amount of such benefits. Section 354(3) (a) requires the bureau to promulgate rules regarding notification by an employer to an employee of “possible” eligibility and the requirements for establishing proof of application for those benefits. This provision further requires notification to be mailed to the employee after the date the employee may be entitled to social security benefits. Plaintiff points out that no such rules have been promulgated.
Subsections 354(3) (b) (i)-(iii) pose certain requirements on an employee who receives notification of “possible” eligibility for social security benefits. The subsections require an employee to apply for benefits, to provide the employer with proof of the application, and to provide the employer with “an authority for release of information . . . The subsections state:
(b) Within 30 days after receipt of the notification of possible employee eligibility the employee shall:
(i) Make application for social security benefits.
(ü) Provide the employer or carrier with proof of that application.
(iii) Provide the employer or carrier with an authority for release of information which shall be utilized by the employer or carrier to obtain necessary benefit entitlement and amount information from the social security administration. The authority for release of information shall be effective for 1 year.
This provision is enforced by § 354(4), which permits benefits to be discontinued until an employee provides proof of the application and provides the authority for release of information.
We find nothing in the statute that limits the release or authorization provided for in § 354(3)(b)(iii) to employees who are sixty-five years old or older. To the contrary, the statute contemplates the release of information whenever an employee is possibly eligible for old-age social security benefits. Plaintiff does not dispute that he was eligible for such benefits when he reached the age of sixty-two. Plaintiff emphasizes that he cannot be forced to apply for such benefits. We agree with this assertion. MCL 418.354(12); MSA 17.237(354)(12) specifically states that nothing in § 354 is to be considered to compel an employee to apply for early old-age benefits. However, plaintiffs employer did not seek to compel plaintiff to apply for early benefits and neither the magistrate nor the wcac ordered plaintiff to do so. The employer merely requested authorization to obtain information to verify that plaintiff was not receiving social security benefits that could be coordinated. Plaintiff insisted that he was receiving disability benefits that could not be coordinated, but § 354(3)(b)(iii) clearly provides that an employer does not have to accept an employee’s representation but can verify for itself the benefits an employee receives. An employer’s need for information is the same whether early or regular old-age benefits are at issue.
We reject plaintiff’s argument that the employee’s obligation to authorize the release of information, as set forth in § 354(3)(b), is dependent on the requirement that the bureau promulgate rules, as provided in § 354(3)(a). The two portions of § 354(3) are not dependent on one another. Moreover, plaintiff received notification of possible eligibility for benefits at least three times: by an informal request, by a formal written request, and by the request for a hearing. The purpose of § 354(3)(a), to provide notice to an affected employee, was satisfied in the present case.
Verification of social security benefits is important in the overall scheme for coordination of benefits. Acceptance of plaintiff’s argument would seriously undermine that scheme. We do not believe our Legislature intended such a result. We avoid construing statutes to yield “absurd or self-defeating consequences . . . .” Haas v Ionia, 214 Mich App 361, 364; 543 NW2d 21 (1995). Statutes should be construed so as to give them validity and a reasonable construction, while inconsistencies in various provisions of a statute should be reconciled, if possible, so as to give effect to all parts of the statute. Gross v General Motors Corp, 448 Mich 147, 164; 528 NW2d 707 (1995). We do not think it reasonable to excuse plain tiffs obligations under the coordination scheme of § 354 because of the bureau’s failure to promulgate rales. The purpose of the unpromulgated rules was satisfied in the present case when plaintiff repeatedly received notice from his employer.
Affirmed.
Various portions of MCL 418.354; MSA 17.237(354) are cited throughout this opinion. This statute provides in pertinent portions:
(1) This section is applicable when either weekly or lump sum payments are made to an employee as a result of liability pursuant to section 351, 361, or 835 [weekly worker’s compensation payments for total incapacity or partial incapacity or a lump sum worker’s compensation payment] with respect to the same time period for which old-age insurance benefit payments under the social security act, 42 USC 301 to 1397f; payments under a self-insurance plan, a wage continuation plan, or a disability insurance policy provided by the employer; or pension or retirement payments pursuant to a plan or program established or maintained by the employer, are also received or being received by the employee. Except as otherwise provided in this section, the employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits under section 361(2) and (3) shall be reduced ....
* * *
(3) In the application of subsection (1) any credit or reduction shall occur pursuant to this section and all of the following:
(a) The bureau shall promulgate rules to provide for notification by an employer or carrier to an employee of possible eligibility for social security benefits and the requirements for establishing proof of application for those benefits. Notification shall be promptly mailed to the employee after the date on which by reason of age the employee may be entitled to social security benefits. A copy of the notification of possible eligibility shall be filed with the bureau by the employer or carrier.
(b) Within 30 days after receipt of the notification of possible employee eligibility the employee shall:
(i) Make application for social security benefits.
(ii) Provide the employer or carrier with proof of that application.
(iii) Provide the employer or carrier with an authority for release of information which shall be utilized by the employer or carrier to obtain necessary benefit entitlement and amount information from the social security administration. The authority for release of information shall be effective for 1 year.
(4) Failure of the employee to provide the proof of application or the authority for release of information as prescribed in subsection (3) shall allow the employer or carrier with the approval of the bureau to discontinue the compensation benefits payable to the employee under section 351, 361, or 835 until the proof of application and the authority for release of information is provided. Compensation benefits withheld shall be reimbursed to the employee upon the providing of the required proof of application, or the authority for release of information, or both.
(12) Nothing in this section shall be considered to compel an employee to apply for early federal social security old-age insurance benefits or to apply for early or reduced pension or retirement benefits. | [
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Whitbeck, J.
Defendant TIG Insurance Company appeals as of right from an order granting summary disposition to plaintiff Pioneer State Mutual Insurance Company under MCR 2.116(C)(10) and entering judgment in favor of Pioneer for $44,124.44 plus interest. We affirm.
This case arises from a boating accident that occurred on Gull Lake on July 31, 1994. A boat owned by Richard Newhauser and operated by his son Stephen Newhauser collided with a boat occupied by Joseph Malesich. The accident apparently resulted in serious injury to Malesich. Thereafter, Malesich filed a complaint against Stephen Newhauser and Richard Newhauser in the Kalamazoo Circuit Court. Malesich alleged that Stephen Newhauser’s negligent operation of Richard Newhauser’s boat caused the accident, that Richard Newhauser was liable as the owner of the boat for his son’s negligent operation of the boat, and that Richard Newhauser knowingly authorized or permitted the boat to be operated by a person under the influence of intoxicating liquor.
Pioneer insured Richard Newhauser for personal liability up to $500,000. For an additional premium, Pioneer provided Richard Newhauser with a watercraft liability endorsement. Pioneer’s policy included the following clause:
Other Insurance — Coverage E — Personal Liability. If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle or watercraft is in excess over any other valid and collectible insurance except insurance written specifically to cover as excess over the limits of liability that apply in this policy. [Emphasis added.]
TIG insured Nancy Newhauser, the ex-wife of Richard Newhauser and mother of Stephen Newhauser, for personal liability up to $500,000. TIG’s policy defined its “insured” as “you and residents of your household who are your relatives.” TIG apparently acknowledges that it covered Stephen Newhauser under its policy with Nancy Newhauser. That policy included the following “excess” clause:
Other Insurance — Coverage E — Personal Liability. This insurance is excess over other valid and collectible insurance except insurance written specifically to cover as excess over the limits of liability that apply in this policy. [Emphasis added.]
Pioneer provided legal representation to Richard Newhauser and Stephen Newhauser in Malesich’s suit against them. On receipt of the Malesich complaint, Pioneer contacted TIG and sought contribution under TIG’s policy with Nancy Newhauser. TIG took the position that, even if Stephen Newhauser was an insured under the TIG policy, the above “other insurance” provision was triggered so that the TIG coverage was excess over the coverage provided by the Pioneer policy. Pioneer defended Richard Newhauser and Stephen Newhauser without aid from TIG. Pioneer settled the Malesich suit for $75,000. Pioneer also settled a property damage claim by Secura Insurance Company, as the insurer of Malesich’s boat, for $7,125. TIG neither represented Stephen Newhauser nor contributed to either settlement. Richard Newhauser and Stephen Newhauser assigned to Pioneer any claims that they may have had against TIG based on TIG’s refusal to defend or indemnify them in the Malesich suit.
Thereafter, Pioneer filed suit against TIG, seeking one-half of the costs associated with defending and indemnifying Richard Newhauser and Stephen Newhauser. The trial court granted Pioneer’s motion for summary disposition under MCR 2.116(C)(10). The trial court found that Stephen Newhauser was an insured under the TIG policy, that TIG had a duty to defend and indemnify Stephen Newhauser, and that TIG had admitted its refusal to participate in the settlement negotiations. The trial court entered judgment in favor of Pioneer for one-half of the amount that Pioneer paid to settle the Malesich suit, one-half of the amount that Pioneer paid to settle the property damage claim by Secura, and one-fourth of the expenses and costs Pioneer incurred in defending Richard Newhauser and Stephen Newhauser.
At issue in this case is the allocation between Pioneer and TIG of the losses and expenses resulting from the boat accident in light of their respective contractual obligations and the provisions of the respective insurance contracts providing that each insurer’s coverage was only “in excess” of other insurance coverage. Although the particular language of the two policies involved in this case is different, the policies are substantively identical. Pioneer’s policy states that its coverage for watercraft is in excess over other insurance coverage, while TIG’s policy generally states that it provides “excess” coverage over other insurance coverage. Thus, both policies purport to provide coverage only after other sources of insurance have been exhausted.
TIG essentially argues that Pioneer should be regarded as providing primary coverage and that TIG is not liable because the total amount Pioneer paid was less than the $500,000 limit of Pioneer’s policy. Alternatively, TIG argues that its liability should be limited to twenty-five percent because Pioneer provided coverage for both Richard Newhauser and Stephen Newhauser, while TIG provided coverage only for Stephen Newhauser. For the reasons discussed below, we reject TIG’s positions.
Our review of a motion for summary disposition is de novo. Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). A motion under MCR 2.116(C)(10) tests the factual basis underlying a claim. This Court’s task is to review the record evidence, and all reasonable inferences drawn from it, and decide whether a genuine issue regarding any material fact exists to warrant a trial. Id.
We firstly note that, as observed by the Michigan Supreme Court in St Paul Fire & Marine Ins Co v American Home Assurance Co, 444 Mich 560, 564; 514 NW2d 113 (1994):
Broadly defined, insurance is a contract by which one party, for a consideration, assumes particular risks of the other party. The parties have the right to employ whatever terms they wish, and the courts will not rewrite them as long as the terms do not conflict with pertinent statutes or public policy. Auto-Owners Ins Co v Churchman, 440 Mich 560, 566-567; 489 NW2d 431 (1992).
We secondly note that “other insurance” clauses are provisions included in insurance policies to vary or limit the insurer’s liability when additional insurance coverage can be established to cover the same loss. St Paul, supra at 564. There are three general categories of “other insurance” clauses. First, there are “prorata” clauses, that purport to limit the insurer’s liability to a proportionate percentage of all insurance covering the event. Id. at 565. Second, there are “escape” or “no-liability” clauses, that provide that there shall be no liability if the risk is covered by other insurance. Id. Third, there are “excess” clauses that limit the insurer’s liability to the amount of loss in excess of the coverage provided by the other insurance. Id. ■
Disputes arise, as in this case, when two or more insurance policies covering the same risk contain such “other insurance” provisions. A variety of combinations of the clauses may occur (e.g., pro rata versus excess, pro rata versus escape, excess versus excess), and the courts have developed different rules for resolving these conflicts. Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537, 542-543; 383 NW2d 590 (1986), overruled in part by Auto Club Ins Ass’n v Frederick & Herrud, Inc (After Remand), 443 Mich 358; 505 NW2d 820 (1993). As stated by the Michigan Supreme Court in Federal Kemper, supra at 543:
Two trends have evolved. The majority rule attempts to reconcile the competing provisions by discerning the parties’ intent through an analysis of the clauses. See, e.g., Jones v Medox, 430 A2d 488 (DC App, 1981). Critics of this approach argue that it is circular and that the decision as to which clause is primary depends on which policy is read first. Thus some courts deem the provisions “mutually repugnant” and reject both clauses. Lamb-Weston, Inc v Oregon Automobile Ins Co, 219 Or 110, 129; 341 P2d 110 (1958). Courts adopting this minority view . . . hold that liability must be prorated. Id.
In St Paul, supra at 576-577, the Michigan Supreme Court adopted the majority rule, at least with respect to disputes between pro-rata and excess “other insurance” clauses. The Court, id., stated:
We are persuaded by the reasoning in Jones [v Medox], supra, and therefore adopt the majority view for resolving disputes between pro-rata and excess “other insurance” clauses. Although the simplicity and ease of application of the Lamb-Weston [Inc v Oregon, supra] rule is tempting, we find the cost of nullifying the negotiated intent of the parties alarming. Accordingly, we refrain from rewriting the instant contracts and instead give effect to the meaning and intent of the policy language. Upjohn Co v New Hampshire Ins Co, 438 Mich 197; 476 NW2d 392 (1991); Eghotz [v Creech, 365 Mich 527, 530; 113 NW2d 815 (1962)].
Notably, St Paul, supra, involved a dispute among three insurance companies that provided malpractice insurance to an attorney. Id. at 561-562, 569. As the Court noted, the policies provided by two insurers included “pro-rata” “other insurance” clauses, while the policy of the third insurer included an “excess” “other insurance” clause. Id. at 566-567, 569.
Thus, in accordance with the majority view, the Michigan Supreme Court in St Paul, supra, concluded that “pro-rata” and “excess clauses” could be reconciled by construing a policy containing an “excess” clause as secondary coverage to a policy containing a “pro-rata” clause, so that an insurer protected by an “excess” clause would be liable only after the policy limit of a policy containing a “pro-rata” clause was exhausted. However, the St Paul Court stated that it relight be necessary to declare identical excess clauses irreconcilable:
We also acknowledge that it may be necessary to declare “other insurance” clauses irreconcilable when the applicable portions of the two other insurance clauses are identical excess clauses. In the example presented, [of conflicting “excess” insurance clauses] there is an actual problem with circularity. Moreover, the literal interpretation of policies containing competing excess clauses would leave the insured without any coverage where it first appeared he had multiple coverage. In these cases, there is no rational reason to give the language of one policy preference over identical language in the other policy.
However, that is not the case before us. Instead, we are confronted with a dispute involving pro-rata and excess “other insurance” clauses. [St Paul, supra at 577-578].
See also Secura Ins Co v Cincinnati Ins Co, 198 Mich App 243; 497 NW2d 230 (1993), Nat'l Indemnity Co v Budget Rent A Car Systems, Inc, 195 Mich App 186; 489 NW2d 175 (1992).
Here, the two “excess” clauses are substantively identical. Thus, there is no rational way to reconcile the competing “excess” clauses. Although under St Paul an effort should be made to reconcile competing “other insurance” clauses where reasonably possible, “excess” clauses with substantively identical meaning in the context of a particular case may not be reconciled. As observed by the St Paul Court, an arguable .literal interpretation that would deny any insurance coverage in the face of competing “excess” clauses would be absurd. Rather, where there are two competing and “mutually repugnant” “excess” clauses, the courts should attempt to apportion coverage between the policies in a reasonably equitable manner. Here, both the Pioneer and TIG policies, if given literal effect, would lay the responsibility to defend and indemnify Stephen Newhauser on the other company. As Pioneer points out, this would, ironically, leave Stephen Newhauser, an “insured” under both policies, without a defense or indemnification.
Our conclusion in this regard is not altered by the recent decision of the Michigan Supreme Court in Bosco v Bauermeister, 456 Mich 279; 571 NW2d 509 (1997), reversing this Court’s opinion in Bosco v Auto Owners Ins Co, 212 Mich App 421; 539 NW2d 517 (1995). There, the Court reinstated the trial court’s holding that three “layers” of coverage existed: (1) primary coverage provided by an insurer under an automobile policy, (2) excess “other insurance” coverage provided by two insurers under automobile policies, and (3) “true” excess coverage provided by two insurers under umbrella policies. The issue before the Court was the relationship between the excess “other insurance” coverage provided by one insurer, Frankenmuth Mutual Insurance Co., Inc., and the “true” excess coverage provided by the two umbrella insurers, USAA Casualty Co. and Auto-Owners Insurance Co., Inc. This Court had found that each insurer’s liability should be prorated on the basis of the ratio of the insurer’s limits of liability to the total limits. Id. at 435. The Michigan Supreme Court held:
We conclude that the distinction between “trae” excess insurance coverage and excess “other insurance” based on the difference in policy types within the insurance industry, the premiums charged for and risks assumed by the policies, the language of the policies, and the reasonable expectations of all the contracting parties requires an excess “other insurance” policy to be exhausted before a “true” excess insurance policy is required to contribute to a loss. [Bosco v Bauermeister, supra at 304.]
The Michigan Supreme Court therefore required the “excess” “other insurance” policy of Frankenmuth to be exhausted before the “true” “excess umbrella” policies could be required to contribute to the loss. Id. at 281-282. Here, we are not confronted with two different “layers” of coverage. Rather, the excess provisions of both of the competing policies are, for all intents and purposes, essentially at the same “layer.” Under such circumstances, liability is to be apportioned on the basis of the policy limits. Because both of the policies in this case provided a $500,000 limit on coverage, the trial court properly apportioned the settlement costs equally between Pioneer and TIG.
Affirmed.
TIG states in its brief that, with regard to this case, it “only insures Stephen Newhauser.”
During oral argument, counsel for both parties agreed that the two clauses were essentially identical and “repugnant.”
The Michigan Supreme Court also noted in St Paul, supra at 572-573, n 24, that with the exception of Farm Bureau Mut Ins Co v Horace Mann Ins Co, 131 Mich App 98; 345 NW2d 655 (1983), this Court has limited the application of the minority rule to instances where there are identical conflicting “other insurance” provisions. The Court did not express an opinion regarding the correctness of Farm Bureau, which concerned conflicting escape and pro-rata clauses. In Mary Free Bed Hosp & Rehabilitation Center v Ins Co of North America, 131 Mich App 105; 345 NW2d 658 (1983), this Court adopted the minority view to resolve conflicting excess clauses.
We are uncertain why the trial court imposed only twenty-five percent of the costs of providing representation to Richard and Stephen Newhauser on TIG. However, any error in the failure to apportion these costs evenly benefited TIG. Pioneer has not filed a cross appeal and, accordingly, does not seek relief from the manner in which these costs of representation were apportioned. Therefore, we do not reach this potential issue. | [
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Boyle, J.
We granted leave to appeal to address whether the trial court erred in granting defendant’s motion for a new trial on the basis that the great weight of the evidence standard established in People v Herbert, 444 Mich 466, 476; 511 NW2d 654 (1993), permitted the trial judge to act as a “thirteenth juror.” Insofar as it authorizes judges to grant new trial motions on the basis of a disagreement with juror assessment of credibility, Herbert is overruled. A trial judge does not sit as the thirteenth juror in ruling on motions for a new trial and may grant a new trial only if the evidence preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand.
i
FACTS AND PROCEDURE
Defendant Joseph Lemmon was convicted of five counts of criminal sexual conduct following a jury trial held before Judge Carole F. Youngblood. He was found guilty of one count of first-degree criminal sexual conduct and two counts of second-degree crimi nal sexual conduct against one daughter and two counts of esc n against the other daughter of his former girlfriend, Deborah Buell. Ms. Buell met and then lived with Joseph Lemmon for a short time in 1988. During that time, Mr. Lemmon fathered a son, the youngest child of Ms. Buell; however, the relationship ended before James was bom. The couple later resumed their relationship in 1992 and Joseph Lemmon moved in with Ms. Buell and her three other children, two daughters, ages eleven and eight, and a son, age six. He lived with them as a member of the family from November, 1992, until August, 1993.
The older daughter testified that, on four different occasions, when her mother was not in the home, the defendant sexually abused her. The separate incidents occurred on different days and involved defendant lifting her bra and playing with her breasts when putting cream on her pimples, putting his finger into her vagina, attempting penile penetration of her vagina, and sucking her breast. She testified that defendant was responsible for discipline during the time he lived in the house and that while he never physically disciplined her, he did ground her for bad report cards. She further testified that she did not tell anyone what had happened because defendant told her that it was just between the two of them and “not to tell no one” and that if she did, she “would get hurt.”
The younger daughter testified that she had been the victim of the defendant’s sexual abuse on two occasions. Both incidents, which were similar in nature, occurred when her mother was not present in the home and took place in the bedroom Mr. Lemmon shared with her mother. She stated that, on different days, defendant called her into the bedroom telling her he wanted to show her something. When she went into the room, defendant pulled down his pants, exposed himself, and told her to touch his penis. When she refused, he grabbed her hand, placed it on his penis, and forced her to rub it. She further testified that defendant disciplined her during the time he lived with her mother and would sometimes whip her or confine her to her room. She also testified that defendant told her not to tell anyone what had transpired and that if she did, he “would do something” and she would “be in big trouble.”
Both girls testified that they did not tell their mother what had happened until after Mr. Lemmon and their mother had separated and both parties had moved out of the house they shared. Their mother confirmed this portion of the girls’ testimony, stating that the girls had not indicated that any type of sexual abuse had occurred during the time she was living with Mr. Lemmon. Ms. Buell testified that it was her decision to break off the relationship with Mr. Lemmon, but that it was not until after the relationship had ended, and she and her children had moved into her parent’s home that she was informed of the abuse.
Defense counsel for Mr. Lemmon cross-examined the girls in an attempt to impeach their testimony. He obtained admissions from the older daughter that there were times that she had not told the truth and later admitted to the lie by telling the truth. Specifically, defense counsel elicited from her falsehoods that included instances such as lying about stealing a candy bar, smoking in the woods, not giving notes from her teacher to her parents, taking food off her brothers’ plates, going places with friends, riding her bike in the street, and saying she had finished homework when she had not, or cleaned her room when she had not. On cross-examination of the younger daughter, defense counsel obtained admissions that she had not told the truth only when she said she had cleaned her room, but had not, and told her mother she was going one place, but went another. She denied other allegations that she had lied about homework or lied to get her sister in trouble.
Defendant presented several witnesses and testified in his own defense. He stated that his relationship with Ms. Buell had its ups and downs, that she was very jealous, and wanted everything her own way. In contrast to the testimony of Ms. Buell, the defendant claimed that he initiated the breakup. He further indicated that when he moved out of the house he was still on speaking terms with Ms. Buell. Additionally, he denied ever sexually abusing either girl and stated that Ms. Buell was present the one time he had put cream on the older daughter’s spots. He agreed that he was involved in disciplining the girls but that he had never hit either of them. He could give no reason for either of the girls to be angry with him, hold anything against him, or make up allegations against him.
At the close of the people’s proofs, the prosecutor agreed to dismiss a third count of CSC H concerning the older daughter because she could only recall two specific instances of sexual contact, although there might have been three. There was no motion for a directed verdict regarding the other counts. After Mr. Lemmon presented his defense, the case was submit ted to the jury who found the defendant guilty on all five remaining counts.
At sentencing, the defendant submitted a motion for a directed verdict or new trial, which was denied. The trial judge imposed a two- to fifteen-year term for one conviction of CSC I and two- to ten-year terms for each conviction of esc n, to run concurrently. In July, 1995, defendant obtained new counsel and filed another motion for a directed verdict or a new trial. The motion was granted by Judge Youngblood on the basis of People v Herbert, supra. The court noted that Herbert allowed a new trial when the verdict is against the great weight of the evidence or to prevent an injustice and stated that the new trial motion was granted after reviewing the whole body of proofs, particularly the contradictory testimony and demeanor of the girls.
The prosecutor filed a delayed application for leave to appeal the decision to grant a new trial. The Court of Appeals stayed the new trial and remanded the case to Judge Youngblood “for a full statement of the court’s reasons for granting the motion for new trial, including a specific explanation of why the court found the witnesses’ testimony not credible and the verdict against the great weight of the evidence.” Unpublished order of the Court of Appeals, entered November 20, 1995 (Docket No. 189329).
In the written opinion reviewed here, the trial court observed that both prosecution witnesses “lacked credibility.” She cited their “poor memory of any details” as to time or events, the “illogic” of their description of the circumstances surrounding the sexual assaults, their “poor reputation for truthfulness,” and the fact that the information regarding the assaults had not been disclosed until months after their occurrence and “after the defendant had rejected the family relationship.” The judge also found the demeanor of the witnesses questionable in that the older daughter “giggled at times, but not at embarrassing moments when one might expect a child to giggle,” that “[b]oth children appeared to look at the prosecutor and others in the courtroom for approval rather than candidly testifying as to their memory,” and used sexually explicit words and phrases “without any hesitation or embarrassment.” The judge indicated that “[t]he only evidence of the defendant’s guilt was the testimony of [the girls]. There were no medical records, counseling records, or corroborating testimony.”
Finally, the judge reaffirmed her opinion that the verdict had resulted in a “miscarriage of justice” stating that the “credibility of the orally-testifying witnesses and their demeanor leaves this court with a firm belief that the defendant should be tried by a different jury.”
The Court of Appeals denied the prosecutor’s application for leave to appeal. However, Judge Corrigan observed that she had consistently questioned the principle of People v Herbert that a trial court may sit as a thirteenth juror. Judge Corrigan stated that, in her view, the credibility of the two witnesses had not been significantly impugned but could not say that the trial judge had abused her discretion in granting a new trial. Judge Markman agreed that, given the authority vested in the trial courts under People v Herbert, there was no “abuse of discretion” on the part of the trial judge and joined Judge Corrigan in questioning the merits of Herbert. Unpublished order of the Court of Appeals, entered March 12, 1996 (Docket No. 189329). The prosecutor appealed, and we granted leave to appeal.
n
The issue presented is rooted in the difference between the standard for granting a new trial and that required to grant a directed verdict of acquittal. Due process commands a directed verdict of acquittal when “sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt,” People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979), citing Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979), is lacking. If the evidence presented by the prosecution in the light most favorable to the prosecution, up to the time the motion is made, is insufficient to justify a reasonable trier of fact to find guilt beyond a reasonable doubt, a directed verdict or judgment of acquittal must be entered. Hampton, supra at 368.
Under statute, as well as the court rule, the operative principles regarding new trial motions are that the court “may,” in the “interest of justice” or to pre vent a “miscarriage of justice,” grant the defendant’s motion for a new trial. In Herbert, we noted that, in addition to preventing injustice, a new trial may be granted if the verdict is against the great weight of the evidence. While the great weight of the evidence standard for granting a new trial is traceable to longstanding case law, People v Henssler, 48 Mich 49, 51; 11 NW 804 (1882), Herbert is the first opinion decided by this Court requiring consideration of the standard for granting new trial motions in light of the constitutional mandate announced in Jackson and recognized in Hampton.
In Herbert, supra at 476, we quoted with approval Judge Frank’s concurring opinion in Dyer v MacDougall, 201 F2d 265, 271-272 (CA 2, 1952), that “ ‘[o]n a motion for new trial, the judge acts “as the thirteenth juror,” i.e., he evaluates the credibility of the orally-testifying witnesses and therefore their demeanor. But on a motion for a directed verdict he does not.’ ” Today we clarify that a judge may not repudiate a jury verdict on the ground that “he disbelieves the testimony of witnesses for the prevailing party.” People v Johnson, 397 Mich 686, 687; 246 NW2d 836 (1976).
in
The issue whether a state trial court judge in a jury trial “may assess evidence as a ‘13th juror’ is a question of state law.” Hudson v Louisiana, 450 US 40, 45, n 5; 101 S Ct 970; 67 L Ed 2d 30 (1981). The his- tone division of functions between the court and the jury needs no citation of authority. It is the province of the jury to determine questions of fact and assess the credibility of witnesses. “As the trier of fact, the jury is the final judge of credibility.” Johnson, supra at 687. The approach that would allow a trial judge to sit as a thirteenth juror and overrule the credibility determinations of the jury suggests that a judge may freely repudiate the jury’s findings. Although Johnson, supra at 687, indicates that a trial judge may grant a new trial because he disbelieves witness testimony, explicit reference to the judge as thirteenth juror does not appear in Michigan jurisprudence before Herbert, a per curiam opinion issued without benefit of oral argument. Having had the advantage of oral argument, full appellate briefing, and review of additional state and federal cases, a better view emerges.
Appellate reluctance to interfere with the grant of a new trial is soundly rooted in the proposition that “[t]he judge was ‘there’ [w]e were not.” Adler v Flint City Coach Lines, Inc, 364 Mich 29, 39; 110 NW2d 606 (1961). It is also based on the pragmatic expectation of appellate courts that the trial courts will sparingly exercise such authority and that expansion of appellate oversight would simply invite an increase in claims for review. Spalding v Spalding, 355 Mich 382, 384; 94 NW2d 810 (1959). That disputed issues of fact are for the jury is a fundamental tenet of our jurisprudence, Rizzo v Kretschmer, 389 Mich 363, 371-372; 207 NW2d 316 (1973), and it is the trial judge who presumably will bear the practical consequence of a conclusion that a case needs to be retried.
The conundrum is that, in motions for a new trial based on the claim that the verdict is against the great weight of the evidence, the issue of credibility of the witnesses is implicit in determining great weight or overwhehning weight of that evidence. Sloan v Kramer-Orloff Co, 371 Mich 403, 412; 124 NW2d 255 (1963). The problem has been addressed by abstract formulations that caution against overturning verdicts and, less frequently, by an attempt to give concrete guidance to a judge asked to review “the whole body of proofs,” which necessarily includes an evaluation of the credibility of the witnesses. Herbert, supra at 475. New trial motions based solely on the weight of the evidence regarding witness credibility are not favored.
This formulation of the standard is, in turn, founded on the principle that the preservation of the jury by constitutional amendment was designed as a limitation on judicial power. As Justice Taylor recently observed, the “special role accorded jurors under our constitutional system of justice” has been acknowledged for centuries. People v Bart (On Remand), 220 Mich App 1, 12; 558 NW2d 449 (1996):
“Now let any man of sense consider, whether this method be not more proper for bolting out the truth, for finding out the guilty, and preserving the innocent, than if the whole decision were left to the examination of a judge, or two or three, whose interests, passion, haste, or multiplicity of business may easily betray them into error.” [Quoting Care, English Liberties, pp 205-209, written in 1680 (and cited in 2 Few, In Defense of Trial by Jury, p 278, published in 1993 by the American Jury Trial Foundation).]
Justice Taylor further observed that “the hurdle a judge must clear to overrule a jury is unquestionably among the highest in our law. It is to be approached by the court with great trepidation and reserve, with all presumptions running against its invocation.” Id. at 13.
The thirteenth juror standard posits that the authority of the trial judge is equal to, or greater than, that of the other jurors when the court does not agree with the outcome. It follows that the oft repeated statement, the “power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict,” Dorman v State, 622 P2d 448, 454 (Alas, 1981), citing 3 Wright & Miller, Federal Practice & Procedure, § 553, pp 245-248, cannot be understood to endorse the concept of the judge as thirteenth juror. The trial judge who posits the authority to determine whether the evidence is so evenly balanced that reasonable jurors might come to different conclusions, as Justice Cavanagh suggests, may further assume that jurors have unreasonably come to the conclusion they reached. That is why the thirteenth juror approach has a potential to undermine the jury function and why we now reject it.
Were the concept to be applied as expressed, the constitutional method for sifting out the truth, for our finding the guilty and preserving the innocent, would be “ ‘left to the examination of a judge, or two or three.’ ” To adhere to this principle and articulate a concept for resolving the conundrum of the trial court, appellate courts have narrowed the inquiry to focus on the defendant’s innocence, that is, whether it would be a manifest injustice to allow the verdict to stand. United States v Polin, 824 F Supp 542, 551 (ED Pa, 1993). Numerous federal circuits and other jurisdictions have adopted similar standards: “The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction,” State v Martin, 20 Ohio App 3d 172, 175; 485 NE2d 717 (1983), or “preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred . . . .” State v Kringstad, 353 NW2d 302, 306 (ND, 1984).
In accord with these cases, the Vermont Supreme Court stated that a motion for a new trial in the inter est of justice is a remedy to be used sparingly and “only in exceptional cases” and “should be granted ‘only upon a conclusion by the trial court that, weighing all the evidence including the credibility of the witnesses, the verdict is clearly against the weight of the evidence.’ ” State v LaDabouche, 146 Vt 279, 283; 502 A2d 852 (1985). The court asserted that this language permits the inference that the trial judge does not sit “merely as a thirteenth juror, but applies a stricter standard,” and further noted that more recent federal cases have adopted this standard and do not mention the thirteenth juror concept. Id.
These observations are in full accord with the language of our statute and court rule. Thus, “a new trial based upon the weight of the evidence should be granted only where the evidence preponderates heavily against the verdict and a serious miscarriage of justice would otherwise result.” LaDabouche, supra at 285.
IV
We align ourselves with those appellate courts holding that, absent exceptional circumstances, issues of witness credibility are for the jury, and the trial court may not substitute its view of the credibility “for the constitutionally guaranteed jury determination thereof.” Sloan, supra at 411. We reiterate the observation in Anderson v Conterio, 303 Mich 75, 79; 5 NW2d 572 (1942), that, when testimony is in direct conflict and testimony supporting the verdict has been impeached, if “it cannot be said as a matter of law that the testimony thus impeached was deprived of all probative value or that the jury could not believe it,” the credibility of witnesses is for the jury.
Adding flesh to what is a more refined articulation of the formula that “ ‘[i]n general, conflicting testimony or a question as to the credibility of a witness are not sufficient grounds for granting a new trial,’ ” United States v Garcia, 978 F2d 746, 748 (CA 1, 1992), quoting with approval United States v Kuzniar, 881 F2d 466, 470 (CA 7, 1989), federal circuit courts have carved out a very narrow exception to the rule that the trial court may not take the testimony away from the jury. Id. at 470-471. Defining the exception, the federal courts have developed several tests that would allow application of the exception; for example, if the “testimony contradicts indisputable physical facts or laws,” id., “[w]here testimony is patently incredible or defies physical realities,” United States v Sanchez, 969 F2d 1409, 1414 (CA 2, 1992), “[w]here a witness’s testimony is material and is so inherently implausible that it could not be believed by a reasonable juror,” Garcia, supra at 748, or where the witness’ testimony has been seriously “impeached” and the case marked by “uncertainties and discrepancies.” United States v Martinez, 763 F2d 1297, 1313 (CA 11, 1985).
This does not mean that “[a] judge’s disagreement with the jury’s verdict,” United States v Arrington, 757 F2d 1484, 1486 (CA 4, 1985), or a “trial judge’s rejection of all or part of the testimony of a witness or witnesses,” entitles a defendant to a new trial. Sanchez, supra at 1414. Rather, a trial judge must determine if one of the tests applies so that it would seriously undermine the credibility of a witness’ testimony and, if so, is there “a real concern that an innocent person may have been convicted” or that “it would be a manifest injustice” to allow the guilty verdict to stand. Id. If the “evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions,” the judge may not disturb the jury findings although his judgment might incline him the other way. Kringstad, supra at 307. Any “real concern” that an innocent person has been convicted would arise “only if the credible trial evidence weighs more heavily in [the defendant’s] favor than against it.” Polin, supra at 551.
Formulaic pronouncements are less than successful in giving practical guidance to trial courts regarding when the “mystic borderline” is crossed between credibility issues that must remain with the jury and a court’s authority to overturn that finding. We can state confidently that the judge is not to act as a thirteenth juror when passing on such motions. Justice Cavanagh can state with equal assurance that the trial judge is uniquely situated “to observe the presentation of evidence in court.” Post at 652. Neither statement defines the range of authority that remains. A survey of the legal landscape, including federal authority and legal commentary, identifies the practical guidance that a trial judge seeks. Justice O’Hara in Sloan, instructs the trial court to answer the threshold question regarding what issue is actually posed by the motion, that is, to engage in “an evaluation of the testimony bearing on the controverted fact,” id. at 409, to determine whether the question is one of “ ‘great’ or ‘overwhelming’ weight” of the evidence or, rather, “a question of the credibility of witnesses testifying to diametrically opposed assertions of fact.” Id. at 412. Justice O’Hara suggests that, unlike Justice Cavanagh’s reference to the unique position of the trial court judge, unless it can be said that directly contradictory testimony was so far impeached that it “was deprived of all probative value or that the jury could not believe it,” id. at 410, or contradicted indisputable physical facts or defied physical realities, the trial court must defer to the jury’s determination. “So concluding we must, despite any misgivings or inclinations to disagree, leave the test of credibility where our system reposed it — in the trier of the facts.” Id. at 412. To state as does the concurrence that a trial judge sits as a thirteenth juror, that is, to “invoke this perspective sparingly,” post at 652 is to articulate an unreviewable standard that invites judges so inclined to substitute their views for that of the jury.
v
In the instant case, the testimony of the victims was in direct conflict with that of the defendant. The defendant was effectively able to cross-examine the girls and attempt to discredit their testimony. The defendant also testified and presented his version of events to the jury. The credibility of a witness is determined by more than words and includes tonal quality, volume, speech patterns, and demeanor, all giving clues to the factfinder regarding whether a witness is telling the truth. State v Turner, 186 Wis 2d 277; 521 NW2d 148 (App, 1994). The jury was able to see, hear, and observe both the victims and the defendant and determine the credibility of their testimony. The jury found the defendant guilty of all the charges after viewing all the evidence and all the witnesses. The question being one of credibility posed by diametrically opposed versions of the events in question, the trial court was obligated, “despite any misgivings or inclinations to disagree,” to leave the test of credibility where statute, case law, common law, and the constitution repose it “in the trier of fact.” On the record presented, the jury’s evaluation was not inferior to that of the trial court.
CONCLUSION
The reasons cited by the trial judge in the opinion before us are an inadequate basis for disturbing the jury’s evaluations of credibility under the limitations of Herbert adopted today. Conflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial. The reasons cited do not evidence that the testimony contradicts indisputable physical facts or law. Any suggestion that the testimony is patently incredible or is so inherently implausible that it could not be believed by a reasonable juror is undermined by the court’s earlier conclusion that the evidence justified the conviction.
The reasons asserted by the trial judge for granting a new trial were grounded in the erroneous view that she could employ her status as a thirteenth juror to set aside the jury verdict. The trial court’s duty to protect the process encompasses a duty to the defendant, to the public, and to the constitutionally guaranteed role of the jury as determiner of disputed facts. We hold that fidelity to these principles dictates that, in this category of cases, the judge does not sit as a thirteenth juror. The thirteenth juror principle is an erroneous legal standard. It does not establish that an innocent person had been found guilty, or that the evidence preponderates heavily against the verdict so that it would be a serious miscarriage of justice to permit the verdict to stand.
However, because we find that the court did not err in ordering a new trial under the erroneous thirteenth juror standard previously permitted under Herbert, we affirm the decision of the Court of Appeals and hold that the newly adopted limitations on Herbert apply prospectively to cases not yet final as of the date of this decision.
Mallett, C.J., and Brickley, Weaver, and Taylor, JJ., concurred with Boyle, J.
MCL 750.520b; MSA 28.788(2).
MCL 750.520c; MSA 28.788(3).
MCL 750.520b(2); MSA 28.788(2)(2).
MCL 750.520c(2); MSA 28.788(3)(2).
In the interim, the prosecutor had filed a motion to disqualify Judge Youngblood, citing the judge’s views on witness credibility. This motion was denied by Judge Youngblood and later by Chief Wayne Circuit Judge James Rashid.
MCL 750.520h; MSA 28.788(8) explicitly states:
The testimony of a victim need not be corroborated in prosecutions under sections 520b to 520g.
MCR 6.419 provides:
(A) Before Submission to Jury. After the prosecutor has rested the prosecution’s case in chief and before the defendant presents proofs, the court on its own initiative may, or on the defendant’s motion must, direct a verdict of acquittal on any charged offense as to which the evidence is insufficient to support conviction. . . .
(B) After Jury Verdict. After a jury verdict, the defendant may file an original or renewed motion for directed verdict of acquittal in the same manner as provided by MCR 6.431(A) for filing a motion for a new trial.
MCL 730.518; MSA 27.3937(18) states:
In any city affected by the provisions of this act the judge presiding in any jury trial shall have the same power to direct a verdict for either party as is or may be possessed by judges of the circuit courts of the state.
Compare similar standards under FR Crirn P 29:
(a) Motion before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.
(c) ... If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed .... If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal.
In contrast, granting a new trial does not implicate issues of constitutional magnitude and is permissive in nature. Hampton, supra at 373; Herbert, supra at 475.
MCL 770.1; MSA 28.1098 provides:
The judge of a court in which the trial of an offense is held may grant a new trial to the defendant, for any cause for which by law a new trial may be granted, or when it appears to the court that justice has not been done, and on the terms or conditions as the court directs.
MCR 6.431(B) provides:
Reasons for Granting. On the defendant’s motion, the court may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice. The court must state its reasons for granting or denying a new trial orally on the record or in a written ruling made a part of the record.
Compare a similar standard under FR Crirn P 33:
The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment.
See, generally, 3 Wright & Miller, Federal Practice & Procedure, §§ 551, 553, and Seward, The sufficiency-weight distinction — A matter of life or death, 38 U Miami L R 147 (1983).
See Tibbs v Florida, 457 US 31, 38, n 11; 102 S Ct 2211; 72 L Ed 2d 652 (1982). The United States Supreme Court acknowledged that the Florida Supreme Court ruled that appellate courts in that state could no longer reverse convictions on the ground of the great weight of the evidence. However, the Court noted that “[cjourts in other jurisdictions sometimes rely upon the weight of the evidence to overturn convictions” and that some federal courts have interpreted FR Crim P 33 to permit a trial judge, “ ‘if required in the interest of justice,’ ” to “set aside a conviction that is against the weight of the evidence.” Id. at 38-39, n 12. The Court further noted that “[a] reversal based on the weight of the evidence . . . can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict.” Id. at 42-43.
See Herbert, supra at 479 (Boyle, J., dissenting):
In People v Johnson, 397 Mich 686, 687; 246 NW2d 836 (1976), this Court observed that “[a]s the trier of fact, the jury is the final judge of credibility.” Unfortunately, however, the opinion in Johnson (hereafter Johnson II) and an earlier order from this Court (People v Johnson, 391 Mich 834 [1974]) contain language that intimates judicial oversight of the credibility decisions of trial court juries. The Court of Appeals opinion in the case resulting in the first order of this Court in Johnson, People v Johnson, 52 Mich App 385; 217 NW2d 417 (1974), was based on a finding of injustice. The order of reversal relied on the dissenting opinion in Sloan v Kramer-Orloff Co, 371 Mich 403, 410-412; 124 NW2d 255 (1963). The issue in Johnson II was the standard for dismissal of charges. Therefore, the discussion in the opinion in Johnson regarding credibility oversight was dicta. [Brickley, J., concurred with Boyle, J.]
Tibbs, n 12 supra at 42. A reversal on the weight of the evidence does not mean that acquittal was the only proper verdict but, rather, that “the appellate court sits as a ‘thirteenth juror’ and disagrees with the jury’s resolution of the conflicting testimony.”
We note that the United States Court of Appeals for the Sixth Circuit has consistently refused to adopt this position.
The court of appeals . . . does not sit as a “thirteenth juror” to judge the credibility of witnesses. Neither do we reweigh the evidence. Rather, we are limited to examining the evidence produced at trial to determine whether the district court’s determination that the evidence [does or] does not “preponderate heavily against the verdict” is a clear and manifest abuse of discretion. [United States v Ashworth, 836 F2d 260, 266 (CA 6, 1988).]
Sheahan v Barry, 27 Mich 217, 226 (1873) states:
The division of functions between court and jury is one which is essential to the safe administration of justice, and a new trial will always be granted when the judge interferes with the lawful province of the jury. He has no right to take away from them the decision of any question of fact, and he cannot deprive them of the right to settle for themselves what witnesses or what testimony they will credit or discredit. This would be clearly error.
For jurisdictions recognizing the thirteenth juror concept, see Veitch v Superior Court of Santa Clara Co, 89 Cal App 3d 722, 730-731; 152 Cal Rptr 822 (1979), People v Ramos, 33 AD2d 344, 347; 308 NYS2d 195 (1970), and State v Hudson, 373 So 2d 1294, 1298 (La, 1979) (Tate, J., concurring); contra see People v Noga, 196 Colo 478, 480; 586 P2d 1002 (1978) (holding that a judge may never upset a jury verdict for the sole reason that if he were finder of fact he would have ruled otherwise), and State v Bowle, 318 So 2d 407, 408 (Fla App, 1975) (holding that a trial judge is not permitted to sit as a seventh juror pitting his judgment against that of the jury). For courts subsequent to Jackson rejecting the concept, see State v Kringstad, 353 NW2d 302, 307 (ND, 1984) (holding that a trial court’s discretion to grant a new trial is more restricted than the discretion implied by the thirteenth juror concept), and United States v Rothrock, 806 F2d 318, 322 (CA 1, 1986) (a trial judge is not a thirteenth juror who may set aside a verdict because he would have reached a different result).
United States v Thomas, 894 F Supp 58, 63 (ND NY, 1995) (such motions are not favored and should be granted only with great caution in exceptional circumstances).
“Such a rule would seriously intrude upon the jury’s function.” State v LaDabouche, 146 Vt 279; 502 A2d 852 (1985).
See MCL 769.26; MSA 28.1096:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examina tion of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.
United States v Dockray, 943 F2d 152, 157 (CA 1, 1991) (a new trial may be granted on the basis of the great weight of the evidence if the verdict is a miscarriage of justice, the evidence preponderates heavily against the verdict, or a jury result is seriously erroneous); United States v Sanchez, 969 F2d 1409, 1414 (CA 2, 1992) (the discretion to grant a new trial in the interest of justice should be exercised sparingly, with great caution under extraordinary circumstances); United States v Arrington, 757 F2d 1484, 1486 (CA 4, 1985) (discretion should be exercised sparingly and a new trial granted only when the evidence weighs heavily against the verdict); United States v Robertson, 110 F3d 1113, 1120, n 11 (CA 5, 1997) (the power to grant a new trial should be exercised with caution, invoked only in exceptional cases in which the evidence preponderates heavily against the verdict); United States v Ashworth, n 14 supra (exercise of discretion to grant a new trial should be used only in extraordinary circumstances when the evidence preponderates heavily against the verdict); United States v Lincoln, 630 F2d 1313, 1319 (CA 8, 1980) (a new trial should be granted only where the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice occurred); United States v Rush, 749 F2d 1369, 1371 (CA 9, 1984) (motions for a new trial should be granted only in exceptional circumstances when the evidence preponderates heavily against the verdict); United States v Evans, 42 F3d 586, 593-594 (CA 10, 1994) (the power to grant a new trial on the weight of the evidence should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict); United States v Martinez, 763 F2d 1297, 1313 (CA 11, 1985) (motions for new trials on the basis of the weight of the evidence are not favored and should be granted sparingly and only in exceptional cases).
Citing with approval, United States v Arrington, United States v Rush, and United States v Lincoln, n 20 supra, and United States v Indelicato, 611 F2d 376, 387 (CA 1, 1979).
Criminal cases are usually fought on the battlefield of witness credibility, United States v Friedland, 660 F2d 919, 931, n 13 (CA 3, 1981), and this is particularly true in situations involving the credibility of a victim of a esc crime where the only witnesses present are the victim and the perpetrator, with the credibility of a professed accomplice to an unwitnessed crime, or the credibility of a coconspirator to a conspiracy, which, by its very nature, is a clandestine offense often known only to its members. It is a well-established rule that a jury may convict on the uncorroborated evidence of a esc victim, People v Smith, 149 Mich App 189, 195; 385 NW2d 654 (1986), citing MCL 750.520h; MSA 28.788(8); a professed accomplice, People v Barron, 381 Mich 421; 163 NW2d 219 (1968) (a jury may convict on uncorroborated evidence of a professed accomplice); or in federal court on the uncorroborated testimony of a coconspirator, People v Martinez, 844 F Supp 975 (SD NY, 1994). Jury decisions in these cases are essentially based on the jury’s assessment of the witnesses’ credibility. In general, the trial courts “ ‘must defer to the jury’s resolution of the weight of the evidence and the credibility of the witnesses,’ ” and only where exceptional circumstances can be demonstrated may the trial judge “intrude upon the jury function of credibility assessment.” United States v Sanchez, n 20 supra at 1414.
See also Marshall v United States, 141 US App DC 1, 2, n 1; 436 F2d 155 (1970).
The judicial mind does not always ascribe the same degree of credibility to a witness or witnesses as does the composite mind of the lay jury. Justice Campbell wrote:
Courts cannot assume that the witnesses whom they would most credit are to be followed by the jury. And however much they may be discontented with the result, they cannot usurp the functions of the jury. [Marcott v Marquette H & O R Co, 47 Mich 1, 7; 10 NW 53 (1881).]
The prosecutor suggests that, following Hampton, there may be little meaningful distinction in criminal cases between the new trial standard and the standard for a directed verdict. We do not reach or adopt that position.
Bart, supra at 12, appears to follow this method of analysis in assessing the adequacy of the reasons for granting the motion for a new trial.
The standard of appellate review regarding a trial judge’s decision to grant or deny a motion for a new trial is “entrusted to the discretion of the trial court and that decision will not be disturbed on appeal without a showing of an abuse of discretion . . . People v Hampton, supra at 373. Absent an abuse of discretion, the decision of the trial court must be affirmed. The Court of Appeals found and we agree that there was no abuse of discretion under the previously established thirteenth juror standard. | [
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Per Curiam.
The issue presented is whether the circuit court, which conducted an in-camera review of privileged documents on remand from this Court, abused its discretion in denying a new trial on the basis that the documents were not material to the case. We hold that the circuit court did not abuse its discretion and, thus, reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.
i
The defendant, a staff worker at a home for children with severe behavior problems, was convicted by a jury of sexually assaulting a thirteen-year-old resident in 1985. The circuit court imposed concurrent prison terms of ten to twenty years and seven to fourteen years for one count each of first- and second-degree criminal sexual conduct.
The incident was not reported until 1986, when a social worker spoke with a fourteen-year-old resident about reports that the boy had observed sexual activity between the defendant and a younger boy. By this time, the defendant had quit his part-time job at the facility.
After the social worker spoke with the younger boy, police investigated the matter and formally charged the defendant with sexual misconduct. The social worker and the two boys were the main witnesses for the prosecution.
In advance of trial, the defense subpoenaed certain records from the facility where the boys were residing, as well as another agency. The two agencies responded that the records were protected by the statute pertaining to the licensing of child-care organizations, and a provision in the Occupational Code regarding certified social workers. The circuit court agreed that the files were privileged, and quashed the subpoena.
The Court of Appeals affirmed the defendant’s convictions and sentences in an unpublished opinion per curiam.
The defendant appealed to this Court. Without retaining jurisdiction, we remanded the matter to the circuit court for an in-camera review of the documents requested by the defendant. Our order further provided:
If any of the documents are favorable to defendant and material to the case, a new trial should be granted. If the documents were not favorable or material to defendant’s case, any error in failing to have such an inspection prior to trial would be harmless. Pennsylvania v Ritchie, 480 US 39 [107 S Ct 989; 94 L Ed 2d 40] (1987). [437 Mich 987 (1991).]
On remand, the circuit court held a hearing regarding the nature of the inspection it had been ordered to conduct. The court said that it would be looking for evidence of motive to harm the defendant, previous false accusations made against staff members by either of the two boys, evidence of a psychological condition related to the credibility of the two boys or their account of the events, a history of collusion between the two boys on false accusations against anyone, and the inability of either boy to understand the difference between truth and falsehood.
Following its review, the circuit court reported to the parties in 1992 that it had not found any such evidence. Nonetheless, the court said that it was going to turn over several documents to the defense that might “tend to be helpful,” although they would not have changed the outcome of the trial. “But I felt, in fairness to the defense, I should identify them for the defense and make them available.” The court said that the best the defense could have done if aware of the reports was to subpoena the authors and question them regarding what they had observed.
On the basis of this disclosure, defense counsel located the authors of the documents and obtained their testimony. The circuit court denied the defendant’s amended motion for a new trial in 1993, however, reaffirming that the documents were not material, as defined in Pennsylvania v Ritchie, supra.
The defendant again appealed to the Court of Appeals. In an unpublished opinion per curiam, the panel unanimously reversed.
The Ingham County Prosecutor asks this Court to reverse the decision of the Court of Appeals and to reinstate the decision of the circuit court.
n
In Pennsylvania v Ritchie, the defendant sought access to files of the protective-service agency that had investigated allegations of sexual misconduct involving his minor daughter, as well as an earlier allegation of abuse. The agency refused to release the files on the ground that they were protected by statutory privilege, and the trial court declined to order disclosure. The Pennsylvania Supreme Court held that the ruling violated both the Confrontation and Compulsory Process Clauses of the Sixth Amendment. Saying that the defense must be given a chance to examine the information, the court remanded for fur ther proceedings to determine whether a new trial should be granted.
The United States Supreme Court said in Ritchie that the appropriate analysis is under the Due Process Clause of the Fourteenth Amendment. Under due process principles, the prosecution is obligated to disclose evidence that is both favorable to the defendant and material to the determination of guilt or punishment. Evidence is material only if there is a reasonable probability that the trial result would have been different, had the evidence been disclosed.
In Kyles v Whitley, 514 US 419; 115 S Ct 1555; 131 L Ed 2d 490 (1995), the Court explained that there are four aspects of “materiality.” First, the touchstone of materiality is a “reasonable probability” of a different result. The question is not whether the defendant would have been more likely than not to have received a different verdict, but whether he received a fair trial in the absence of the evidence, i.e., a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result exists where suppression of the evidence undermines confidence in the outcome of the trial.
Second, the Kyles Court said that the inquiry into materiality does not test the sufficiency of evidence. Rather, one claiming a violation must show that the favorable evidence could reasonably be taken to put the whole case in such a different light so as to undermine confidence in the verdict.
Third, if there is a finding of constitutional error, it cannot be considered harmless.
Fourth, the suppressed evidence must be considered collectively, not item by item.
Although the Supreme Court did not mention its 1987 ruling in Ritchie when it decided Kyles in 1995, the due process analysis in Kyles clearly applies to arguments like those presented in Ritchie, including the claims of this defendant. The Ritchie Court discussed prior case law in the context of the requirements for a fundamentally fair trial under the Fourteenth Amendment. In Kyles, the Court simply enlarged upon that discussion.
Seven years after Ritchie and one year before Kyles, this Court decided People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994). We held that where a defendant can establish a reasonable probability that privileged records are likely to contain favorable and material information that is necessary to the defense, the court should conduct an in-camera review. Consistent with Ritchie, we held that evidence protected by privilege should be provided to defense counsel only if the court finds that the evidence is essential to the defense. We found that defendant Stanaway’s pretrial request had fallen short of the specific justification necessary to obtain in-camera review. We said that the record in the companion case involving defendant Caruso was not sufficiently clear regarding the grounds for the in-camera inspection ordered by the trial court, and that a remand was necessary. Id., pp 681-683.
in
In the case before us, the documents that the circuit court released consisted of 1985 reports from two teachers regarding the older boy who allegedly witnessed the sexual misconduct, and a 1983 review summary written about the younger boy by a social worker with another agency. The teacher evaluations indicated that the witness was an “accomplished liar and thief,” and that he told falsehoods “even when confronted with direct evidence of wrongdoing and will insist loudly that he didn’t do anything.” The social worker’s report stated that while in two foster-care homes, the younger boy had said he would “report adults to various authorities, threatening to charge them with various forms of abuse, if he was not granted his every wish . . . .” The report noted that there was no concern of abuse or neglect in either home, and the agency believed the threats demonstrated the boy’s need to be manipulative and in control. His behavior also included “sexual provocation directed mostly at other children.”
The circuit court denied the defendant’s motion for a new trial on the ground that nothing in the reports related to motive, and there was no psychiatric or psychological description that related to either boy’s account of the incident. Nor were there statements that would tend to impeach either boy’s account, and there was no evidence of false accusations against staff members, collusion or friendship, or the inability of either boy to understand the difference between the truth and a lie.
As for the 1992 testimony of the two teachers who had written about the older boy, the court noted that neither could recall the basis for her report, only that it reflected observations rather than hearsay. Both also agreed that all the students at the facility had emotional problems, and many of them lied. With regard to the younger boy, the social worker could not recall specific conversations or incidents that she had observed. She did remember the boy’s appearance, however, and that “he was very up front in some ways.” She said she would not use the word “deceptive” to characterize him, however.
The circuit court concluded that it was purely speculative whether any of these witnesses would have had a better memory at the time of the 1988 trial, or six months before trial. Regardless, their testimony would have been of questionable relevance as a collateral attack on credibility, and any basis for reputation evidence also was speculative. Moreover, jurors had the opportunity to judge the credibility of the defendant and the two boys. While there was evidence that the boys sometimes did lie, there was no evidence of a motive to falsely accuse the defendant.
In reversing the circuit court, the Court of Appeals reasoned that the documents released by the circuit court were the strongest evidence the defendant had. Not only did the social worker’s report indicate that the younger boy had threatened to accuse adults of abuse in order to exert control, but there was less likelihood of potential bias because the social worker was from a different agency. As for the two reports about the older boy, they were the only evidence that directly challenged his reputation for veracity, and were written by teachers who did not work with the defendant, the Court said. It was not dispositive that the documents did not refer to false accusations against staff members at the present facility because past false accusations against other persons are relevant in assessing credibility in a subsequent case.
IV
We generally review a trial court’s determinations of evidentiary issues for an abuse of discretion. People v Adair, 452 Mich 473, 485; 550 NW2d 505 (1996), citing People v Perkins, 424 Mich 302, 308; 379 NW2d 390 (1986). This includes decisions on discovery requests. Stanaway, p 680. Close questions arising from the trial court’s exercise of discretion on an evidentiary issue should not be reversed simply because the reviewing court would have ruled differently. People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995), quoting People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982). The trial court’s decision on a close evidentiary question ordinarily cannot be an abuse of discretion. Id.
The circuit court in this case did not abuse its discretion in denying the defendant’s motion for a new trial on the basis that the requested documents were not “material” within the meaning of federal precedent as explained in Kyles and Stanaway. The Court of Appeals improperly substituted its assessment for that of the circuit court.
As we noted, the United States Supreme Court has said that the touchstone of materiality in a circumstance such as this is a “reasonable probability” of a different result. The question is whether, in the absence of the disputed evidence, the defendant received a fair trial, i.e., a trial resulting in a verdict worthy of confidence. The suppressed evidence must be viewed collectively, not item by item.
We disagree with the Court of Appeals that the aggregate effect of the disputed documents, when viewed in the full context of the trial, “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, p 435. The younger boy admitted at trial that he told lies and that he acted out sexually both at the facility and in foster homes. He also admitted setting up children and staff by making false accusations, and that he sexually propositioned other boys and staff members.
Moreover, one of the defendant’s co-workers testified that the boy made sexual propositions to other children on numerous occasions, that his general reputation for truthfulness was not good, and that there was nothing he would not do sexually. Thus, nothing in the materials would have constituted significant new information that could have been used for impeachment purposes. The jury also was well aware of the troubled background of the older child.
Although the circuit court did not have the benefit of Kyles or Stanaway when it denied the defendant’s amended motion for a new trial in 1993, on remand from this Court, the circuit court determined that the documents in question were not material to the defendant’s case under Ritchie. As we have explained, such evidentiary rulings are entrusted to the discretion of the trial court, and there was no abuse of discretion in this instance. The fact that the circuit court earlier had released several documents, anyway, for the reason that they might have been “helpful” to the defense, does not change the analysis or transform the circuit court’s 1993 ruling into an abuse of discretion.
v
For the reasons given, and in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Boyle, Weaver, and Taylor, JJ., concurred.
MCL 750.520b(l)(b); MSA 28.788(2)(l)(b) and MCL 750.520c(l)(b); MSA 28.788(3)(l)(b).
MCL 722.111 et seq.) MSA 25.358(11) et seq.
MCL 339.1610; MSA 18.425(1610).
Issued April 30, 1990 (Docket No. 108107).
Issued September 20, 1996 (Docket No. 167536).
The Ritchie Court affirmed the remand for further proceedings, but reversed the state supreme court’s directive that the defense be allowed to examine the records. An in-camera inspection by the trial court would fully protect both the defendant’s and the prosecution’s interests in ensuring a fair trial, the Court said.
After this Court decided Stanaway, we amended MCR 6.201(C) to provide for the in-camera inspection of records protected by privilege, under the circumstances discussed in Stanaway. The amendment took effect July 1, 1996.
Defendant Stanaway challenged the denial of discovery on appeal, following his conviction. The prosecution brought an interlocutory appeal of the trial court’s order granting defendant Caruso’s request for an in-camera inspection.
There was a fourth document, a one-page “Parents’ Questionnaire,” but the three reports were the primary concern.
One of the teachers testified at a hearing before the circuit court, and the other teacher and the social worker testified by deposition.
Where the federal and state constitutions contain virtually identical provisions, the federal constitution should be followed, absent compelling reasons for an expansive interpretation of the state constitution. Stanaway, p 649, n 1.
US Const, Am XIV provides, in part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ....
The Michigan counterpart, Const 1963, art 1, § 17, provides, in part:
No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or properly, without due process of law. | [
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Cavanagh, J.
We granted leave in this case to determine whether the defendant, Southfield Public Schools, was properly granted summary disposition on the basis of the immunity extended to governmental entities in MCL 691.1407(1); MSA 3.996(107)(1). We find that plaintiffs have alleged an actual danger or defect in the Southfield High School swimming pool so as to fall within the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106). Summary disposition in favor of the defendant was improperly granted.
I. STATEMENT OF FACTS AND PROCEEDINGS
Plaintiffs’ claim is based on injuries Devin Sewell sustained during his ninth grade swimming class at Southfield High School. On November 17, 1992, Sew-ell and several of his classmates were instructed to swim five laps in the pool. Three students dove into the pool near the area where the pool was marked five-feet deep. Plaintiff followed suit and struck his head on the bottom of the pool. Sewell climbed out of the pool and informed the student assistant of what had happened. The student assistant told the instructor of the incident. Sewell was told to change into his clothes and he down on the couch in the office. Later, when the head of the physical education department told SeweU to get up and call his parents, plaintiff discovered that he could not move. Ultimately, it was determined that SeweU had fractured his spine and had to undergo corrective surgery.
Plaintiffs brought the instant action against South-field PubUc Schools, the swimming instructor, the instructor’s student assistant, and the head of the physical education department. With respect to the school, plaintiffs alleged that the school had maintained a dangerous and defective building by having a pool with an uneven floor by improperly marking the depth of the pool, by not posting warning signs against diving in the shallow end, and by allowing students to dive in the shallow end.
In a written opinion and order, the trial court granted defendant’s motion for summary disposition. It held that
[t]he complaint does not allege any facts to support a finding that the pool itself was defective or unsafe for its intended and foreseeable use. The crux of the complaint is that no one kept an eye on students to stop them from diving into the shallow end of the pool or warned them against such activity. Pursuant to [Hickey v Zezulka (On Resubmission), 439 Mich 408, 422; 478 NW2d 106 (1992)], the Court finds that such claims amount to safety in the building, not a defect in the building and defendant school system is thus entitled to immunity.
Plaintiffs appealed, and a majority of the Court of Appeals echoed the sentiment of the trial court. It found that the dive and subsequent injuries related “to safety in a public building and allegations of improper supervision,” rather than a defect or danger in the pool itself. Unpublished opinion per curiam, issued March 22, 1996 (Docket No. 169851), slip op at 2. The dissent argued that plaintiffs had alleged a building defect, rather than a failure of supervision. We granted leave to appeal. 454 Mich 909 (1997).
H. CASE LAW
A. STANDARD OF REVIEW
We review a motion for summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996). Defendant’s motion is predicated on MCR 2.116(C)(7), which provides for summary disposition when a claim is barred by an immunity granted by law. In reviewing such a motion, a court must consider all documentary evidence filed or submitted by the parties. MCR 2.116(G)(5); Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). However, “the contents of the complaint must be accepted as true unless specifically contradicted by the affidavits or other appropriate documentation submitted by the movant.” Id. at 434, n 6.
B. PUBLIC BUILDING EXCEPTION
Generally, a governmental entity is immune from tort liability for actions that accrue while it is performing a governmental function. MCL 691.1407(1); MSA 3.996(107)(1). “This immunity is broad in scope, subject to a limited number of narrowly drawn exceptions.” Reardon v Dep’t of Mental Health, 430 Mich 398, 407; 424 NW2d 248 (1988). The exception at issue in this case is the public building exception, which states in part:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowl edge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. [MCL 691.1406; MSA 3.996(106).]
This Court has established a five-part test to determine whether the public building exception governs in a particular case. A plaintiff must establish that (1) a governmental agency is involved, (2) the public building in question is open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period. Jackson v Detroit, 449 Mich 420, 428; 537 NW2d 151 (1995). The third prong of this test is at issue in this case: whether a dangerous or defective condition exists in the building itself.
Because the public building exception applies only where the physical condition of the building itself causes the injury, the government’s duty is to “maintain safe public buildings, but not necessarily safety in public buildings.” Reardon, supra at 417. We have previously held that a building may be dangerous or defective because of improper design, faulty construction, or the absence of safety devices. Hickey, 439 Mich 422. However, whether a building is dangerous or defective must be determined in light of the uses or activities for which it is assigned. Id. Thus, in certain circumstances the public building exception will not apply where proper supervision would have offset any shortcomings in the configuration of the room. Id. As we explained in de Sanchez v Mental Health Dep’t:
In Reardon and Schafer [v Ethridge, 430 Mich 398], sexual assaults on a student and patient were found not to state a claim in avoidance of governmental immunity because the building, which was being used for its intended purpose, was not defective. Unlike Bush [v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979),] and Williamson [v Dep’t of Mental Health, 176 Mich App 752; 440 NW2d 97 (1989)], in which defects in the buildings were allegedly contributing causes of the injuries, the consolidated cases of Reardon and Schafer involved nothing more than mere negligence. It is in this context that the Court in Schafer declared that “proper supervision would have offset any shortcomings in the configuration of the room.” [455 Mich 83, 93; 565 NW2d 358 (1997).]
In other words, where the essence of a plaintiff’s claim is negligent supervision, the plaintiff cannot properly allege a building defect merely because a superior building design would have facilitated better supervision. But where the essence of a claim is a defect in the building itself, “summary disposition may not be granted simply by claiming that proper supervision would have averted the injury.” Id. at 95-96. We must decide whether plaintiffs have properly alleged that this pool, when used for its proper purpose, was defective, or whether plaintiffs’ claims amount to nothing more than negligent supervision.
m. ANALYSIS
The first step in our analysis is to determine the intended use or purpose of the pool. Defendant argues that, at the time of the injury, the assigned use of the pool was for swimming, not diving. As the Court explained in Bush, when a mathematics classroom was used as a physical science room, it “had to meet the standards of a physical science room although it had once been a mathematics room.” 405 Mich 732. Defendant argues that the same principle should apply with equal force to this case. Since the specific purpose of this class was limited to swimming, plaintiffs must allege a danger or defect in the pool relating to swimming, not to diving. Under the defendant’s theory, any claim based on an injury sustained while diving into the pool would be based on a misuse of the public facility, and the government should not owe a duty of care for such misuse.
We disagree with the defendant’s characterization of diving into the pool as misuse of the pool. It is clear that diving was a contemplated use of this pool. First, the pool was equipped with diving facilities at one end, which contained springboards for the specific purpose of diving into the pool. Second, the shallower end of the pool was equipped with starting blocks, which provide an elevated platform for competitive swimmers to dive off at the start of a race. Third, the Michigan Department of Public Health’s administrative rules regarding public swimming pools require, in part, that “[w]here the . . . depth [of the pool] is less than 5.0 feet . . . the words ‘no diving’ shall be placed between the depth markers on the deck.” 1983 AACS, R 325.2132(2). The import of this rule is that diving is not allowed in less than five feet of water, but it may be allowed in five or more feet of water. Fourth and finally, plaintiffs presented testimony that students in the class often dived into the pool without being admonished for doing so.
To accept defendant’s argument, we would have to focus solely on the word “swimming” in the title of this structure. However, as we explained in Bush, “[a] school is not a school because it is called one, but because it is used and functions as one.” 405 Mich 732. Similarly, the use of a swimming pool is not limited only to swimming because the title of the structure is not “swimming and diving pool.” In this case, we believe it was not a misuse of the pool to enter into it by diving. Defendant’s duty was to construct, repair, and maintain the swimming pool in such a way that it was safe for both swimming and diving, and defendant can be held liable for any defective or dangerous condition that injured a person who was either swimming or diving.
Once we have determined that the public building was being used properly, we must next review plaintiffs’ proofs to determine if they have alleged an actual defect in the building. Plaintiffs argue that a dangerous or defective condition existed in the pool because of faulty construction and improper design. In support of these allegations, plaintiffs point to the affidavits of Dan Nearhood, a graphic artist, and Frederick Carter, a water-safety specialist. Mr. Nearhood testified by affidavit that his measurements of the pool indicated that the pool depth markers were mismarked in the area where the dive took place, and that the pool floor was uneven. In particular, the spot from which plaintiff dived was marked as 5’ deep, but was in fact anywhere from 4’ KFA” deep to 4’ %” deep.
Mr. Carter, the water-safety specialist, stated in his first affidavit:
From the design standpoint, the sharp up-slope of the pool bottom at the exact location a dive from the side of the pool might occur and the fact that most pools are constructed to be deeper as you move away from the wall, left this high school student with a false understanding of the pool. To worsen the situation, the depth marker marked the pool at the deepest point next to the wall and not the shallower depth where the dive would likely occur.
In a second affidavit, Mr. Carter opined that “the design failure of the pool bottom at the point of injury completely removes the issue of supervision. No amount of supervision could offset the poor design and layout of both areas.” Plaintiffs argued before both the trial court and the Court of Appeals that this evidence was sufficient to prevent summary disposition.
Both the lower courts disagreed, holding that the plaintiffs’ claim was really one of improper supervision rather than an actual building defect. In particular, the Court of Appeals majority evaluated plaintiffs’ proofs, and found that they were insufficient to support the claim of a design defect:
Contrary to what plaintiffs argue, a fair reading of the letter of aquatic safety specialist Frederick S. Carter did not raise a fact question regarding a structural defect in the pool; it merely reached the unsupported conclusion that the pool’s sloping bottom “left this high school student with a false understanding of the pool.” Similarly, the affidavit of graphic artist Dan Allen Nearhood merely reached the conclusion that the pool was less than five feet deep and had a sloping bottom. In light of plaintiffs’ pleadings indicating a belief that the pool was 3‘A feet deep where he dived, this affidavit does not advance his position. Finally, the inspection report prepared by an Oakland County Health official did not reveal that the bottom of the pool contained areas with variations in surface levels, as plaintiffs assert. Rather, the report stated that “pool bottom appears to be discolored, black areas need cleaning and possible resurfacing.” In the absence of evidence that Devin’s injuries were the result of a structural defect rather than lack of instruction or supervision, the trial court correctly declined to find that this case came within the defective building exception to governmental immunity. [Slip op at 2-3.]
We disagree with the majority of the Court of Appeals analysis of the evidence. Because this is an appeal of a motion for summary disposition based on MCR 2.116(C)(7), a reviewing court must accept all the nonmoving party’s uncontested allegations and evidence as true. Patterson at 432. As the above passage indicates, the Court of Appeals failed to construe plaintiffs’ evidence in a light most favorable to the nonmoving party. The Court found that plaintiffs’ experts’ conclusions were not credible, and, therefore, that there was no evidence of an actual defect in the pool. However, the purpose of summary disposition is not to evaluate the weight of plaintiffs’ proofs. Rather, the reviewing court’s task is to determine whether the plaintiffs have stated a valid claim at law.
When plaintiffs’ proofs are given the proper deference, they allege a defect within the pool. As stated in the Court of Appeals dissent:
Plaintiffs asserted, and presented affidavits and a letter in support of their claims, that the pool depth markers were mismarked; that the pool floor was uneven and the pool was not five feet deep as it was supposed to be, but was less, in some spots 4l/2 feet and in some spots 4 feet % inches deep; that the pool had “a sharp up-slope” at the location a dive from the side of the pool might occur, whereas most pools are constructed to be deeper as one moves away from the wall; and that the pool did not comply with the applicable statutes and rules. These claims allege a building defect rather than a failure of supervision.
IV. CONCLUSION
For these reasons, we believe that summary disposition was improperly granted under MCR 2.116(C)(7). Plaintiffs have alleged an actual defect in the swimming pool for purposes of the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106). The decision of the Court of Appeals is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.
Mallett, C.J., and Brickley, Boyle, Weaver, Kelly, and Taylor, JJ., concurred with Cavanagh, J.
The claim of gross negligence against the student assistant and the head of the physical education department was dismissed on summary judgment. The claim involving the instructor’s alleged gross negligence was originally dismissed by the trial court, but the Court of Appeals reinstated the claim and remanded it to the trial court. The claim of intentional infliction of emotional distress against both the instructor and his student assistant was also dismissed on summary disposition. Plaintiffs only sought leave to appeal with regard to the claim against the school, and the instructor did not appeal the reinstatement of the gross negligence claim against him. Therefore, the only claim before this Court is the one against the school. Use of the word “defendant” in this opinion refers only to the Southfield Public Schools.
The rules do allow diving in less than five feet of water for competitive swimming. “Nothing in this rule shall preclude the use of a swimming pool for competitive swimming.” 1983 AACS, R 325.2132(4).
This does not mean that the defendant has to make the entire pool safe for diving. Defendant’s duty only extends to areas where diving is appropriate or allowed.
The only issue presented in the motion for summary disposition and argued on appeal is the existence of an actual defect in the pool. Thus, we do not express any opinion regarding the plaintiffs’ ability to prove any other aspect of their case.
5 Although we rely in part on the testimony of plaintiffs’ water safety expert, ante at 678-679, we do not rely on the expert’s statements regarding the subjective perceptions of Devin Sewell. While Sewell’s perceptions may be relevant to other aspects of plaintiffs case, they are not sufficient to create a question of fact regarding the existence of a building defect. | [
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TAYLOR, C.J.
At issue in this case is whether the requirement of the offer of judgment rule, MCR 2.405, to stipulate “to the entry of a judgment in a sum certain” such as to trigger the operation of the rule, and its sanction provisions, is met if the putative offer would culminate in a judgment, not for a sum certain but in a dismissal with prejudice and without costs only. The trial court and Court of Appeals held that an offer in a quiet title action in which the plaintiffs offered $3,000 to defendants in return for a quitclaim deed, after which a judgment for dismissal with prejudice and without costs would enter, was the offer of a sum certain such as to establish the predicate for the operation of the offer of judgment rule. Because we conclude this was not an offer for “the entry of a judgment of a sum certain” we reverse the judgments of the lower courts and remand to the trial court for entry of an order denying plaintiffs’ motion for offer of judgment sanctions.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs filed an action to quiet title asserting that they had acquired title to a small strip of land through adverse possession or acquiescence. During the pendency of the lawsuit, plaintiffs’ counsel sent defense counsel a letter on May 16, 2003, presenting an offer for settlement that he characterized as a “stipulation of entry of judgment” pursuant to MCR 2.405. The offer was that in return for payment by plaintiffs to defendants of $3,000 the defendants would convey the disputed land to plaintiffs by quitclaim deed and the parties would stipulate a dismissal of all claims “with prejudice and without costs.” Counsel for defendants replied by letter, acknowledging the offer but contesting that this qualified as an offer of judgment pursuant to MCR 2.405.
The offer was not accepted and a bench trial was held. The trial court entered a judgment and order quieting title in plaintiffs’ favor. Plaintiffs subsequently filed a motion seeking actual costs and attorney fees under the offer of judgment rule, MCR 2.405(D)(1). They asserted that the offer of settlement of May 16, 2003, qualified under the offer of judgment rule and, as the adjusted verdict at the conclusion of the trial was more favorable to the plaintiffs than the offer, they were entitled to offer of judgment sanctions.
Defendants opposed the motion, arguing that the offer was not for a sum certain because this was an equitable action, and even if this argument was unavailing the court should decline to award sanctions under the “interest of justice” exception set forth in MCR 2.405(D)(3).
The trial court rejected the argument that the offer of judgment rule did not apply to equitable actions, noting that the rule contains no distinction between cases decided in equity and those decided at law and determined that $3,000 was a sum certain. The court further rejected the claim that the demand for a quitclaim deed was the attachment of a condition that took the offer outside the scope of the court rule, holding rather that the offer was only in the form necessary to resolve plaintiffs’ equitable claim. Finally, the trial court declined to apply the interest of justice exception.
Upon appeal, the Court of Appeals affirmed in a published opinion per curiam. The Court first rejected the argument that the offer of judgment rule does not apply to equitable actions, distinguishing Hessel v Hes sel, 168 Mich App 390; 424 NW2d 59 (1988), which had held that the rule does not apply to proposed property settlements in divorce actions, which are, of course, equitable. "While acknowledging that, the Court opined that because $3,000 is a sum certain and the quiet title demand was akin to a dismissal, the rule of Hessel was inapplicable. Finally, the Court of Appeals concluded that the trial court had not abused its discretion in failing to invoke the interest of justice exception.
Defendants applied to this Court for leave to appeal, and we directed the clerk to schedule oral argument on whether to grant the application, asking the parties to brief (1) whether attorney fees and costs may be assessed pursuant to MCR 2.405(D) in a case involving an equitable claim to quiet title, and (2) whether the $3,000 offer in plaintiffs’ counsel’s letter was an offer of judgment under MCR 2.405(A)(1), in light of that rule’s requirement of a “sum certain” and given plaintiffs’ additional demand for a quitclaim deed. 477 Mich 854 (2006).
II. STANDARD OF REVIEW
The proper interpretation and application of a court rule is a question of law that this Court reviews de novo. CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002).
III. ANALYSIS
When called on to interpret and apply a court rule, this Court applies the principles that govern statutory interpretation. Grievance Administrator v Underwood, 462 Mich 188, 193; 612 NW2d 116 (2000). Accordingly, we look to the language of the court rule and in particular to that section which defines what an offer must be to qualify as an “offer of judgment.”
MCR 2.405 provides, in relevant part:
(A) Definitions. As used in this rule:
(1) “Offer” means a written notification to an adverse party of the offeror’s willingness to stipulate to the entry of a judgment in a sum certain, which is deemed to include all costs and interest then accrued. If a party has made more than one offer, the most recent offer controls for the purposes of this rule.
Thus, to be an “offer” the offer must propose to stipulate the entry of a judgment in a sum certain. There is no latitude given in this rule for offers of judgment that culminate in something other than a “judgment for a sum certain.” That is, it is nonconforming for the offer to require a reciprocal exchange of cash for the execution of a recordable real estate document culminating in a judgment of dismissal with prejudice and without costs. For such an offer, the offer of judgment rule is simply inapplicable and no consideration of the distinctions between equity and law is required to resolve this matter.
Accordingly, contrary to the holdings of the trial court and Court of Appeals, the plaintiffs’ offer that a quitclaim deed be provided for $3,000 and then a judgment of dismissal with prejudice and without costs would enter would not have culminated in a “judgment for a sum certain.” Thus, the tendered offer fell outside the scope of MCR 2.405(A)(1), and no costs and fees may be awarded under the rule.
IV CONCLUSION
We hold that the offer of judgment rule does not apply to lawsuits where the putative offer would not result in judgment for a sum certain. Because the offer plaintiffs made here was nonconforming with the offer of judgment rule, possible sanctions under that rule are unavailable. Thus, we reverse the contrary judgment of the Court of Appeals and the trial court order granting offer of judgment sanctions. The case is remanded to the trial court for the entry of an order denying plaintiffs’ motion for offer of judgment sanctions.
CAVANAGH and CORRIGAN, JJ., concurred with TAYLOR, C.J.
The case was not submitted to case evaluation pursuant to MCR 2.403. Per MCR 2.405(E), costs may not be awarded under the offer of judgment rule in a case that has been submitted to case evaluation under MCR 2.403 unless the case evaluation award was not unanimous.
This rule provides, “The court may, in the interest of justice, refuse to award an attorney fee under this rule.”
269 Mich App 217; 711 NW2d 84 (2005). | [
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MARKMAN, J.
We granted leave to appeal to consider the following issues: (1) whether the trial court committed error requiring reversal by admitting affidavits of merit as substantive and impeachment evidence; (2) whether the trial court committed error requiring reversal by allowing the jury to consider affidavits of merit that referenced a settling defendant; and (3) whether the trial court committed error requiring reversal in this case by admitting the deposition of a settling defendant as substantive evidence.
We reverse the judgment of the Court of Appeals because of its determinations regarding each of these issues. Regarding the first issue, we hold on the basis of MRE 801(d)(2)(B) and (C) and MRE 613 that the affidavits of merit were properly admitted as substantive evidence because they constitute admissions by a party opponent, and as impeachment evidence because they constitute prior inconsistent statements of witnesses. Regarding the second issue, we hold on the basis of MCL 600.2957 and MCL 600.6304 that the parties were permitted to refer to the involvement of nonparties and, therefore, the jury could have considered the affidavits of merit that referenced a settling defendant. Regarding the third issue, we hold that even if the deposition in this case was improperly used as substantive evidence, the error was harmless because the information was alternatively introduced through other permissible means.
I. FACTS AND PROCEDURAL HISTORY
In this medical malpractice case, the decedent, James Otha Barnett, III, died from a rare blood disorder after undergoing gall bladder surgery performed by defendant Dr. Renato Albaran, a general surgeon at defendant Crittenton Hospital. After surgery, Albaran detected Barnett’s low blood-platelet count. The most common cause of a low platelet count after surgery is disseminated intravascular coagulation (DIC) from postsurgical infection. Albaran consulted with defendant Dr. Muskesh Shah, a hematologist, and ordered a DIC screen to rule out postsurgical infection as a cause of Barnett’s low platelet count. Shah concluded that Barnett was suffering from an exacerbation of a preexisting platelet disorder, idiopathic thrombocytopenic purpura (ITP), and not from DIC. Because there was no evidence of internal bleeding or postsurgical infection, and because he felt that Shah had provided a reasonable explanation for the low platelet count, Albaran indicated that Barnett could be discharged after he was cleared for release by Shah.
Two days after being discharged from the hospital, Barnett returned with complaints of disorientation. Dr. William Bowman, the attending physician, consulted with Albaran, who concluded that there were no surgery-related problems. Bowman also consulted with defendant Dr. Cesar Hidalgo, a neurologist, who initially concluded that Barnett had suffered a stroke. At Hidalgo’s recommendation, Bowman consulted with Shah regarding the low-platelet condition, and a second DIC screen was ordered, but the results were not received until after Barnett passed away. After a computerized tomography (CT) scan indicated that Barnett had not suffered a stroke, Hidalgo recommended further testing, including a magnetic resonance imaging (MRI) evaluation, but Barnett died before the tests could be performed. It turned out that Barnett suffered from a rare clotting disorder, thrombotic thrombocytopenic purpura (TTP), that required immediate blood plasma infusions and transfusions. If left untreated, as it was here, TTP is nearly always fatal.
As the personal representative of the estate of her deceased husband, plaintiff Wapeka Barnett filed a medical malpractice action against Albaran and his professional corporation, Hidalgo and his professional corporation, Shah and his alleged employer Oncology & Hematology of Oakland, Crittenton Hospital, and Crittenton Corporation. Plaintiffs affidavits of merit were signed by a general surgeon, Dr. Scott Graham; a neurologist, Dr. Eric Wassermann; and a hematologist, Dr. Rachel Borson. Graham’s affidavit of merit stated that Albaran failed to take sufficient precautions to prevent a postsurgical infection before he discharged Barnett. Wassermann’s affidavit of merit stated that Hidalgo misdiagnosed Barnett’s condition as a stroke and failed to take proper precautions when Barnett was transferred to a different medical facility for the MRI testing. Finally, Borson’s affidavit of merit stated that Shah should have performed further testing, should have stabilized Barnett before discharging him from the hospital, and should have diagnosed TTP and initiated treatment.
Before trial, plaintiff settled with Crittenton Hospital, Crittenton Corporation, Shah, and Oncology & Hematology of OaMand. Albaran filed a motion for leave to file notice of nonparty fault pursuant to MCR 2.112(K), which the trial court initially granted. When Hidalgo filed a similar motion, the trial court adopted plaintiff’s position that the court rule was inapplicable in medical malpractice cases, because liability remains joint and several, and denied both Hidalgo’s and Alba-ran’s motions.
At trial, the testimony of plaintiffs three experts differed from their statements in their depositions and affidavits of merit. They stated that as part of their preparation for trial they had reviewed the hospital records and the doctors’ depositions and that Albaran and Hidalgo had violated standards of care by, among other reasons, failing to review and follow up on blood tests, and failing to diagnose or recognize TTP Albaran and Hidalgo sought to establish that, as a general surgeon and a neurologist respectively, they could not be expected to diagnose TTR which is purely a blood disorder, and that Shah, as the hematologist, was the doctor responsible for such a diagnosis. Graham conceded that he no longer believed that Albaran had violated the standard of care with regard to protecting Barnett against postoperative infection. However, Graham stated that it was inexcusable that neither Albaran nor Shah had reviewed the results of Barnett’s DIC screen. In response, defense counsel examined Graham with regard to the depositions of Albaran and Shah, where both testified that they had reviewed the DIC screen results. Albaran testified that he had reviewed the DIC screen results, that he had complied with the appropriate standard of care by requesting a hematology consultation, and that he had reasonably relied on Shah’s assessment of Barnett’s condition. Similarly, Hidalgo argued that he had reasonably relied on Shah’s diagnosis and that Bowman, the attending physician, had been responsible for ordering a hematology consultation.
At the outset of trial, plaintiff moved to exclude the admission of her experts’ affidavits of merit for any purpose and to exclude any reference to the fact that Shah had settled. The remaining defendants agreed that they would not mention the settlement at trial. Plaintiff and Albaran also agreed that Shah’s deposition would not be read to the jury and that, in return, plaintiff would not read to the jury the deposition of one of the defense experts, in lieu of their live testimony at trial. The trial court admitted plaintiffs affidavits of merit as substantive evidence, including the ones referring to Shah, and permitted defense counsel to cross-examine plaintiffs experts regarding the differences between the affidavits of merit and their trial testimony. The jury found in favor of defendants, and plaintiff filed a motion for a new trial, which the trial court denied.
Plaintiff appealed by right, claiming that she was entitled to a new trial because the admission of the affidavits of merit as substantive and impeachment evidence, together with the use of Shah’s deposition, denied her a fair trial. The Court of Appeals agreed and reversed the trial court’s judgment. 268 Mich App 157, 163; 706 NW2d 869 (2005). First, the Court of Appeals held that the admission of the affidavits of merit that referenced Shah and listed Shah as a defendant was improper under Brewer v Payless Stations, Inc, 412 Mich 673; 316 NW2d 702 (1982), and Clery v Sherwood, 151 Mich App 55; 390 NW2d 682 (1986), because it allowed the jury to speculate about a possible settlement. Second, the Court held that the affidavits of merit constituted inadmissible hearsay that could not be used as substantive evidence. Third, the Court held that the affidavits of merit were inadmissible as impeachment evidence because they were not inconsistent with the experts’ testimonies at trial, which were based on new facts developed throughout the course of discovery, and that even assuming that the use of the affidavits for impeachment purposes was proper, the trial court improperly permitted the affidavits to be given to the jury as exhibits. Finally, the Court of Appeals held that even though the use of Shah’s deposition was proper for impeachment of Graham’s testimony that there had been no review of the DIC screen results, its use as substantive evidence constituted error requiring reversal. We granted applications by Albaran and Hidalgo for leave to appeal. 477 Mich 851 (2006).
II. STANDARD OF REVIEW
A trial court’s decision whether to grant a new trial is reviewed for an abuse of discretion. Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001). An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006); Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). A trial court’s decision to admit evidence is also reviewed for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). However, when the trial court’s decision to admit evidence involves a preliminary question of law, the issue is reviewed de novo, and admitting evidence that is inadmissible as a matter of law constitutes an abuse of discretion. Id.
III. ANALYSIS
A. AFFIDAVITS AS SUBSTANTIVE AND IMPEACHMENT EVIDENCE
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). In pertinent part, MRE 801(d) provides that a statement is not hearsay in the following circumstances:
(1) Prior Statement of Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of peijury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
(2) Admission by Party-Opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity, except statements made in connection with a guilty plea to a misdemeanor motor vehicle violation or an admission of responsibility for a civil infraction under laws pertaining to motor vehicles, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship ....
Affidavits of merit are required to accompany a complaint alleging medical malpractice. MCL 600.2912d(1) provides:
Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiffs attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiffs attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiffs attorney concerning the allegations contained in the notice and shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. [Emphasis added.]
We disagree with the Court of Appeals that Borson’s affidavit of merit constitutes inadmissible hearsay. While an affidavit of merit is inadmissible under MRE 801(d)(1)(A) as a prior inconsistent statement because it is not given “at a trial, hearing, or other proceeding, or in a deposition,” an affidavit of merit nonetheless is admissible as an admission by a party-opponent under MRE 801(d)(2)(B) and (C). An affidavit of merit in this context constitutes a sworn statement regarding the applicable standard of practice or care, the health professional’s opinion that the applicable standard of practice or care was breached by the defendant, the actions that should have been taken or omitted by the defendant in order to have complied with the applicable standard of practice or care, and the manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged. MCL 600.2912d(1).
In order for plaintiff to demonstrate that she has a valid malpractice claim and as a precondition to initiating her action, plaintiff was required to file an affidavit of merit in support of her complaint. As part of the pleadings, an affidavit of merit is generally admissible as an adoptive admission; by filing the affidavit of merit with the court, plaintiff manifests “an adoption or belief in its truth.” MRE 801(d)(2)(B); see also MRPC 3.3(a)(4). In the instant case, from among the universe of potential experts, plaintiff hired experts of her own choosing to prepare the affidavits of merit, she was fully cognizant of the experts’ statements made in the affi davits, she voluntarily chose to submit those particular affidavits in support of her complaint, and she summoned the same experts as witnesses at trial. These steps each reflect an acceptance of the contents of the affidavits of merit sufficient, in our judgment, to constitute an adoption or belief in their truth.
Moreover, an affidavit of merit satisfies the requirements of MRE 801(d)(2)(C). An independent expert who is not withdrawn before trial is essentially authorized by the plaintiff to make statements regarding the subjects listed by MCL 600.2912d(1)(a) through (d). Therefore, consistent with the actual language of MRE 801(d)(2)(C), an affidavit of merit is “a statement by a person authorized by the party to make a statement concerning the subject. . . .” In the instant case, al though plaintiff had no right to control the content of the independent experts’ statements, she hired the experts and invested them with the authority to prepare affidavits of merit on her behalf. Subsequently, with full knowledge of the contents of these affidavits and with a belief that they demonstrated the validity of her claims, plaintiff submitted the affidavits of merit in support of her complaint. Plaintiff called the same experts as witnesses at trial and failed to amend the affidavits of merit to reflect any change in opinion. Plaintiff cannot now reasonably deny that she authorized the experts to make statements concerning the subject of the affidavits. *****7
While it is true that plaintiffs have a statutory obligation to submit affidavits of merit in support of their complaints before having the benefit of discovery, we cannot conclude that the nature of this obligation relieves them altogether of accountability for the substance of these statements. The purpose of the affida vits of merit is to deter frivolous medical malpractice claims by verifying through the opinion of a qualified health professional that the claims are valid. Scarsella v Pollak, 461 Mich 547, 548, 551; 607 NW2d 711 (2000). The purpose of the statutory obligation to submit affidavits of merit would be defeated, or at least significantly undermined, if there were to be no accountability —including potentially adverse consequences — for statements made on the basis of information available at the time the affidavits of merit were submitted. When confronted with admissions made in their affidavits of merit, the plaintiffs may reasonably point out to the fact-finder that they had access to a more limited factual development before discovery and explain the basis for any changes in opinion.
Furthermore, we disagree with the Court of Appeals that the affidavits of merit submitted by plaintiff are inadmissible as impeachment evidence. While evidence used exclusively for impeachment purposes is not substantively admissible without an independent basis, and therefore may not be introduced as an exhibit for the jury’s consideration, People v Rodgers, 388 Mich 513, 519; 201 NW2d 621 (1972); People v Wythcerly, 172 Mich App 213, 220; 431 NW2d 463 (1988); People v Alexander, 112 Mich App 74, 77; 314 NW2d 801 (1981), here, the affidavits of merit are admissible into evidence because they are party-admissions. MRE 613, which sets forth a set of preconditions for impeachment, provides:
(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request it shall be shown or disclosed to opposing counsel and the witness.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a -witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
Before attempting to impeach a witness by offering extrinsic evidence of a prior inconsistent statement, a litigant must lay a proper foundation in accordance with the court rule. Merrow v Bofferding, 458 Mich 617, 631; 581 NW2d 696 (1998); People v Jenkins, 450 Mich 249, 256; 537 NW2d 828 (1995); People v Weatherford, 193 Mich App 115, 122; 483 NW2d 924 (1992). To do so, the proponent of the evidence must elicit testimony inconsistent with the prior statement, ask the witness to admit or deny making the first statement, then ask the witness to admit or deny making the later, inconsistent statement, allow the witness to explain the inconsistency, and allow the opposite party to cross-examine the witness. MRE 613(b); People v Malone, 445 Mich 369, 382-385; 518 NW2d 418 (1994); Weatherford, supra at 122. However, “extrinsic evidence may not be used to impeach a witness on a collateral matter.. . even if the extrinsic evidence constitutes a prior inconsistent statement of the witness, otherwise admissible under MRE 613(b).” People v Rosen, 136 Mich App 745, 758; 358 NW2d 584 (1984).
The affidavits of merit provided by plaintiffs experts were inconsistent with their testimony at trial and were not offered on a collateral matter. Graham, Borson, and Wassermann clearly shifted the focus of their testimony against Albaran, and to a lesser extent against Hidalgo, after plaintiff and Shah settled. In their affidavits of merit, none of the experts stated that Albaran or Hidalgo violated the standard of care because they failed to diagnose or recognize TTP or failed to follow up on the DIC screen results. In her affidavit of merit, Borson claimed that Shah had a duty to diagnose TTP and follow up on the blood tests. However, at trial, Borson testified that all of Barnett’s treating doctors had been at fault for failing to review and follow up on Barnett’s blood test results. Graham, who made no mention of any error in diagnosis regarding the blood disorder in his affidavit of merit, testified at trial that Albaran had violated the standard of care by failing to review the DIC screen results and recognize that Barnett was suffering from TTP Furthermore, although Wassermann made no reference to this fact in his affidavit, Wassermann testified that Hidalgo violated the standard of care by failing to order a hematology consultation when he first saw Barnett, rather than waiting until the next day.
We do not believe that the changes in the experts’ testimony at trial were simply the result of additional information they gained through the course of discovery, but if they were, that was for plaintiff to argue. The experts’ affidavits of merit and trial testimony were based on the medical and autopsy records, information that had not changed during the course of discovery. Graham claimed that Albaran’s statement in his deposition that Albaran had not reviewed the DIC screen results was new information that had not been available at the time of Graham’s affidavit of merit. However, this information was already known to Graham; he testified that the medical records — records that were available to him before providing his affidavit— did not show that Albaran received the test results and therefore that Albaran had not reviewed the test re- suits. Similarly, virtually all the information relied on by Borson and Wassermann for their trial testimony had been available at the time they submitted their affidavits of merit.
Therefore, the affidavits of merit were admissible as admissions by a party opponent under MRE 801(d)(2)(B) and (C) because they are statements concerning which plaintiff has manifested an adoption or belief in their truth or, alternatively, statements by a person authorized by plaintiff to make a statement concerning the subjects listed in MCL 600.2912d(1). Moreover, the affidavits of merit were admissible as impeachment evidence because they constitute prior inconsistent statements of plaintiffs expert witnesses.
B. AFFIDAVITS REFERENCING SETTLING DEFENDANT
MCL 600.2957 and MCL 600.6304, two sections enacted or amended as part of the 1995 tort reform legislation, generally provide that the trier of fact in a tort action shall determine the comparative negligence of each person who contributed to the plaintiffs injury, regardless of whether that person is, or could have been, named as a party. MCL 600.2957 provides:
(1) In an action based on tort or another legal theory-seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the person’s percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.
(2) Upon motion of a party within 91 days after identification of a nonparty, the court shall grant leave to the moving party to file and serve an amended pleading alleging 1 or more causes of action against that nonparty. A cause of action added under this subsection is not barred by a period of limitation unless the cause of action would have been barred by a period of limitation at the time of the filing of the original action.
(3) Sections 2956 to 2960 do not eliminate or diminish a defense or immunity that currently exists, except as expressly provided in those sections. Assessments of percentages of fault for nonparties are used only to accurately determine the fault of named parties. If fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action.
In relevant part, MCL 600.6304 provides:
(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:
(a) The total amount of each plaintiffs damages.
(b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under section 2925d, regardless of whether the person was or could have been named as a party to the action.
(2) In determining the percentages of fault under subsection (1)(b), the trier of fact shall consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed.
(4) Liability in an action to which this section applies is several only and not joint. Except as otherwise provided in subsection (6), a person shall not be required to pay damages in an amount greater than his or her percentage of fault as found under subsection (1). This subsection and section 2956 do not apply to a defendant that is jointly and severally liable under section 6312.
(6) If an action includes a medical malpractice claim against a person or entity described in section 5838a(1), 1 of the following applies:
(a) If the plaintiff is determined to be without fault under subsections (1) and (2), the liability of each defendant is joint and several, whether or not the defendant is a person or entity described in section 5838a(1).
(b) If the plaintiff is determined to have fault under subsections (1) and (2), upon motion made not later than 6 months after a final judgment is entered, the court shall determine whether all or part of a party’s share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties ....
The fact-finder’s obligation to apportion fault among all liable persons is not altered by the creation of joint and several liability in medical malpractice actions. See Estate of Shinholster v Annapolis Hosp, 471 Mich 540, 549, 551; 685 NW2d 275 (2004); Salter v Patton, 261 Mich App 559, 565; 682 NW2d 537 (2004). Because under these provisions the jury is required to allocate fault of all persons, parties as well as nonparties, we believe that a jury may hear evidence regarding every alleged tortfeasor who has been involved, even parties who have been dismissed, and by the same token, that a party must be permitted to refer to the involvement of nonparties.
The Court of Appeals decision that the admission of the unredacted affidavits of merit referencing Shah constituted error requiring reversal fails to consider the language of the above statutes and restricts the parties from revealing the existence of a potentially liable nonparty. In deciding that the admission of the affidavits of merit referencing Shah was error, the Court of Appeals relied on Brewer and Clery.
In Brewer, in an attempt to strengthen its policy of encouraging settlements, this Court held that
[w]hen there is no genuine dispute regarding either the existence of a release or a settlement between plaintiff and a codefendant or the amount to be deducted, the jury shall not be informed of the existence of a settlement or the amount paid, unless the parties stipulate otherwise. Following the jury verdict, upon motion of the defendant, the court shall make the necessary calculation and find the amount by which the jury verdict will be reduced. [Brewer, supra at 679 (emphasis added).]
We determined in Brewer that because the uncertainty of juror reaction to evidence of settlements could be prejudicial to both parties, the potential admission of such evidence constitutes a foreseeable deterrent to settlements between plaintiffs and codefendants. Id. Because MCL 600.2957 and 600.6304 allow the parties to refer to the involvement of nonparties and because Brewer does not prohibit any reference to a nonparty, but merely prohibits mentioning the existence of a settlement or its amount, we conclude that Brewer can be reconciled with the above statutes. Thus, the Court of Appeals erred by completely restricting the parties from revealing the existence of a potentially liable nonparty. Moreover, the Court of Appeals reliance on Brewer was misplaced because, although the unredacted affidavits listed Shah as a defendant, the jury was never informed that plaintiff and Shah had reached a settlement.
In Clery, the trial court instructed the jury that certain parties had been dismissed before trial, without informing it that the parties were dismissed after a settlement had been reached. Relying on Brewer, the Court of Appeals found error requiring reversal in the trial court’s instruction and held that, unlike in Brewer, where the concern had been the “misinterpretation of true facts,” in Clery there had been an “added danger that the jury was in a position to misinterpret based only upon partial and misleading facts.” Clery, supra at 62. The Court of Appeals held that the danger of prejudice and confusion was greater because the jury was left to speculate regarding the missing parties’ whereabouts, the amount of a possible settlement, and the potential fault of the missing parties. Id. at 62-63.
The Court of Appeals conclusion that Clery entirely prohibits the parties from referring to a nonparty potentially at fault is simply too broad. Clery merely stands for the proposition that the parties may not inform the jury that a nonparty was dismissed from the lawsuit. Under the provisions of MCL 600.2957 and 600.6304, a defendant may pursue a legitimate defense by arguing that fault rests with a nonparty, regardless of whether the nonparty is, or could have been, named as a party. However, the nonparty fault statutes do not require that the jury be informed about the reason behind a nonparty’s absence from the lawsuit. The fact that the nonparty agreed to settle or was dismissed is irrelevant to the determination and allocation of that person’s fault. Therefore, to the extent that it prohibits informing the jury that a nonparty has been dismissed from the lawsuit, Clery is not in conflict with the statutory mandate because it does not entirely prohibit any reference to a nonparty.
Because the jury in the instant case was not actually informed that Shah had been dismissed, the instant facts do not fit within the Clery holding. Arguably, however, because the unredacted affidavits of merit listed Shah as a defendant, the jury could have reasonably inferred that Shah had been dismissed from the lawsuit. Even if such an inference would equate with actually informing the jury that Shah was dismissed from the lawsuit, reversal here is not required. Plaintiff failed to show that it was more probable than not that the alleged error was outcome determinative. See Lukity, supra at 495-496. There was ample evidence showing that Albaran and Hidalgo, as a general surgeon and neurologist, respectively, did not breach the standard of care applicable to their profession by failing to recognize or diagnose TTfl a rare blood disorder usually diagnosed by a hematologist. Furthermore, had this alleged error resulted in prejudicial jury speculation, the jury verdict may conceivably have been unfavorable to defendants. After informing the jury that Shah had been dismissed, the jury arguably could have believed that Shah’s dismissal was indicative of his lack of fault, and, therefore, Albaran and Hidalgo must have been responsible for Barnett’s death.
While the parties are not allowed to inform the jury about the existence of a settlement with a nonparty or its amount, or that the nonparty was dismissed, under MCL 600.2957 and 600.6304, the parties are permitted to introduce evidence referring to a nonparty. We therefore conclude that plaintiffs affidavits of merit referencing a settling defendant are admissible.
C. DEPOSITION OF SETTLING DEFENDANT
The final issue is whether the admission of Shah’s deposition constitutes error requiring reversal. In pertinent part, MRE 804 provides:
(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant—
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or
(3) has a lack of memory of the subject matter of the declarant’s statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(5) Deposition Testimony. Testimony given as a witness in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Thus, when a witness is available at trial, his or her deposition testimony is inadmissible, as hearsay, for substantive purposes.
The Court of Appeals held that the admission of Shah’s deposition to show that he reviewed the DIC screen results amounted to error requiring reversal because “[t]his critical information could not have gone before the jury by any other means.” Barnett, supra at 168-169. We respectfully disagree and instead conclude that such error, if any, was harmless. MCR 2.613(A); Lukity, supra at 495-496. Two other witnesses, Albaran and Bowman, each properly testified that Shah had reviewed the DIC screen results. Thus, this information was available to the jury through alternative and permissible means.
IV CONCLUSION
We conclude on the basis of MRE 801(d)(2)(B) and (C) and MRE 613 that the affidavits of merit were admissible as substantive evidence because they constitute admissions by a party opponent, and admissible as impeachment evidence because they constitute prior inconsistent statements of plaintiffs expert witnesses. Further, on the basis of MCL 600.2957 and 600.6304, we conclude that plaintiff was permitted to refer to the involvement of nonparties and that the jury therefore could have considered the affidavits of merit that referred to a settling defendant. Finally, we conclude that even if the deposition in this case was improperly used as substantive evidence, the error was harmless because the information was alternatively introduced through other permissible means. Accordingly, we reverse the Court of Appeals judgment.
Taylor, C.J., and Weaver, Corrigan, and Young, JJ., concurred with MARKMAN, J.
CAVANAGH, J. I concur in the result only.
We directed the parties to include among the issues to he briefed “whether Brewer v Payless Stations, Inc, 412 Mich 673 (1982), and Clery v Sherwood, 151 Mich App 55 (1986), have continuing vitality in light of MCL 600.6304 and MCL 600.2957, which require the finder of fact to determine and apportion the liability of nonparties.”
See, e.g., Kowalski v Fiutowski, 247 Mich App 156, 164; 635 NW2d 502 (2001) (The Court of Appeals held that “when a defendant fails to file an affidavit of meritorious defense, that defendant has failed to plead.”).
See Hunt v CHAD Enterprises, Inc, 183 Mich App 59, 63; 454 NW2d 188 (1990) (“statements in pleadings may be treated as admissions”).
See, for example, Pfizer Inc v Teva Pharmaceuticals USA, Inc, 2006 US Dist LEXIS 77970 (D NJ, 2006) (expert affidavits submitted by the plaintiff in support of its European patent application represented adoptive admissions); Kreppel v Guttman Breast Diagnostic Institute, Inc, 1999 US Dist LEXIS 19602 (SD NY, 1999) (report prepared by medical expert witness who was also deposed and listed as a trial witness, which was produced by defendant to the other parties, constituted an admission); Grundberg v Upjohn Co, 137 FRD 365 (D Utah, 1991) (protocol report forms recording the results of research sponsored by the defendant, which were submitted to the Food and Drug Administration in connection with the defendant’s application for approval to market a drug, were admissible as nonhearsay adoptive admissions).
We note that MRE 801(d)(2) contains no express or implied requirement of personal knowledge or understanding on the part of the plaintiff-declarant of the facts or medical expertise underlying his or her statement. See, e.g., Mahlandt v Wild Canid Survival & Research Ctr, Inc, 588 F2d 626, 630-631 (CA 8, 1978), wherein the court held that FRE 801(d)(2)(D) does not contain an express or implied requirement that the declarant have personal knowledge of the facts underlying his or her statement.
See, for example, Reid Bros Logging Co v Ketchikan Pulp Co, 699 F2d 1292, 1306-1307 (CA 9, 1983) (report prepared by an employee of a shareholder of the defendant’s parent company at the request of the chairman of the board of the defendant’s company on the basis of free access to all the company’s books and records and that was circulated to the officers and managers was an authorized statement under FRE 801[d][2][C]); Collins v Wayne Corp, 621 F2d 777, 781-782 (CA 5, 1980) (deposition of expert hired by the defendant to investigate an accident and report his conclusions was admissible as an admission under FRE 801 [d][2][C], which the defendant had the opportunity to explain, hut the deposition was not a conclusive, judicial admission); Glendale Fed Bank, FSB v United States, 39 Fed Cl 422, 423-425 (1997) (deposition of expert who was not withdrawn before trial remains “authorized” by the party and amounts to a party-admission). But see contra Kirk v Raymark Industries, Inc, 61 F3d 147, 163-164 (CA 3, 1995). The court held that the testimony of an expert witness who is called to testify on behalf of a party in unrelated litigation is not admissible as an admission under FRE 801(d)(2)(C), unless the expert witness is an agent of the party and is authorized to speak on behalf of that party. We are not persuaded by the Kirk rationale. The actual language of the rule does not require that the person making the statement be an “agent” of the party; rather, it only requires that the party authorize the person to make a statement concerning the subject. “FRE 801(d)(2)(C) applies to a person who is not an agent but is ‘authorized’ to speak.” Glendale Fed Bank, FSB, supra at 424.
We agree with the Court of Appeals that an affidavit of merit is not admissible under MRE 801(d)(2)(D) as “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment” because there is no agency relationship between a plaintiff and an expert. The right to control the conduct of the agent with respect to the matters entrusted to him or her is fundamental to the existence of an agency relationship. St Clair Intermediate School Dist v Intermediate Ed Ass’n/MEA, 458 Mich 540, 557-558; 581 NW2d 707 (1998). Although an affidavit of merit is provided upon the plaintiffs request, the affidavit is prepared by an independent expert and the plaintiff has no right to control the content of the expert’s statements.
See Collins, supra at 782.
This Court has held that
[s]ubsection 6304(1)(b) is unambiguous and calls for the trier of fact to assess by percentage “the total fault of all persons that contributed to the death or injury, including each plaintiff” (emphasis added), as long as that fault constituted a proximate cause of the plaintiffs injury and subsequent damage. [Estate of Shinholster, supra at 551.]
MCL 600.2957 and MCL 600.6304
provide that the fact-finder shall allocate liability among non-parties even in medical malpractice cases where the plaintiff is not at fault before joint and several liability is imposed on each defendant. Further, once joint and several liability is determined to apply, joint and several liability prohibits the limitation of damages to one’s percentage of fault. [Salter, supra at 565.]
The Court of Appeals noted:
At least in Brewer the facts imparted to the jury were a complete and accurate recital of the settlement in that case. In the present case, disclosure was but that of a half-truth; the jury was told that the case against the bar and the road commission was dismissed, but they were not told that this was pursuant to settlement of $128,000 and $5,000 respectively. [Clery, supra at 62.] | [
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YOUNG, J.
This case concerns the jurisdiction of circuit courts to modify judgments of foreclosure when the foreclosing governmental unit deprives the property owner of due process. Generally, the provision of the General Property Tax Act (GPTA), at issue in this case, as well as recent amendments of the GPTA, reflect a legislative effort to provide finality to foreclosure judgments and to quickly return property to the tax rolls. However, this legislative regime is problematic when the property owner is not provided with constitutionally adequate notice of the foreclosure. This is because MCL 211.78k(6) serves to insulate violations of the Due Process Clause of the United States Constitution and of the Michigan Constitution from judicial review and redress, thereby completely denying the property owner procedural due process. As applied to the limited class of property owners who have been denied due process in this statutory foreclosure scheme, this provision of the GPTA is unconstitutional. Therefore, for the reasons stated herein, we affirm the Wayne Circuit Court’s order vacating the judgment of foreclosure and restoring the church’s title to the property in question.
FACTS AND PROCEDURAL HISTORY
The property owner in this case, Perfecting Church, purchased two parcels for use as parking lots during its church services. Both parcels were transferred by a single deed that the church properly recorded. Nevertheless, after the church purchased and recorded a single deed for both the parcels, the Wayne County Treasurer listed one parcel on the Wayne County foreclosure listing. The church paid the outstanding taxes on that parcel and the treasurer assured the church that there were no further outstanding taxes on either parcel. Despite those assurances, the treasurer initiated foreclosure proceedings against the other parcel. However, the church never received notice of the pending foreclosure because the treasurer did not comply with the notice provisions of the GPTA. Specifically, the treasurer sent the statutorily required notice to the previous owner and did not post a notice on either of the parcels. Thus, the church had no notice of the foreclosure proceedings. The Wayne Circuit Court entered a judgment of foreclosure. After the redemption period passed, Wayne County sold the property to the intervening parties, Matthew Tatarian and Michael Kelly.
Subsequent to the sale, the church learned of the foreclosure and sale, and it filed a motion for relief from the foreclosure judgment in the Wayne Circuit Court. That court granted the church’s motion and the Court of Appeals denied the intervening parties’ delayed application for leave to appeal. 4This Court granted their application for leave, directing the parties to address two issues:
(1) whether the trial court retained jurisdiction to grant relief from the judgment of foreclosure pursuant to MCR 2.612(C), notwithstanding the provisions of MCL 211.87[l](1) and (2); and (2) whether MCL 211.78[Z] permits a person to be deprived of property without being afforded due process.
STANDARD OF REVIEW
This Court reviews questions of law, such as issues of constitutional and statutory construction, de novo.
ANALYSIS
Under the GPTA, a “foreclosing governmental unit shall file a single petition with the clerk of the circuit court of that county listing all property forfeited and not redeemed to the county treasurer under [MCL 211.78g] to be foreclosed under [MCL 211.78k].... ” Before the hearing on the petition, the foreclosing governmental unit must provide proof of service of the notices required under the statute, as well as proof of the personal visit to the property and publication. The circuit court then must make a series of factual determinations to complete the foreclosure process. 9At the time the county foreclosed the church’s property, the GPTA provided:
Except as otherwise provided in subsection (5)(c) and (e), fee simple title to property set forth in a petition for foreclosure filed under section 78h on which forfeited delinquent taxes, interest, penalties, and fees are not paid within 21 days after the entry of judgment shall vest absolutely in the foreclosing governmental unit, and the foreclosing governmental unit shall have absolute title to the property. The foreclosing governmental unit’s title is not subject to any recorded or unrecorded lien and shall not be stayed or held invalid except as provided in subsection (7)
The statute also provides for an appeal to the Court of Appeals within 21 days of the judgment of foreclosure. 11 Finally, the GPTA provides property owners who claim they did not receive any notice an action for monetary damages in the Court of Claims.
The intervening parties challenge the propriety of the grant of relief from judgment obtained by the church. They argue that MCL 211.78k(6) precludes the circuit court from staying or holding the governmental unit’s title invalid. Furthermore, because the church did not avail itself of the redemption or appeal provision contained in subsections 6 and 7, it is limited to an action for monetary damages under MCL 211.78l.
The intervening parties accurately construe these provisions of the GPTA. If a property owner does not redeem the property or appeal the judgment of foreclosure within 21 days, then MCL 211.78k(6) deprives the circuit court of jurisdiction to alter the judgment of foreclosure. MCL 211.78k(6) vests absolute title in the foreclosing governmental unit, and if the taxpayer does not redeem the property or avail itself of the appeal process in subsection 7, then title “shall not be stayed or held invalid....” This language reflects a clear effort to limit the jurisdiction of courts so that judgments of foreclosure may not be modified other than through the limited procedures provided in the GPTA. The only possible remedy for such a property owner would be an action for monetary damages based on a claim that the property owner did not receive any notice. In the majority of cases, this regime provides an appropriate procedure for foreclosing property because the statute requires notices that are consistent with minimum due process standards.
However, the church argues that because the county denied it due process when taking its property, the church can avoid the limitations of the statute. The intervening parties respond that regardless of the property owner’s claim, the statute only provides for one remedy once the redemption and appeals period has passed — a claim for monetary damages under MCL 211.78l.
As stated, we believe that the intervening parties’ interpretation of the GPTA is correct. The act does not provide an exception for property owners who are denied due process. Thus, the intervening parties correctly assert that the GPTA does not provide relief for the church or other property owners who are denied due process.
The question then becomes whether such a regime is constitutional when it operates to deprive a property owner of its property without due process. This Court must presume a statute is constitutional and construe it as such, unless the only proper construction renders the statute unconstitutional. The United States Supreme Court recently has held that “due process requires the government to provide ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Furthermore, “ ‘when notice is a person’s due. . . [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.’ ” However, “[d]ue process does not require that a property owner receive actual notice before the government may take his property.”
As noted above, the statute permits a foreclosing governmental unit to ignore completely the mandatory notice provisions of the GPTA, seize absolute title to a taxpayer’s property, and sell the property, leaving the circuit court impotent to provide a remedy for the blatant deprivation of due process. That interpretation, allowing for the deprivation of due process without any redress would be patently unconstitutional. Unfortunately, as noted above, the plain language of the statute simply does not permit a construction that renders the statute constitutional because the statute’s jurisdictional limitation encompasses all foreclosures, including those where there has been a failure to satisfy minimum due process requirements, as well as those situations in which constitutional notice is provided, but the property owner does not receive actual notice. In cases where the foreclosing governmental unit complies with the GPTA notice provisions, MCL 211.78k is not problematic. Indeed, MCL 211.78l provides in such cases a damages remedy that is not constitutionally required. However, in cases where the foreclosing entity fails to provide constitutionally adequate notice, MCL 211.78k permits a property owner to be deprived of the property without due process of law. Because the Legislature cannot create a statutory regime that allows for constitutional violations with no recourse, that portion of the statute purporting to limit the circuit court’s jurisdiction to modify judgments of foreclosure is unconstitutional and unenforceable as applied to property owners who are denied due process.
CONCLUSION
Because there is no construction of the GPTA that renders the statute constitutional in cases where the taxing authority has denied the taxpayer due process, the statute is unconstitutional as applied to those individuals. In the present case, the county completely failed to comply with the notice provisions in the GPTA. As such, the county deprived the church of its property without providing due process. Therefore, for the reasons stated, we affirm the order of the Wayne Circuit Court that restored the church’s title to the property in question.
Taylor, C.J., and CORRIGAN and Markman, JJ., concurred with Young, J.
MCL 211.1 et seq.
MCL 211.78i requires the foreclosing entity to notify the property owner by certified mail. Additionally, MCL 211.78Í requires the foreclosing governmental unit to visit the property, determine whether it is occupied, and either inform the occupant of the foreclosure or post notice in a conspicuous place.
Unpublished order of the Court of Appeals, entered July 11, 2005 (Docket No. 261074).
4 474 Mich 1059 (2006).
Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004).
MCL 211.78h(1).
MCL 211.78k(1).
MCL 211.78k(5).
9 MCL 211.78k(5)(c) and (e) provided exceptions for future installments of special assessments and liens recorded by the state or the foreclosing governmental unit under MCL 324.101 et seq., and certain easements and deed restrictions.
10 MCL 211.78k(6). This subsection has since been amended by 2006 PA 611 and now provides:
Except as otherwise provided in subsection (5)(c) and (e), fee simple title to property set forth in a petition for foreclosure filed under section 78h on which forfeited delinquent taxes, interest, penalties, and fees are not paid on or before the March 31 immediately succeeding the entry of a judgment foreclosing the property under this section, or in a contested case within 21 days of the entry of a judgment foreclosing the property under this section, shall vest absolutely in the foreclosing governmental unit, and the foreclosing governmental unit shall have absolute title to the property, including all interests in oil or gas in that property except the interests of a lessee or an assignee of an interest of a lessee under an oil or gas lease in effect as to that property or any part of that property if the lease was recorded in the office of the register of deeds in the county in which the property is located before the date of filing the petition for foreclosure under section 78h, and interests preserved as provided in section 1(3) of 1963 PA 42, MCL 554.291. The foreclosing governmental unit’s title is not subject to any recorded or unrecorded lien and shall not be stayed or held invalid except as provided in subsection (7) or (9).
MCL 211.78k(7).
MCL 211.781(1) states:
If a judgment for foreclosure is entered under [MCL 211.78k] and all existing recorded and unrecorded interests in a parcel of property are extinguished as provided in [MCL 211.78k], the owner of any extinguished recorded or unrecorded interest in that property who claims that he or she did not receive any notice required under this act shall not bring an action for possession of the property against any subsequent owner, but may only bring an action to recover monetary damages as provided in this section.
The recent amendments of the GPTA add further support to this conclusion. See MCL 211.78k(5)(g).
Caterpillar, Inc v Dep’t of Treasury, 440 Mich 400, 413; 488 NW2d 182 (1992), quoting People v McQuillan, 392 Mich 511, 536; 221 NW2d 569 (1974).
Jones v Flowers, 547 US 220, 226; 126 S Ct 1708; 164 L Ed 2d 415 (2006), quoting Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950).
Jones, supra, 547 US at 229, quoting Mullane, supra at 315.
Jones, supra, 547 US at 226 (emphasis added).
The United States Supreme Court “consistently has held that some form of hearing is required before an individual is finally deprived of a property interest.” Mathews v Eldridge, 424 US 319, 333; 96 S Ct 893; 47 L Ed 2d 18 (1976) (emphasis added), citing Wolff v McDonnell, 418 US 539, 557-558; 94 S Ct 2963; 41 L Ed 2d 935 (1974).s
Even when the foreclosing governmental unit only partially complies with the GPTA notice provisions, MCL 211.78k is sound as long as there is constitutionally adequate notice. Because the notice provisions provide more notice than is required to satisfy due process, the constitution does not require strict compliance with all the statutory notice requirements. | [
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Hoekstra, J.
Plaintiff appeals as of right from an order denying plaintiffs motion for summary disposition pursuant to MCR 2.116(C)(10) and granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). We reverse.
Plaintiff and defendant Brent Williams were previously married and are the parents of Jason Alan Williams. Defendant Brent Williams is now married to defendant Ginger Williams. When Jason was aged five and living with defendants in their home, defendant Brent Williams made at least two audio tape recordings of telephone conversations between Jason and plaintiff. Neither plaintiff nor Jason expressly consented to or knew of the taping. Upon learning of the tape recordings, plaintiff filed this three-count action, claiming violations of title m of the Omnibus Crime Control and Safe Street Act of 1968, 18 USC 2510 et seq. (the federal wiretapping act), the Michigan eavesdropping statute, MCL 750.539 et seq.; MSA 28.807 et seq.,and the common-law tort of invasion of privacy.
Both parties filed motions in the lower court for summary disposition. Defendant Brent Williams, who had sole legal and physical custody of Jason at the time of the tape recording, argued that he had the authority to give consent on Jason’s behalf to the interception of the telephone conversations. Plaintiff posited that defendants’ argument improperly expanded the scope of the consent exceptions in the federal and state statutes and that a proper interpretation would require summary disposition in her favor because defendant Brent Williams was not a participant in the conversation. The lower court granted defendants’ motion pursuant to MCR 2.116(C)(8) and (10), holding that there was no genuine issue of matelial fact and that plaintiff failed to state a claim because defendant Brent Williams, as the custodial parent of a minor child, could consent on Jason’s behalf to the interception of Jason’s telephone conversations where the decision was in Jason’s best interests. This Court reviews de novo the lower court’s grant of summary disposition pursuant to MCR 2.116(C)(8) and (10). Countrywalk Condominiums, Inc v Orchard Lake Village, 221 Mich App 19, 21; 561 NW2d 405 (1997). We review the record to determine whether defendants were entitled to judgment as a matter of law. Id. Likewise, we review de novo the lower court’s statutory interpretation. Smeets v Genesee Co Clerk, 193 Mich App 628, 633; 484 NW2d 770 (1992).
The sole issue presented by plaintiff on appeal is an issue of first impression for this Court: whether a custodial parent of a minor child may consent on behalf of the child to the interception of conversations between the child and another party and thereby avoid liability under the Michigan eavesdropping statute and the federal wiretapping act. Although there may be distinguishing factors not at issue in this case, these two statutes generally prohibit a person from similar conduct, the intentional interception or use of any wire, oral, or electronic communication under threat of criminal penalty or civil damages. Defendants argue that the recording activity in this case does not come within the purview of either statute because of an implicit reference to consent in the state statute and an explicit reference in the federal act. Therefore, we must decide whether these references to consent may be construed so broadly as to include the type of vicarious consent exception advocated by defendants. We conclude that they cannot.
First, regarding the Michigan eavesdropping statute, defendants argue that the tape recordings in this case do not come within the intended purview of the state statute because defendant Brent Williams stood in the place of his minor child by granting consent on the child’s behalf. For a vicarious consent exception in the state statute, defendants rely on this Court’s holding in Sullivan v Gray, 117 Mich App 476, 481; 324 NW2d 58 (1982), that the Michigan Legislature unambiguously excluded participant recording from the definition of eavesdropping by defining the subject conversation as “the private discourse of others.” MCL 750.539a(2); MSA 28.807(1)(2). Thus, defendants’ argument is apparently that the subject conversations should not be considered “the private discourse of others” because defendant Brent Williams was a vicarious participant in the conversation by virtue of his role as custodial parent.
The goal of statutory construction is to ascertain and facilitate legislative intent. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994). The first criterion in determining intent is the specific language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). In the provisions of the Michigan eavesdropping statute, we find no indication that the Michigan Legislature intended to create an exception for a custodial parent of a minor child to consent on the child’s behalf to interceptions of conversations between the child and a third party. If the Legislature had intended the result argued by defendants, then it could have included such an exception in MCL 750.539g; MSA 28.807(7), the provision in the Michigan eavesdropping statute in which the Legislature delineated exceptions to the prohibition against eavesdropping. Because the Legislature did not include such an exception, we must presume it intended only the meaning that it plainly expressed. Institute in Basic Life Principles, Inc v Watersmeet Twp (After Remand), 217 Mich App 7, 12; 551 NW2d 199 (1996).
Additionally, we do not believe that this Court’s interpretation of the phrase “private discourse of others” in Sullivan, supra at 481, supports an enlargement of those statutory exceptions to include vicarious consent by a custodial parent. Indeed, this Court has previously interpreted the relevant provision of the Michigan eavesdropping statute to mean that even if an eavesdropper acts as an agent of a participant in the conversation, that third party nonetheless used a device to eavesdrop “upon the conversation without the consent of all parties thereto” contrary to MCL 750.539c; MSA 28.807(3). Dickerson v Raphael, 222 Mich App 185, 200; 564 NW2d 85 (1997). In any event, this Court has no authority to judicially create an exception for tape recordings made by a custodial parent with a child’s vicarious consent because we may not speculate with regard to the probable intent of the Legislature beyond the words expressed in the statute. In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995).
Second, regarding the federal wiretapping act, defendants similarly argue in this context that no lia bility has attached because defendant Brent Williams could consent on Jason’s behalf to the tape recording in this case. Here, defendants rely on an explicit provision within the federal act itself, which states the following:
It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State. [18 USC 2511(2)(d).]
According to defendants, this Court should apply the consent exception to the facts in this case and hold that defendant Brent Williams was a vicarious “party to the communication” between Jason and plaintiff by virtue of his role as custodial parent.
However, the federal wiretapping act is silent with regard to the types of consent that Congress contemplated. The exception to the federal statute simply provides for consent by “one of the parties to the communication.” This language gives us no indication that Congress intended to create an exception for a custodial parent of a minor child to consent on the child’s behalf and tape record telephone conversations between the child and a third party. Were it the intent of Congress to create a safe harbor from liability for custodial parents recording the conversations of their children, it, too, could have easily done so. Instead, the federal wiretapping act states that any exceptions to its prohibitions are “specifically provided in this chapter.” 18 USC 2511(1). This Court will not speculate with regard to the probable intent of Congress beyond the words expressed in the statute. Schnell, supra at 310.
Indeed, in Young v Young, 211 Mich App 446, 451; 536 NW2d 254 (1995), this Court found that the legislative history of the federal wiretapping act evinces a legislative intent to prohibit the widespread use of electronic eavesdropping in domestic relations cases. There, this Court refused to find an interspousal immunity exception because none could be found in the plain and unambiguous language of the federal wiretapping act. Id. at 452. Here, too, this Court has no authority to create judicially the vicarious consent exception from the language highlighted by defendants.
Because the activity in this case is encompassed by both the Michigan eavesdropping statute and the federal wiretapping act as written, we hold that the lower court erred in finding that defendants were entitled to judgment as a matter of law on this basis. Having stated our holding in this case, we nonetheless recognize that several courts in other jurisdictions have analyzed this precise issue of vicarious consent within the context of a custody dispute. In general, these courts have been willing to extend the consent exception in the federal wiretapping act to include vicarious consent by a parent on behalf of a minor child to intercepting and using communications with a third party where such action is in the child’s best interests. We, too, can admittedly perceive situations where depriving a parent of the ability to vicariously consent for a child may deprive the child of the parent’s ability to protect the child. For example, Michigan law gives a parent the right to consent to legal action on behalf of a minor child in other situations. See MCL 551.103(1); MSA 25.33(1) (marriage); People v Goforth, 222 Mich App 306; 564 NW2d 526 (1997) (parent’s consent to search of child’s bedroom).
However, we are also cognizant that granting a parent the ability to consent on behalf of a child in this context is likely to have widespread implications and may encompass surreptitious actions by parents with less than laudable motives. Moreover, plaintiff correctly points out that Michigan law provides a parent in a custody dispute with relief by vesting the circuit court with the power to take any other action it considers necessary for the best interests of the child. See, e.g., MCL 722.27(1)(f); MSA 25.312(7)(1)(f). Therefore, notwithstanding other courts’ willingness to ascribe different meanings to the consent exception, we decline to follow their lead. We instead commend to the legislative branch the delicate question of the extent of privacy that family members may expect within their home vis-a-vis each other. Unlike the judiciary, the legislative branch of government is able to hold hearings and sort through the competing interests and policies at stake. Const 1963, art 3, § 2. See, e.g., Stabley v Huron-Clinton Metropolitan Park Authority, 228 Mich App 363; 579 NW2d 374 (1998).
Reversed.
The applicable provision of Michigan’s eavesdropping statute provides the following:
Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both. [MCL 750.539c; MSA 28.807(3).]
In part, 18 USC 2511 states the following:
(1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication;
* * *
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
* * *
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
Our holding in this case is limited to the sole question presented by plaintiff for our review, which is whether the lower court erred in interpreting the federal and state statutes to include consent that is given by a parent for a minor child. Therefore, we express no opinion with regard to whether plaintiff’s tort action is meritorious, whether defendant Ginger Williams’ involvement in this case is sufficient to hold her liable under Michigan’s eavesdropping statute or the federal wiretapping act, or whether plaintiff is alternatively entitled to summary disposition. The trial court did not reach the merits of these issues, and it is well settled that appellate review is limited to issues that the lower court actually decided. See, e.g., Schubiner v New England Ins Co, 207 Mich App 330, 331; 523 NW2d 635 (1994).
See Pollock v Pollock, 975 F Supp 974, 979 (WD Ky, 1997) (granting summary judgment to the plaintiff’s former wife pursuant to the consent exception in the federal wiretapping act because she acted to protect the welfare of her children in taping the conversations between the plaintiff and the parties’ daughter); Thompson v Dulaney, 838 F Supp 1535, 1544 (D Utah, 1993) (holding that pursuant to the consent exception in the federal wiretapping act, the guardian could authorize the recordation of her minor children’s telephone conversations as long as she had “a good faith basis that is objectively reasonable for believing that it is necessary to consent on behalf of her minor children”); Silas v Silas, 680 So 2d 368, 371 (Ala Civ App, 1996) (following Thompson, supra, to hold that a parent may give vicarious consent on behalf of a minor child to the taping of telephone conversations where that parent has “a good faith basis that is objectively reasonable for believing that the minor child is being abused, threatened, or intimidated by the other parent”); Wright v Stanley, 700 So 2d 274, 279-280 (Miss, 1997) (holding that neither the state law prohibiting wiretapping nor the federal wiretapping act prohibited the custodial parent from recording the conversations of her children with the noncustodial parent in the custodial home). See also West Virginia Dep’t of Health & Human Resources ex rel Wright v David L, 192 W Va 663, 671; 453 SE2d 646 (1994) (distinguishing Thompson, supra, on its facts to hold that the father had no right on behalf of his children to give consent under West Virginia’s wiretap act to have the children’s conversations with the other parent recorded while the children resided in the other parent’s house and in the other parent’s care). | [
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Saad, J.
I
NATURE OF THE CASE
In this insurance coverage matter, the parties dispute whether the casualty insurance policy covering plaintiffs motel was effectively canceled before a fire that seriously damaged the building. The trial court found that the cancellation was not effective until after the fire occurred, and rendered summary disposition for plaintiff on that basis. Because we hold that the trial court misread the relevant statute, we reverse.
n
FACTS AND PROCEEDINGS BELOW
On February 4, 1994, plaintiff Kandarp Doshi went to the Jackson Park Agency and completed an application for property insurance on his motel property. Doshi also executed a premium finance agreement with National Premium Budget Plan (NPBP), so that he could finance the premiums owed to defendant Michigan Basic Property Insurance Association. The NPBP premium finance agreement contained the following power of attorney:
As long as I owe money on the loan, I give N.P.B.P. full and irrevocable power of attorney to cancel the insurance policies financed by this loan if I fail to pay any monthly payment when due. This power of attorney may not be revoked by me. [Emphasis added.]
The total annual premium payable to defendant was $2,928. Plaintiff paid defendant $732 in cash and financed the $2,196 balance through NPBP. Plaintiffs monthly payments to NPBP of $257.39 were due beginning March 5, 1994. However, plaintiff failed to make the first monthly premium payment to NPBP on March 5, 1994, and on March 15, 1994, npbp mailed plaintiff a ten-day notice of intent to cancel. On March 30, 1994, npbp mailed to both plaintiff and defendant npbp’s standard notice of cancellation, which stated that the policy would be canceled effective the next day, March 31, 1994.
Five days later, on April 5, 1994, the motel property at issue was damaged by fire. Defendant insurer mailed plaintiff a cancellation notice, dated April 13, 1994, which stated that the effective date of cancellation was March 31, 1994. After defendant refused to pay plaintiffs claim, plaintiff filed this action alleging breach of contract, consequential damages, and unfair trade practices under the Michigan Consumer Protection Act, MCL 445.901 et seq.) MSA 19.418(1) et seq.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), contending that (1) plaintiff failed to state a cause of action because at the time of loss, the insurance policy had been canceled, and (2) there was no dispute of fact because npbp had followed the statutory requirements necessary to cancel the policy, effective March 31, 1994.
Plaintiff also moved for summary disposition, pursuant to MCR 2.116(C)(9) and (10), contending that Michigan law requires the insurance company, not the premium finance company, to take additional action to cancel a policy, and that because the insurance company did not issue a cancellation notice until April 13, 1994 (after the fire), coverage was still in effect on April 5, 1994, when the fire occurred.
The trial court granted summary disposition for plaintiff, concluding that the fact that plaintiff signed a contract giving the finance company power of attorney did not relieve the insurance company of what the circuit court saw as the insurer’s obligation to cancel the policy in the manner set forth in the relevant statute. Defendant now appeals, raising two primary issues. Because we find defendant’s first issue dispositive, we reverse on that basis and do not reach the second issue.
m
ANALYSIS
Under the Michigan statutory scheme, there are three ways that a policy of casualty insurance may be canceled: by the insured, by the insurer, and by a premium finance company. Although this dispute centers on whether npbp met the requirements for cancellation by a premium finance company, we review each of the three methods of cancellation.
Subsections a and b of subsection 1 of § 3020 of the Insurance Code, MCL 500.3020(1)(a) and (b); MSA 24.13020(1)(a) and (b), which govern cancellation of casualty insurance by the insured and the insurer, provide:
(a) That the policy may be canceled at any time at the request of the insured, in which case the insurer shall refund the excess of paid premium or assessment above the pro rata rates for the expired time ....
(b) That the policy may be canceled at any time by the insurer by mailing to the insured at the insured’s address last known to the insurer or an authorized agent of the insurer, with postage fully prepaid, a not less than 10 days’ written notice of cancellation with or without tender of the excess of paid premium or assessment above the pro rata premium for the expired time.
Cancellation of an insurance contract by a premium finance company may be effectuated in the manner set forth in MCL 500.1511; MSA 24.11511, which provides in pertinent part:
(1) When a premium finance agreement empowers the premium finance company to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be canceled by the premium finance company unless such cancellation is effectuated in accordance with this section.
(2) Not less than 10 days’ written notice shall be mailed to the insured of the intent of the premium finance company to cancel the insurance contract unless the default is cured within the 10-day period.
(3) After expiration of the 10-day period, the premium finance company may request cancellation of the insurance contract by mailing to the insurer a notice of cancellation, and the insurance contract shall be cancelled [sic] by the insurer without requiring the return of the insurance contract. The premium finance company shall also mail a notice of cancellation to the insured at his last known address at the same time the premium finance company requests cancellation of the insurance contract.
We review de novo summary disposition rulings. Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). Statutory interpretation is a question of law and is reviewed de novo on appeal. Nat’l Center for Mfg Sciences, Inc v Ann Arbor, 221 Mich App 541, 545; 563 NW2d 65 (1997). The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Id. To determine the intent of the Legislature it is necessary to examine the specific language of a statute; if the language is clear and unambiguous, then judicial construction is neither required nor permitted. Id. at 545-546.
Here, we are called upon to determine whether the actions of npbp (a premium finance company) were sufficient under the statutory scheme to effect cancellation of the policy as of March 31, 1994. Under § 1511, each of several steps is necessary to effectuate cancellation. First, under subsection 1511(1), a premium finance company may request cancellation of a contract only if it has been given that power from the insured. The parties do not dispute that this power was given here, in the form of the power of attorney signed by Doshi. Under subsection 1511(2), the premium finance company must send a ten-day written notice to the insured, stating that the contract will be canceled unless the default is cured. Although plaintiff denied receiving this notice, there is no evidence that npbp did not send the notice as it claimed on March 15, 1994. Under subsection 1511(3), after the ten-day period has expired, the finance company c<m request cancellation of the contract by mailing to both the insurer and the insured a request for cancellation, and these actions by the finance company dictate that “the insurance contract shall be cancelled by the insurer without requiring the return of the insurance contract.” Here, it is undisputed that, on March 30, 1994, npbp sent its standard notice of cancellation, which stated:
You ARE HEREBY NOTIFIED THAT THE POLICY DESCRIBED BELOW IS CANCELLED FOR NON-PAYMENT OF AN INSTALLMENT IN ACCORDANCE WITH THE CONDITIONS AND TERMS OF THE PREMIUM FINANCE AGREEMENT WHICH INCORPORATES A POWER OF ATTORNEY. THIS CANCELLATION IS EFFECTIVE ONE DAY AFTER THE ABOVE-CAPTIONED DATE [3-30-94], AT THE HOUR INDICATED IN THE POLICY AS THE EFFECTIVE TIME.
Section 1511(3) of chapter 15 of act no. 218 of the public ACTS OF 1956, AS amended, recognizes this as a valid notice of cancellation and provides that the gross unearned premium BE RETURNED TO THE PREMIUM FINANCE COMPANY.
If the policy or any statute requires the insurer to give NOTICE TO A MORTGAGEE, GOVERNMENTAL AGENCY, OR OTHER THIRD PARTY BEFORE THE POLICY CAN BE CANCELLED, THE INSURER SHALL GIVE THE PRESCRIBED NOTICE IN [SIC] BEHALF OF ITSELF OR THE INSURED TO ANY GOVERNMENTAL AGENCY, MORTGAGEE, OR OTHER THIRD PARTY ON OR BEFORE THE SECOND BUSINESS DAY AFTER THE DAY IT RECEIVES THE NOTICE OF CANCELLATION FROM THE PREMIUM FINANCE COMPANY AND SHALL DETERMINE THE EFFECTIVE DATE OF CANCELLATION TAKING INTO CONSIDERATION THE NUMBER OF DAYS NOTICE REQUIRED TO COMPLETE THE CANCELLATION.
Importantly, there is nothing in § 1511 that makes cancellation contingent upon the insurer’s issuance of a cancellation. Therefore, under the clear language of the statute, npbp’s actions alone were sufficient to effectuate cancellation of the policy as of March 31, 1994.
That this result accurately reflects the intent of our Legislature is supported by the discussion in Farmers Ins Group v Progressive Casualty Ins Co, 84 Mich App 474, 482-483; 269 NW2d 647 (1978). In Farmers, the premium finance company was located at the same address as the insurer, and the premium finance agreement was “part and parcel” of the insurance contract. Id. at 477. We stated there at 482-483:
Chapter 15 [including § 1511] of the insurance code was intended to exempt from the notice requirement of § 3020 of the insurance code a premium finance company which was truly independent of any single insurer or group of affiliated insurers. If a premium finance company is not independent, but rather is effectively an extension or a branch of the insurer or affiliated insurers, the exemption would not and should not apply. If, as appears here, a premium finance company is simply a division within the insurance company itself to handle periodic payments of insurance premiums, then the cancellation effected by the finance company is actually effected by the insurer itself, and the provisions of § 3020 [cancellation by insurer] would then apply. In that situation, even if the insured had contractually assigned to the premium finance company his right to cancel, the assignment would be in reality an assignment to the insurer, and could not be exercised peremptorily by the insurer because of the contrary requirements of § 3020.
From this discussion, it is evident that the Legislature intended § 1511 to delineate a clear separation between the method of cancellation by premium finance companies and the method of cancellation in § 3020 for insurers. (Section 1511 “was intended to exempt from the notice requirement of § 3020 ... a premium finance company . . . .” Farmers Ins, at 482.) We find absolutely no support for the trial court’s conclusion that cancellation initiated by a premium finance company can only be effective after the requirements of both § 1511 (premium finance company) and § 3020 (insurer) are met. To the contrary, where, as here, the requisites of § 1511 have been met by an independent premium finance company, cancellation is effective at the date and time stated on the finance company’s notice of cancellation. Here, the policy was canceled on March 31, 1994 — before the fire that occurred on April 5, 1994. Clearly, no coverage was in effect on the date of loss. Accordingly, the trial court’s grant of summary disposition to plaintiff was erroneous. The order granting summary disposition must be reversed and the matter must be remanded with instructions to enter judgment in favor of defendant.
Reversed and remanded with instructions. We do not retain jurisdiction.
Smolensk!, J., concurred.
Plaintiff denies ever receiving this ten-day notice.
On April 20, 1994, npbp mailed two checks to the Jackson Park Agency — the checks represented the return of that portion of the initial payment that had not yet been applied to the coverage.
This statute, by its terms, is limited to casualty insurance and therefore does not apply to life insurance or disability insurance, and so forth. | [
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Per Curiam.
Defendant was convicted of involuntary manslaughter, MCL 750.321; MSA 28.553, following a jury trial. He was sentenced to 365 days’ imprisonment and ordered to pay $11,793 in restitution. He appeals as of right. We vacate defendant’s conviction and remand for further proceedings consistent with this opinion.
The incident that gave rise to the charges in this case occurred on November 15, 1995, the opening day of firearm deer hunting season in Michigan. Early that morning, defendant, his family, and a family friend arrived at the property where they were going to hunt. Defendant and his daughter thereafter separated from the rest of the group and went to find a hunting “spot” together. At approximately 6:45 A.M., before the official 6:59 A.M. start of the hunting season, defendant, who was already positioned for hunting, heard something. He looked up, thought he saw a deer with antlers, and fired twice. After the second shot, defendant heard the victim yell and fall to the ground. It was dark at the time the shots were fired. The victim died as a result of the gunshot wounds inflicted by defendant.
i
Defendant argues that the trial court improperly instructed the jury with regard to the involuntary manslaughter charge, specifically that the trial court offered an erroneous gross negligence instruction and improperly instructed the jury regarding the misdeme<mor-manslaughter rule. We disagree with defendant’s arguments.
Jury instructions are reviewed in their entirety to determine if there was error. People v Daniel, 207 Mich App 47, 53; 523 NW2d 830 (1994). Even if the instructions are imperfect, no error is created if the instructions fairly present the issues to be tried and sufficiently protect the defendant’s rights. Id. The instructions must include all the elements of the crime charged and must not exclude any material issues, defenses, or theories if there is evidence to support them. Id.
At the outset, we note that a considerable portion of defendant’s argument is premised on the erroneous legal conclusion that involuntary manslaughter is a specific intent crime. It is not. Involuntary manslaughter is a general intent crime. People v Wilkins, 184 Mich App 443, 446; 459 NW2d 57 (1990); People v Kelley, 21 Mich App 612, 619; 176 NW2d 435 (1970). For that reason, a substantial part of defendant’s argument is without merit solely on that basis.
“Involuntary manslaughter is a catch-all concept including all manslaughter not characterized as voluntary.” People v Datema, 448 Mich 585, 594; 533 NW2d 272 (1995). Within the definition of involuntary manslaughter, there are three different theories that can lead to a conviction. Id. at 595-596. Involuntary manslaughter is defined as the killing of another without malice and unintentionally, but (1) in doing some unlawful act neither amounting to a felony nor naturally tending to cause death or great bodily harm, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. Id.; People v Beach, 429 Mich 450, 477; 418 NW2d 861 (1988). The theories are not mutually exclusive, and, in fact, multiple theories may be appropriate in certain circumstances. Datema, supra at 596. Under the first theory, a misdemeanor is elevated to involuntary manslaughter under certain circumstances:
An unlawful act committed with the intent to injure or in a grossly negligent manner that proximately causes death is involuntary manslaughter. In the former instance the defendant has consciously intended to injure in wanton disregard of the safety of others: conduct which if it causes death is (at least) involuntary manslaughter. In the latter instance, criminal liability is imposed because, although the defendant’s acts are not inherently wrong, the defendant has acted or failed to act with awareness of the risk to safety and in wilful disregard of the safety of others.
“[P]ains should be taken not to define [gross negligence] in terms of a wanton and wilful disregard of a harmful consequence known to be likely to result, because such a state of mind goes beyond negligence and comes under the head of malice.”
Unlike murder, involuntary manslaughter contemplates an unintended result and thus requires something less than an intent to do great bodily harm, an intent to kill, or the wanton and wilful disregard of its natural consequences. An intent to injure or gross negligence strikes the appropriate balance in this crime, which by definition criminalizes an unintended result, i.e., death. [Id. at 606 (citations omitted; emphasis in the original).]
Where a defendant commits an unlawful act that is malum prohibitum, involuntary manslaughter may be premised on criminal negligence. Id. at 597. Malum prohibitum is defined as an act that is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law. Id. at 597, n 13. Gross negligence is the equivalent of criminal negli gence and is only necessary if an intent to injure cannot be established. Id. at 604-605.
Here, defendant committed a malum prohibitum offense. He discharged his firearm before it was one-hour before sunrise on November 15, 1995, in violation of a Department of Natural Resources regulation that was authorized by MCL 324.40107; MSA 13A.40107. A person who violates a dnr order issued pursuant to that statute is guilty of a misdemeanor. MCL 324.40118; MSA 13A.40118. An intent to injure cannot be established by the malum prohibitum offense. Therefore, in order to find defendant guilty of involuntary manslaughter, the jury had to find that defendant acted with gross negligence. The instruction given by the trial court was as follows:
The Defendant is charged with the crime of involuntary manslaughter. To prove this charge, the Prosecutor must prove each of the following elements beyond a reasonable doubt:
First, that the Defendant caused the death of [the victim], that is, that [the victim] died as a result of the discharge of a firearm while hunting prior to one-half hour before sunrise.
Second, in doing the act that caused [the victim’s] death, the Defendant acted in a grossly negligent manner.
Third, that the Defendant caused the death without lawful excuse or justification.
Gross negligence means more than carelessness. It means willfully disregarding the results to others that might follow from an act or failure to act. In this case, the act alleged by the Defendant is the discharge of a firearm prior to one-half hour before sunrise contrary to Michigan statute and administrative order.
In order to find the Defendant was grossly negligent, you must find each of the following three things beyond a reasonable doubt:
First, that the Defendant knew of the potential danger to another by the discharge of a firearm prior to one-half hour before sunrise; that is, he knew that there was a situation that required him to take ordinary care to avoid injuring another person.
Second, that the Defendant could have avoided injuring another by the use of ordinary care or by using ordinary care.
Third, that the Defendant failed to use ordinary care to prevent injuring another when, to a reasonable person, it would have been apparent that the discharge of a firearm prior to one-half hour before sunrise was likely to result in serious injury to another person.
The instruction adequately set out what was necessary to obtain a conviction for involuntary manslaughter on the basis of a gross negligence theory. See People v Zak, 184 Mich App 1, 7; 457 NW2d 59 (1990). Moreover, the trial court properly defined gross negligence. We note that with the exception of reminding the jury of the act alleged, the gross negligence instruction given is identical to CJI2d 16.18. In addition, the trial court’s interjecting the nature of the act into the gross negligence definition did not change the meaning of that definition, nor did it elevate the instruction into an improper misdemeanor-manslaughter instruction. Similarly, the involuntary manslaughter instruction that was given was almost identical to the standard instruction, CJI2d 16.10. The jury was fairly apprised of the issues to be tried, and the defendant’s rights were sufficiently protected by the instructions as given. The instructions did not contain any errors requiring reversal.
n
Defendant also argues that the trial court should have granted his motion to quash the information. He claims that the trial court improperly applied the misdemeanor-manslaughter rule to this case where the prosecutor was pursuing a gross negligence theory and not a misdemeanor-manslaughter theory. He further claims that if the trial court had analyzed the preliminary examination evidence under a gross negligence standard, it should have quashed the information. Because sufficient evidence was presented at trial to convict defendant, any error that may have occurred in the bindover is harmless. People v Dunham, 220 Mich App 268, 276-277; 559 NW2d 360 (1996). Accordingly, reversal is not required with regard to defendant’s claim that the trial court should have granted his motion to quash on the basis of an improper determination with regard to the bindover.
m
Defendant’s next argument is that the facts offered during trial could have supported a conviction for the careless, reckless, or negligent discharge of a firearm causing death, MCL 752.861; MSA 28.436(21). He argues that the trial court erred in refusing his request for an instruction regarding this lesser offense. We agree.
MCL 752.861; MSA 28.436(21) provides:
Any person who, because of carelessness, recklessness or negligence, but not wilfully or wantonly, shall cause or allow any firearm under his immediate control, to be discharged so as to kill or injure another person, shall be guilty of a misdemeanor ....
Previously, this statute has been interpreted in different circumstances. In People v Dabish, 181 Mich App 469, 474; 450 NW2d 44 (1989), the defendant intended to aim and fire at the victim. The instruction regarding careless, reckless, and negligent use of a firearm was therefore precluded. In People v Jones, 395 Mich 379, 384-385, 390; 236 NW2d 461 (1975), the defendant testified that he did not intend to shoot the weapon and that it had discharged by accident. The Court found that the instruction was appropriate under those circumstances. Id. at 386. Similarly, in People v Rochowiak, 416 Mich 235, 238; 330 NW2d 669 (1982), where the defendant argued that his capacity to understand his action was diminished, the instruction was appropriate. This statute has not been interpreted in the circumstance where a defendant intentionally discharges his weapon, but has no known or intended victim. Thus, we are presented with an issue of first impression.
Statutory interpretation is a question of law subject to review de novo. People v Pitts, 222 Mich App 260, 265; 564 NW2d 93 (1997).
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. The first criterion in determining intent is the specific language of the statute. The Legislature is presumed to have intended the meaning it plainly expressed. Thus, statutory language should be construed reasonably, keeping in mind the purpose of the act. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. If reasonable minds can differ with respect to the meaning of a statute, however, judicial construction is appropriate. The court must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statue. [Id. at 265-266 (citations omitted).]
Every word and phrase should be given its plain and ordinary meaning unless otherwise defined. People v Williams, 205 Mich App 229, 233; 517 NW2d 315 (1994).
The statute focuses on a defendant’s carelessness, recklessness, or negligence in discharging a firearm so as to kill or injure another person. In this case, the firearm at issue was purposely discharged. Clearly carelessness, recklessness, or negligence did not cause the discharge. However, carelessness, recklessness, or negligence did cause the firearm to be “discharged so as to kill or injure another person . . . .” Giving meaning to all of the words in the statute, we find that defendant properly requested an instruction regarding the lesser misdemeanor charge pursuant to MCL 752.861; MSA 28.436(21). Moreover, we note that it is proper to instruct regarding both involuntary manslaughter and careless discharge if the proofs or evidence at trial could support a conviction on either charge. See Rochowiak, supra at 243, 247; People v Hendricks, 446 Mich 435, 444-445; 521 NW2d 546 (1994).
In this case, both the involuntary manslaughter statute and the careless discharge of a firearm statute have a common purpose, relating to the protection against killing or injury to another person. See Rochowiak, supra at 242-243. Further, conviction on the involuntary manslaughter charge against defendant required proof of defendant’s gross negligence. Necessarily, proof that was sufficient to support a conviction of the proposed misdemeanor, the lesser offense, was presented as part of the showing of the greater offense. Therefore, an instruction regarding the misdemeanor was appropriate. Hendricks, supra at 444-446.
Where a trial court improperly fails to include an instruction regarding a lesser included offense, the remedy is to remand for entry of a conviction of the lesser included offense and for resentencing or, if the prosecution desires, for a retrial on the charge for wliich the defendant was convicted. People v Bryan, 92 Mich App 208, 225-226; 284 NW2d 765 (1979). Ac cordingly, we vacate the conviction and remand for further proceedings consistent with this opinion.
IV
Finally, defendant claims that the trial court erred in failing to instruct the jury regarding the defense of accident. We disagree.
As previously noted, involuntary manslaughter is a general intent crime. Wilkins, supra; Kelley, supra. Because involuntary manslaughter is not a specific intent crime, accident is not a defense. People v Hess, 214 Mich App 33, 38-39; 543 NW2d 332 (1995). Therefore, the trial court properly did not instruct the jury regarding the defense of accident.
Vacated and remanded for either entry of a conviction of the lesser charge of careless, reckless, or negligent discharge of a firearm causing death or, if the prosecution wishes, for retrial on the charge of involuntary manslaughter. We do not retain jurisdiction.
We also note that the trial court incorrectly instructed the jury that involuntary manslaughter is a specific intent crime. This error does not require reversal, however, because we find that the juiy instructions as a whole fairly presented the issues, set out the elements of the crime, and protected the defendant’s rights. | [
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Cavanagh, J.
Plaintiff Steve Reeves, III, as personal representative of the estates of Kevin Reeves and Kevin Reeves, Jr., and plaintiff Kevin Redmond, as personal representative of the estates of Shawn Reeves and Tanesha Reeves, appeal as of right the trial court orders granting summary disposition to defendants Kmart Corporation and the Michigan Department of Transportation (mdot). We affirm.
In 1992, Doug Perdue, a district manager with defendant Kmart, became concerned that individual Kmart stores were paying too much for waste removal. Session Recycling, Inc., sent Kmart a letter describing itself as a minority-owned waste-hauling firm that recycled to the maximum possible extent and avoided the use of landfills wherever possible. After meeting with David Cartwright, a representative of Session, and negotiating a price that represented “up to 50% savings” for the service at various stores, Perdue arranged for Cartwright to make a presentation at a meeting of store managers. At the meeting, Cartwright distributed an eight-page brochure that described the company as having experienced employees, fully automated trucks, and over thirty years of experience in waste management. The brochure also contained the names of Session’s existing clientele; several Fortune 500 companies were included on the list.
Several Kmart stores subsequently contracted with Session to have the latter pick up their garbage. The following procedure was used for waste disposal: When the garbage bin at a Kmart store was nearly full, store personnel would call for a pick-up. Session would then go to the store, pick up the full bin, leave an empty one, and get a signed receipt showing that the pick-up had been made. A Kmart employee testified that the pick-up procedure did not require Kmart employees to leave the store.
On January 7, 1994, a Session truck driven by Richard Hayter picked up garbage from a Kmart store in Warren. Subsequently, Hayter got off the Lodge Freeway at West Grand Boulevard, traveling in excess of the speed limit, and struck three cars on the service drive before colliding with a Ford Escort. The occupants of the Escort, Kevin and Shawn Reeves and their two minor children, Kevin, Jr., and Tanesha, were all killed.
An inspection of the truck following the accident revealed many mechanical defects, several of which would have resulted in the vehicle being placed out of service following an inspection. Among the more seri ous problems were that four of the six brakes on the truck were defective, and a fifth was inoperative; eight of the ten tires were underinflated; the vehicle was both overloaded and improperly loaded; and there was excess free play in the steering mechanism. The inspector stated in his report, “In 35 years of heavy truck inspections I have not experienced [such] disregard for the laws of safe truck operation or contempt for the motoring public.” Two employees of Session testified in affidavits that, before the day of the accident, Kmart employees had made comments regarding the condition of the truck such as “Will you make it back with that truck?” and “That truck looks dangerous the way it is loaded.”
The mdot had designated speed limit signs indicating that drivers should slow to twenty-five miles an horn on the exit ramp. However, at the time of the accident, there were no such signs on the exit ramp.
Plaintiffs filed a wrongful death action in the Wayne Circuit Court against a number of defendants, including Session, Hayter, and Kmart. Plaintiffs also filed a lawsuit in the Court of Claims against the mdot, alleging that it was liable for its failure to have posted traffic signs to alert drivers to reduce speed while on the exit ramp. The two actions were subsequently consolidated in the Wayne Circuit Court. With the exceptions of Kmart and the mdot, all the defendants have either been dismissed or have entered settlement agreements with plaintiffs and are not party to this appeal.
On August 28, 1995, the mdot moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). The mdot argued that it did not have jurisdiction over the area of the Lodge Freeway where the acci dent occurred, that it was immune from suit because the alleged defect in the highway was not on the improved portion of the roadway, and that there was no genuine issue of material fact that the absence of speed limit signs on the exit ramp was not a proximate cause of the accident. On September 25, 1995, the trial court granted the mdot’s motion on the bases that the speed limit signs, if installed, would not have been on the traveled portion of the freeway, and there was no genuine issue of material fact that the absence of speed limit signs was not a proximate cause of the accident.
On August 8, 1995, Kmart filed a motion for summary disposition, which the trial court denied. Plaintiffs then filed an amended complaint in which they narrowed their claims. Kmart renewed its motion for summary disposition on November 30, 1995. On July 17, 1996, the trial court issued an opinion and order granting Kmart’s motion. The court concluded that Kmart did not owe a duty to plaintiffs’ decedents to exercise care in the selection of an independent contractor and to monitor its independent contractor to ensure safe execution of its duties, and therefore granted Kmart’s motion for summary disposition pursuant to MCR 2.116(C)(8). The court further concluded that, if such a duty exists, the duty requires only that Kmart not be reckless in its selection of an independent contractor. Thus, because plaintiffs failed to present any competent evidence to suggest that Kmart was reckless in selecting Session for w<iste removal, summary disposition still would be appropriate under MCR 2.116(C)(10).
i
Plaintiffs first argue that the trial court erred in finding that Kmart owed no duty to plaintiffs’ decedents in its selection and retention of an independent contractor. This is a question of law that we review de novo. See Schadewald v Brulé, 225 Mich App 26, 35; 570 NW2d 788 (1997).
The general rule is that an employer of an independent contractor is not liable for the contractor’s negligence. Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333 (1985); Janice v Hondzinski, 176 Mich App 49, 56; 439 NW2d 276 (1989). However, the Supreme Court has provided two exceptions to this general rule. A party may be liable for the negligence of an independent contractor where the party retains and exercises control over the contractor or where the work is inherently dangerous. Funk v General Motors Corp, 392 Mich 91, 108-110; 220 NW2d 641 (1974), overruled in part on other grounds in Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982). Although Funk addressed the rule in the context of a landowner and the contractor hired to build a structure on the land, we do not believe, and neither party argues, that the Supreme Court intended the rule to be limited to that factual situation.
Plaintiffs contend that Funk supports their claim that Michigan recognizes a duty in the selection and retention of an independent contractor. Plaintiffs rely on the following language from Funk: “Ordinarily a landowner is not responsible for injuries caused by a carefully selected contractor to whom he has delegated the task of erecting a structure.” Funk, supra at 101. Plaintiffs argue that the use of the words “carefully selected” to modify contractor imposes a duty of care upon an employer when selecting a contractor. We disagree. First, in Funk, the Court found that the defendant could be held liable for the plaintiffs injuries because it had retained control over the manner in which the work was to be performed, not because it had faded to use care in selecting its contractors. See id. at 108. The Funk Court did not address whether a general duty exists regarding the selection of an independent contractor.
Second, as Kmart contends, plaintiffs’ interpretation of this language creates a Catch-22 for anyone who hires an independent contractor. In asserting that Kmart did not take due care in employing and retaining Session, plaintiffs argue that Kmart should have investigated Session to ensure that its trucks were mechanically safe, that the trucks were properly loaded, and that the drivers were qualified. However, had Kmart taken these actions, plaintiffs could then reasonably claim that it was liable under Funk because it had retained control of the enterprise. Thus, under plaintiffs’ construction of Funk, Kmart would be liable for an injury if it carefully monitored an independent contractor and if it did not monitor the contractor at all.
Finally, the Funk Court explained that mere owners are not ordinarily liable because owners are not typically professional builders and are not knowledge able concerning safety measures. See id. at 104-105. The same reasoning applies in the instant case. Kmart is not in the business of picking up and disposing of garbage. Accordingly, supervising the procedure used in garbage collection and removal is not part of its typical activities. Indeed, people generally hire independent contractors to do work that they do not have the time or the expertise to do themselves. It would not be efficient, then, to require them to learn enough about the work to oversee its performance and supervise safety procedures.
Plaintiffs maintain that Kmart should have known that Session would be unable to perform the terms of the contract in a safe manner because the price was substantially lower than Kmart’s previous contractors charged. In Funk, the Supreme Court expressly declined to address whether an owner should be subject to liability for the negligence of his contractor where an unusually low bid is submitted. See id. at 110, n 14. We do not think it reasonable to assume that a lower price is synonymous with a lack of competence. While it is possible that the lower price offered by a contractor may indicate substandard service, it may also mean that the contractor is more efficient than its competitors, the competitors are overpriced, or the contractor is an aggressive company willing to forgo profits temporarily in order to increase its market share.
Plaintiffs also argue that Michigan has adopted § 411 of the Restatement of Torts, 2d, which addresses the negligent hiring of a contractor. The Restatement provides:
An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons. [2 Restatement Torts, 2d, § 411, p 376.]
Plaintiffs point to references to this section in White v Chrysler Corp, 421 Mich 192; 364 NW2d 619 (1984), and Meagher v McNeely & Lincoln, Inc, 212 Mich App 154, 156; 536 NW2d 851 (1995), as support for their claim that Michigan has adopted § 411. After reviewing White and Meagher, we conclude that they do not support plaintiffs’ assertion that Michigan has adopted § 411. White involved a claim of negligent entrustment. White, supra at 197. The citation to the Restatement occurs in a footnote. See id. at 202, n 12. We conclude that the White Court’s reference to § 411 was dicta. Meagher similarly does not establish that Michigan has adopted § 411. The Meagher panel specifically stated that it is unclear whether Michigan recognizes a duty for the negligent hiring or selection of a contractor. Meagher, supra at 155. The Meagher Court did cite § 411 and comment c to that section in support of the following statement: “[A]bsent unique circumstances not present here, the employer had no duty to investigate the contractor and was free to assume the contractor was of good reputation and competent to do the work safely.” Meagher, supra at 156. While the Meagher panel did not elaborate on the meaning of “unique circumstances,” we assume that it was referring to the two exceptions set forth in Funk. Accordingly, to the extent that § 411 of the Restatement conflicts with Funk, we conclude that it has not been adopted in Michigan.
In support of their claim, plaintiffs have supplied the affidavits of three experts in the trucking industry who have averred that corporations have a duty to investigate and determine whether the trucking companies they hire are competent. However, whether a defendant owes any duty to a plaintiff to avoid negligent conduct in a particular circumstance is a question of law. Hughes v PMG Building, Inc, 227 Mich App 1, 5; 574 NW2d 691 (1997). The duty to interpret and apply the law has been allocated to the courts, not to the parties’ expert witnesses. Hottmann v Hottmann, 226 Mich App 171, 179; 572 NW2d 259 (1997).
As discussed above, we conclude that Michigan has not recognized a duty requiring an employer to exercise care in the selection and retention of an indepen dent contractor. Furthermore, we hold that such a duty does not exist. As the trial court explained in its opinion:
When an independent contractor is called upon to perform tasks that a person of average intelligence can perform with minimal or no training and that task may be accomplished by a multiplicity of methods, the person hiring the independent contractor ought to be able to presume that the independent contractor can competently perform the duties assigned to her. There should be no need to investigate to determine whether the independent contractor has the resources and abilities to perform properly the assigned tasks.
To hold otherwise would require one who hires a lawn service to inspect the track used to transport equipment to insure not only that the track is capable of transporting the lawn mowers and other related equipment, but also to determine whether it is properly maintained and suitable for use i.e. check the tires, brakes, oil, transmission and anything else that may require regular and routine maintenance. That would still not be enough to guard against liability. The would-be employer of the lawn service would have to obtain the driving records of the employees to make sure they can safely operate the track. Finally, a financial investigation of the lawn service company would be required to make sure it is not under capitalized and likely to neglect the maintenance of its equipment. Similar investigations would be required before hiring any type of laborer as an independent contractor. The economic costs and time constraints associated with such investigations would put many competent laborers out of business.
The implications arising from imposition of the duty advocated by plaintiffs are too far reaching. Michigan courts have recognized that “[m]odem life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particularly if it is their duty to do so.” Aetna [Casaulty & Surety Co] v Ralph Wilson Plastics, 202 Mich App 540, 547-548 [509 NW2d 520] (1993); Tasca v GTE Products Corp, 175 Mich App 617, 624 [438 NW2d 625] (1988). In this case the independent contractor contractually undertook the duty to remove and dispose of trash from Kmart’s premises. Kmart ought to be able to rely upon its independent contractor [to be] capable of performing properly this menial and mundane task.
In the instant case, plaintiffs have not claimed that garbage collection is an inherently dangerous activity or that Kmart retained control of the garbage collection operations at its stores. Accordingly, Kmart was “free to assume the contractor was of good reputation and competent to do the work safely.” Meagher, supra at 156. Because plaintiffs have not presented facts establishing that Kmart owed a duty to plaintiffs’ decedents, their negligence claims fail as a matter of law. See Smith v Kowalski, 223 Mich App 610, 613; 567 NW2d 463 (1997). Therefore, the trial court did not err in granting Kmart’s motion for summary disposition pursuant to MCR 2.116(C)(8).
n
Plaintiffs also argue that the trial court erred in granting the mdot’s motion for summary disposition. The trial court held that the mdot was immune from suit under the highway exception to governmental immunity, MCL 691.1402; MSA 3.996(102), because the speed limit signs would not have been on the traveled portion of the roadway. The trial court further concluded that the absence of speed limit signs did not constitute a proximate cause of the accident.
After the trial court granted the mdot’s motion for summary disposition, the Supreme Court decided Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996). In Pick, the Court held that the duty to maintain a highway in reasonable repair includes “a duty to provide adequate warning signs or traffic control devices at known points of hazard . . . under the highway exception of the governmental tort liability act.” Id. at 619. To be a “point of hazard” for purposes of the highway exception, the condition must be one that uniquely affects vehicular travel on the improved portion of the roadway, as opposed to a condition that generally affects the roadway and its surrounding environment. Id. at 623.
Because the trial court did not have the benefit of Pick, it did not address whether the West Grand Boulevard exit ramp from the southbound Lodge Freeway constituted a known point of hazard. However, it is unnecessary to remand this case to the trial court for resolution of the question because we conclude that the trial court correctly found that the absence of speed limit signs on the exit ramp was not a proximate cause of the accident.
To establish a prima facie case of negligence, a plaintiff must demonstrate that the defendant’s breach of its duty was the proximate cause of the plaintiff’s injuries. Richardson v Michigan Humane Society, 221 Mich App 526, 528; 561 NW2d 873 (1997).
The Supreme Court has explained:
[P]roving proximate cause actually entails proof of two separate elements: (1) cause in fact, and (2) legal cause, also known as “proximate cause.”
The cause in fact element generally requires showing that “but for” the defendant’s actions, the plaintiff’s injury would not have occurred. On the other hand, legal cause or “proximate cause” normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences. A plaintiff must adequately establish cause in fact in order for legal cause or “proximate cause” to become a relevant issue. [Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994) (citations omitted).]
Normally the issue of causation is for the jury. However, if there is no issue of material fact, the trial court may decide the issue itself. Halbrook v Honda Motor Co, Ltd, 224 Mich App 437, 446; 569 NW2d 836 (1997). In the present case, we find that plaintiffs did not establish a genuine issue of factual causation.
In support of its motion for summary disposition, the mdot attached portions of the deposition transcripts of two of plaintiffs’ experts, Claude Travis and Judson Matthias. Travis testified that Hayter was traveling at fifty-five miles an hour when he reached the top of the ramp. Travis further stated that, even at that speed, the truck would have been able to stop in time to avoid the accident if the tires on the truck had been properly inflated, the tread depth on the tires had been normal, the truck had been properly loaded, and all six brakes had been functioning. Matthias testified that over 5.5 seconds elapsed from the time the truck left the exit ramp to the time of impact, and this was more than enough time for Hayter to see and react to the presence of the vehicles stopped on the service drive. Matthias further testified that, had the truck been equipped with adequate brakes, Hayter would have been able to stop the vehicle in time to avoid the collision.
Plaintiffs do not dispute that the truck was in poor condition, that it was both overloaded and improperly loaded, and that Hayter was traveling too fast. Plaintiffs merely assert that the truck could have stopped if it had been traveling more slowly while on the exit ramp, and therefore more slowly at the time it entered the service drive. Plaintiffs point to the affidavit of Hayter, in which he stated that he believes that he would have slowed down if he had seen speed limit signs on the exit ramp.
However, even accepting Hayter’s testimony as trae, we conclude that it does not create a genuine issue of material fact regarding the issue of causation. Two of plaintiffs’ experts testified that, even at the speed at which Hayter was traveling at the time he reached the service drive, he would have been able to stop the truck in time to avoid the collision if the track had been properly maintained and outfitted with functioning brakes. Plaintiffs offered no contrary evidence. Plaintiffs therefore have not established that, but for the absence of speed limit signs on the exit ramp, the accident would not have occurred. Because plaintiffs have not shown a genuine issue of factual causation, the trial court did not err in granting the mdot’s motion for summary disposition.
Affirmed. Defendants, being the prevailing parties, may tax costs pursuant to MCR 7.219.
In November 1993, Session changed its name to Central Recycling. In order to avoid confusion, we will refer to the company as Session.
This case was originally assigned to Judge James R. Chylinski. Judge Chylinski granted the mdot’s motion for summary disposition on September 25, 1995. On November 30, 1995, Judge Chylinski granted Kmart’s motion for summary disposition. Plaintiffs successfully moved to have Judge Chylinski disqualified from the case, and it was then assigned to Judge Brian K. Zahra. Judge Zahra then granted plaintiffs’ motion to have the order granting summary disposition set aside. After addressing Kmart’s motion for summary disposition on the merits, Judge Zahra granted the motion.
Another panel of this Court has also stated that it is unclear whether Michigan recognizes a duty in the hiring or selection of a contractor. See Janice, supra at 56.
Comment c provides in pertinent part:
The amount of care which should be exercised in selecting an independent contractor is that which a reasonable man would exercise under the circumstances, and therefore varies as the circumstances vary.
Certain factors are important: (1) the danger to which others will be exposed if the contractor’s work is not properly done; (2) the character of the work to be done — whether the work lies within the competence of the average man or is work which can properly be done only by persons possessing special skill and training; and (3) the existence of a relation between the parties which imposes upon the one a peculiar duty of protecting the other.
Thus, there is some overlap between the factors that the Restatement concludes require a higher degree of care and the exceptions of retained control and inherently dangerous activity set out in Funk.
Plaintiffs cite several additional cases in support of their contention that Michigan recognizes a duty on the part of an employer to exercise care in the selection of an independent contractor. However, we conclude that these cases do not support that proposition. In Moody v Pulte Homes, Inc, 423 Mich 150; 378 NW2d 319 (1985), the plaintiff argued that the trial court erred in failing to give certain instructions to the jury regarding the employer’s duty to hire a careful and competent contractor. Id. at 180-181. The Court held that the trial court did not err in failing to give these instructions, because no evidence was presented in support of the plaintiffs claims. Id. at 158. Thus, the Court never addressed whether the substance of the plaintiff’s proposed jury instructions was an accurate statement of Michigan law.
In Cary v Thomas, 345 Mich 616, 629-630; 76 NW2d 817 (1956), the Supreme Court cited with approval the following passage from 39 CJ, Master and Servant, § 1530, p 1324:
[T]he general rule deducible from the decisions and the one now universally recognized is that, where the relation of an independent contract exists, and due diligence has been exercised in selecting a competent contractor, and the thing contracted to be done is not in itself a nuisance, nor will necessarily result in a nuisance if proper precautionary measures are used, and an injury to a third person residís, not from the fact that the work is done, but from the wrongful or negligent manner of doing it by a contractor or his servants, the contractee is not liable therefor. [Emphasis added.]
However, to the extent that the Supreme Court’s approval of this language indicates the existence of a duty in the selection of an independent contractor, we conclude that the duty has been limited by the Court’s subsequent decision in Funk, supra.
While resolution of the issue is not necessary in the present case, we question whether a standard freeway exit ramp constitutes a known point of hazard within the meaning of the highway exception. A special hazard has been found to exist where a tree limb that had been partially severed by a storm dangled over the roadway for more than a month before falling on a car, McKeen v Tisch (On Remand), 223 Mich App 721, 724; 567 NW2d 487 (1997), and where the proximity of a railroad crossing to an intersection created a danger to motorists making turns, Iovino v Michigan, 228 Mich App 125, 134; 577 NW2d 193 (1998). From our review of the record, there is no indication that the particular ramp is any different from the numerous other freeway exit ramps in this state or that there is something unique about its design, location, or characteristics that creates a special hazard to drivers.
In arguing that the trial court erred in finding that the absence of speed limit signs was a proximate cause of the accident, plaintiffs rely on the deposition testimony of the mdot’s accident reconstruction expert, Donald Rudny, and the mdot’s safety consultant, Howard Bosscher. However, although plaintiffs quoted this deposition testimony in their brief in opposition to the mdot’s motion for summary disposition, plaintiffs failed to attach to their brief excerpts from the actual deposition transcripts. Plaintiffs have attached excerpts of the deposition transcripts to their brief on appeal; however, this Court is limited to the record established by the trial court. A party may not expand the record on appeal. Trail Clinic, PC v Bloch, 114 Mich App 700, 713; 319 NW2d 638 (1982); see MCR 7.210. In any case, even if plaintiffs had included the depositions of Rudny and Bosscher in the record, they have failed to explain how the testimony supports their claim that the lack of speed limit signs on the ramp constituted a proximate cause of the injuries to plaintiffs’ decedents.
The trial court noted that it found Hayter’s affidavit to be self-serving. Because it was undisputed that Session’s facilities were located one-quarter mile south of the site of the accident and Hayter had used the exit ramp many times previously, the veracity of Hayter’s testimony is open to doubt. Nevertheless, a court may not weigh credibility in deciding a motion for summary disposition. Henderson v State Farm Fire & Casualty Co, 225 Mich App 703, 709; 572 NW2d 216 (1997). | [
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Young, J.
This, defendant’s appeal as of right from the trial court’s order granting plaintiff physical custody of the parties’ three minor children, is the latest leg of a six-year custody marathon in which these parties have made legal history in this state. It remains to be seen whether history will also record that they were as faithful to and as invested in their parental duties as they have been devoted to conducting their internecine legal war of attrition. For the reasons stated below, we affirm the trial court’s award of custody to plaintiff.
I. FACTUAL AND PROCEDURAL HISTORY
A. “FLETCHER F
The parties were married in 1975. Plaintiff filed for divorce in 1990. In December 1991, after considering the statutory factors for determining the best interests of the children, the trial court issued an opinion anil order granting physical custody of the parties’ children to plaintiff. Defendant appealed that order to this Court, which concluded that the trial court erred with regard to factors (b), (e), and (f) of § 3 of the Child Custody Act, MCL 722.23; MSA 25.312(3). Fletcher v Fletcher, 200 Mich App 505, 513-518; 504 NW2d 684 (1993). Applying a de novo standard of review, this Court found that the parties were equal on all factors except factor (i), which favored defendant, and reversed the order and awarded physical custody to defendant. Id. at 518-519.
Plaintiff appealed this Court’s decision to the Supreme Court, which agreed with this Court’s finding of error regarding factors (e) and (f). Fletcher v Fletcher, 447 Mich 871, 882; 526 NW2d 889 (1994). However, the Supreme Court concluded that this Court erred in applying a de novo standard of review to determine the proper custody arrangement, and therefore remanded the case to the trial court for further proceedings. Id. at 888-890. The Court instructed that, on remand, the trial court should consider “up- to-date information, including the children’s current and reasonable preferences, as well as the fact that the children have been living with the plaintiff during the appeal and any other changes in circumstances arising since the trial court’s original custody order.” Id. at 889.
B. the current appeal
Consistent with the instruction of the Supreme Court, the trial court conducted several evidentiary hearings on remand. The hearings occurred over approximately an eight-month period. At the conclusion of these hearings, the trial court found that no established custodial environment existed and that custody was to be determined on a showing by a preponderance of the evidence that a particular placement was in the children’s best interests. See Baker v Baker, 411 Mich 567, 579; 309 NW2d 532 (1981). The trial' court considered the best interest factors provided in the Child Custody Act as amended by 1993 PA. 259 and again awarded physical custody to plaintiff. Defendant now appeals from that decision.
n. ANALYSIS
The Supreme Court clarified in the first appeal of this case the proper standard of review in child custody cases. Findings of fact are reviewed under the great weight of evidence standard and will be affirmed unless the evidence clearly preponderates in the opposite direction. MCL 722.28; MSA 25.312(8); Fletcher, supra, 447 Mich 877-878. Discretionary rulings are reviewed under a “palpable abuse of discretion” standard. MCL 722.28; MSA 25.312(8); Fletcher, supra, 447 Mich 879. Therefore, because the trial court’s custody decision is a discretionary dispositional ruling, a custody award should be affirmed unless it constitutes an abuse of discretion. Fletcher, supra, 447 Mich 880. Finally, questions of law in custody decisions are reviewed for clear legal error. MCL 722.28; MSA 25.312(8) A trial court commits legal error when it incorrectly chooses, interprets, or applies the law. Fletcher, supra, 447 Mich 881.
Defendant argues that the trial court erred on remand in its analysis of factors (a), (b), (c), (d), and (j), and that its findings with respect to those factors are against the great weight of the evidence. We disagree and affirm the trial court’s custody award.
Factor (a) requires the trial court to consider “[t]he love, affection, and other emotional ties existing between the parties involved and the child.” MCL 722.23(a); MSA 25.312(3)(a). The trial court found that the children were “somewhat more visible in their expression of affection toward defendant.” However, it weighed this factor equally because it found that defendant discouraged the children from showing affection toward plaintiff and that “as time passed the [e]ffect [of defendant’s influence] on the children has subsided somewhat and the children have strong emotional ties with plaintiff.” The evidence supports these findings. Plaintiff testified that defendant told the children that they did not need a father like plaintiff and that they did not have to accept his love. While defendant denied making such statements, the trial court found plaintiff to be more credible. We give deference to the trial court’s ability to judge the credibility of witnesses. Thames v Thames, 191 Mich App 299, 302; 477 NW2d 496 (1991). The evidence does not clearly preponderate against the trial court’s finding that this factor is neutral.
We also reject defendant’s claim that the trial court committed clear legal error in considering under more than one factor evidence of defendant’s negative influence on the children’s relationship with plaintiff. As this Court has previously noted, the factors have some natural overlap. See Carson v Carson, 156 Mich App 291, 299-300; 401 NW2d 632 (1986). We conclude that in order to accurately assess under factor (a) the emotional ties between the parties and the children, the trial court was free to consider defendant’s influence on plaintiff’s relationship with the children even though that evidence was also relevant under factor (j). We likewise find no merit in defendant’s assertion that the trial court placed undue emphasis on this evidence.
Defendant also argues that the trial court abused its discretion in refusing to admit as evidence of the children’s greater bond with defendant numerous drawings, pictures, and notes given by the children to defendant. However, because defendant failed to include this issue in her statement of questions presented, we decline to address it. MCR 7.212(C)(5); City of Lansing v Hartsuff 213 Mich App 338, 351; 539 NW2d 781 (1995).
Factor (b) concerns “[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.” MCL 722.23(b); MSA 25.312(3)(b). The trial court found that this factor favored plaintiff because plaintiff “is more inclined to provide guidance for the children.” The court further found defendant’s claims that plaintiff’s disciplining techniques were excessive to be “somewhat exaggerated,” and that defendant, who more often sought the children’s approval before planning activities for them, “essentially lets the children do what they want.” The record supports these findings. The record also supports the trial court’s finding that defendant’s parenting approach led to confrontational behavior by the children toward plaintiff. The trial court’s finding that factor (b) favored plaintiff is not against the great weight of the evidence.
Factor (c) addresses “[t]he capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.” MCL 722.23(c); MSA 25.312(3)(c). The trial court found that, although both parties had sufficient earning capacity to appropriately care for the children, factor (c) favored plaintiff because defendant had used poor judgment in financial matters that affected the children. The court explained:
[T]he record establishes that defendant has used poor judgment in financial matters which has affected the children. Despite the fact that defendant had sufficient income and property after the divorce to secure adequate housing, she shared an apartment with a lesbian couple. The Court finds that the children were aware that the couple in the apartment were lesbians. In fact testimony to this effect was placed on the record while defendant still lived in the apartment. Credible evidence also establishes the children were exposed to negative aspects of the couple’s relationship, including their arguments.
The Court is not passing on the morality of the couple’s relationship. Living in an apartment during a transition period also does not necessarily show poor financial planning. However, the record establishes that exposure to this specific living arrangement was not in the children’s best interests.
. . . [Defendant exposed the children to this situation as a result of her efforts to save money, when she had the financial capacity to avoid this situation. This incident reflects on defendant’s disposition for the children’s needs.
In addition to these circumstances, there was evidence that, because the apartment defendant shared with another adult couple had only two bedrooms, the children slept on a sofa bed and a cot during their weekly overnight visits. However, the trial court did not place significant emphasis on factor (c) because, during the course of the hearings on remand, defendant decided to purchase her own home. We cannot say that the trial court’s finding with regard to this factor was against the great weight of the evidence.
Factor (d) requires the trial court to consider “[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.” MCL 722.23(d); MSA 25.312(3)(d). The trial court found that factor (d) favored plaintiff slightly, and the court did not place significant emphasis on this factor. The trial court’s finding is supported by the evidence. The children have lived in plaintiff’s home their entire lives and have friends in the neighborhood. Moreover, the trial court found that plaintiff’s relationship with the children had continued to improve and that the disagreements between the children and plaintiff were the kind of normal disagreements that occur between parent and child. The trial court’s finding with respect to factor (d) is not against the great weight of the evidence.
Factor (j) requires the court to consider “[t]he willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.” MCL 722.23(j); MSA 25.312(3)(j). The trial court concluded that this factor favored plaintiff. The record supports the trial court’s findings that plaintiff was more inclined to seek defendant’s input before making decisions involving the children and that defendant’s statement that she would encourage the children to visit plaintiff if she was awarded custody was inconsistent with her actions in the past. There was also evidence that defendant remained hostile toward plaintiff, made decisions about their children without informing plaintiff, and actively undermined his attempts to maintain discipline. While defendant testified that she encouraged the children to work on their relationship with plaintiff and that she tried to keep open communication with plaintiff, it was for the trial court to assess the parties’ credibility. Thames, supra. The evidence does not clearly preponderate against the trial court’s finding that factor (j) favors plaintiff. Moreover, we disagree with defendant’s assertion that the trial court gave this factor disproportionate weight.
m. CONCLUSION
We recognize the difficulty that is inherent in making custody determinations. The overriding concern is and must be the best interests of the children. See Heid v AAASulewski (After Remand), 209 Mich App 587, 595; 532 NW2d 205 (1995). In remanding this case to the trial court, the Supreme Court recognized that trial courts
are in a superior position to make accurate decisions concerning the custody arrangement that will be in a child’s best interests. Although not infallible, trial courts are more experienced and better situated to weigh evidence and assess credibility. Trial courts not only hear testimony and observe witnesses, but also may elicit testimony, interview children, and invoke other judicial resources to assure a thorough and careful evaluation of the child’s best interests. [Fletcher, supra, 447 Mich 889-890.]
We believe that the best interests of the children in tlris case are served by bringing this matter to a close. Having reviewed the entire record of the hearings conducted on remand, we conclude that the trial court’s findings were not against the great weight of the evidence. Furthermore, the trial court did not commit clear legal error in its analysis of the statutory best interest factors. Finally, there was no palpable abuse of discretion in the trial court’s determination that the analysis of the statutory best interest factors supports the award of custody to plaintiff, and we find to be without merit defendant’s claim that the trial court was biased against her.
Affirmed.
In its 1991 custody decision, the trial court considered the statutory factors provided in 1980 PA 434, MCL 722.23; MSA 25.312(3):
“Best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
0) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) Any other factor considered by the court to be relevant to a particular child custody dispute.
As explained infra, the trial court’s decision on remand was based on the factors provided in the statute as amended by 1993 PA 259.
Section 3 of the Child Custody Act currently provides:
As used in this act, “best interests of the child” means the sum i:otal of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between Hie parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to pro\ide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
Q) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute. [MCL 722.23; MSA 25.312(3).] | [
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Young, Jr., J.
Plaintiffs appeal as of right from the order denying their request for a writ of mandamus compelling defendant to comply with his statutory duties under the opening of private roads and temporary highways act, MCL 229.1 et seq.; MSA 9.281 et seq. For the reasons stated below, we are constrained to reverse and remand for further proceedings.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
This dispute arose as a product of plaintiffs’ effort to gain approval for opening a private road over the property owned by L & L Development, Ltd. (l & l), which property ran adjacent to the western boundary of plaintiffs’ property. Plaintiffs apparently desire to build a subdivision on their land which was to be accessed by a private road situated on the l & l property.
On January 29, 1996, plaintiffs applied to the Grass Lake Township supervisor for the opening of a private road across l & l’s property in accordance with the opening of private roads act. By letter dated April 10, 1996, defendant’s attorney advised plaintiffs that the Grass Lake Township Board had adopted a motion denying their request. The letter further advised that the township board was uncertain of the constitutionality of the act, noting that one decision of this Court had held it unconstitutional while another had held it constitutional. The board further advised that, even if the act were valid, it was intended only to apply to “one, and only one owner who might find himself with a landlocked parcel of land,” not to plaintiffs’ situation in which plaintiffs sought to develop a subdivision on their property serviced by the proposed private road on L & l’s land.
In response, plaintiffs filed a complaint for a writ of mandamus against defendant for his failure to comply with the statutory duty under the act to commence a proceeding in accordance with its provisions. Plaintiffs also alleged that defendant, being a real estate broker involved in offering lots for sale by L & L, had an economic stake in the l & l properly, creating a conflict of interest such that any proceeding conducted by defendant under the act would be unfair. Plaintiffs requested that the trial court issue a writ of mandamus compelling defendant to perform his duties under the act and further to exercise supervisory control over the proceedings.
Following a hearing, the trial court denied plaintiffs’ request for a writ of mandamus, essentially finding that, because the act authorized a taking for private use and did not provide “even rudimentary due process,” the act was therefore unconstitutional. The trial court recognized that this Court in Bieker v Suttons Bay Twp Supervisor, 197 Mich App 628; 496 NW2d 398 (1993), upheld the constitutionality of the act against an identical taking challenge, but criticized the Bieker Court’s holding as “deeply flawed.” Finally, the trial court concluded that the act, even if constitutional, did not apply to plaintiffs’ circumstances:
Even if it were to be found that the [opening of private roads act] was constitutional and that the supervisor was authorized to act, he would not be authorized to create a road other than for the title-holder of the land seeking the road. Any determination of necessity would solely go to that title-holder and would not go to a subdivision or even to multiple purchasers under the title-holder. To extend the use beyond the title-holder converts it from a private road to a public road.
Plaintiffs appeal from the May 16, 1996, order and opinion denying their request for a writ of mandamus.
H. CONSTITUTIONALITY OF THE PRIVATE ROADS ACT
A. TAKING CLAUSE
We first address the trial court’s decision holding that the private roads act violates the Taking Clause of the 1963 Constitution, art 10, § 2. We agree with the trial court on this issue and would affirm its decision were we not obligated by MCR 7.215(H) to follow this Court’s contrary decision in Bieker. Because we believe Bieker to be wrongly decided, we declare a conflict with that decision under MCR 7.215(H).
We must construe statutes and constitutional provisions according to their plain terms. Grand Traverse Co v Michigan, 450 Mich 457, 464; 538 NW2d 1 (1995); Michigan Bell Telephone Co v Dep’t of Treasury, 445 Mich 470, 486; 518 NW2d 808 (1994). If the meaning of a statute or constitutional provision is clear and unambiguous, there is no room for judicial construction or interpretation. Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993); People v Bd of State Canvassers, 323 Mich 523, 528-529; 35 NW2d 669 (1949). Applying these principles to the private roads act, we conclude that the act is irreconcilably at odds with our 1963 constitution.
The private roads act states, in relevant part, as follows:
When an application is made to the township supervisor for a private road, he shall give notice in writing to the owner or occupant of the land over which the road is proposed to be laid out, to meet on a day and at a place certain, which shall not be more than 10 nor less than 5 days from the time of service of the notice, for the purpose of aiding in the striking of a jury to determine the necessity of the road. [MCL 229.1; MSA 9.281.]
At the time and place for selecting a jury the township supervisor shall direct a disinterested person to record the names of 12 disinterested property owners, from which the owner or occupant of the land to be crossed by the road and the applicant for the road shall strike 3 names each. The balance remaining on the list shall form the jury. [MCL 229.2; MSA 9.282.]
Such freeholders, when met, shall be sworn by the commissioner well and truly to examine in regard to the necessity of such road, and in case they shall decide that such road is necessary, to justly and impartially appraise the damages of the owner or owners, or occupant of the land, by reason of laying out such road. [MCL 229.3; MSA 9.283.]
The private roads act unambiguously and unmistakably authorizes, by state process, a private condemnation and taking. See Ayres v Richards, 38 Mich 214, 216 (1878). Indeed, the very language of the statute makes it clear that the only kind of taking contemplated is one in which a private party seeks to compel another to surrender ownership of land, albeit for a price (“damages”) to be determined by a jury of freeholders. Consequently, the question posed by plaintiffs’ invocation of the private roads act to acquire a portion of L & l’s land is whether the act offends Const 1963, art 10, § 2, which prohibits the taking of property other than for a “public use” and with just compensation. We believe that it does.
Const 1963, art 10, § 2 provides:
Private property shall not be taken for public use without just compensation therefore being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.
We do not think that the language of art 10, § 2 can be remotely read or understood as permitting a taking for a private use. Thus, a simple comparison of the text of art 10, § 2 and the language of the private roads act makes it patent that the 1963 constitution’s flat prohibition of taking other than for a “public use” is manifestly at odds with the private taking that is explicitly authorized by the act. Our constitution and the act simply embrace antipodal objectives. Indeed, in its Address to the People, the Constitutional Convention advised Michigan voters that art 10, § 2 of our then-proposed constitution was “a revision of Sec. 1, Article XIII of the [1908] Constitution which, in the judgment of the convention, is sufficient to safeguard against taking of property for private use." 2 Official Record, Constitutional Convention 1961, p 3403 (emphasis added). Consequently, when the people of Michigan voted to ratify the 1963 Constitution, the unambiguous language of the proposed constitution, as well as the construction of that text provided by the Constitutional Convention, made it ineluctably plain that art 10, § 2 precluded the taking of property for private use.
Apart from the unambiguous purpose of the constitutional text, we also find important to our analysis the fact that when the private roads act was originally enacted over one hundred years ago, Const 1850, art 18, § 14 explicitly authorized the taking of private property to open a private road. Similar language was carried over into the successor constitution. See Const 1908, art 13, § 3. However, this language was removed from the 1963 constitution, leaving only the art 10, § 2 prohibition against the taking of private property except for a “public use” and upon payment of just compensation. This fundamental change in the constitutional text thus provides additional weight to our reading of art 10, § 2, as well as our conclusion that the private roads act is unconstitutional.
1. POLETOWN NEIGHBORHOOD COUNCIL v DETROIT: “PUBLIC USE”
Because the act cannot pass constitutional muster unless it can be interpreted as authorizing a taking for a “public use,” it is necessary to consider the meaning of that term. Our Supreme Court provided an authoritative construction of Const 1963, art 10, § 2 in Poletown Neighborhood Council v Detroit, 410 Mich 616; 304 NW2d 455 (1981). In that case, the Detroit Economic Development Corporation sought to use the power of eminent domain granted to it by the Economic Development Corporations Act, MCL 125.1601 et seq.; MSA 5.3520(1) et seq., to acquire a tract of land that would then be conveyed to General Motors Coiporation as a site for the construction of an automobile assembly plant.
In addressing the constitutionality of the proposed condemnation, the Supreme Court explained the requirement found in Const 1963, art 10, § 2 that the taking of private property be for a “public purpose”:
There is no dispute about the law. All agree that condemnation for a public use or purpose is permitted. All agree that condemnation for a private use or purpose is forbidden. Similarly, condemnation for a private use cannot be authorized whatever its incidental public benefit and condemnation for a public purpose cannot be forbidden whatever the incidental private gain. The heart of this dispute is whether the proposed condemnation is for the primary benefit of the public or the private user. [Poletown, supra at 632 (emphasis added).]
The Court determined that the proposed condemnation at issue withstood constitutional scrutiny because the public would receive the primary benefit:
In the instant case the benefit to be received by the municipality invoking the power of eminent domain is a clear and significant one and is sufficient to satisfy this Court that such a project was an intended and a legitimate object of the Legislature when it allowed municipalities to exercise condemnation powers even though a private party will also, ultimately, receive a benefit as an incident thereto.
The power of eminent domain is to be used in this instance primarily to accomplish the essential public purposes of alleviating unemployment and revitalizing the economic base of the community. The benefit to a private interest is merely incidental.
Our determination that this project falls within the public purpose, as stated by the Legislature, does not mean that every condemnation proposed by an economic development corporation will meet with similar acceptance simply because it may provide some jobs or add to the industrial or commercial base. If the public benefit was not so clear and significant, we would hesitate to sanction approval of such a project. The power of eminent domain is restricted to furthering public uses and purposes and is not to be exercised without substantial proof that the public is primarily to be benefited. [Id. at 634-635 (emphasis added).]
In our opinion, Poletown holds beyond question that a taking is constitutional only if there is substantial proof that the public is primarily to be benefited by it. By contrast, the language of the private roads act purports to address no public purpose; instead, it addresses only private interests. Because the act was enacted at a time when our constitution then explicitly authorized the taking of property for the purpose of creating a private road, it is not surprising that the act is so framed. However, given the clear and unambiguous language of Const 1963, art 10, § 2, we believe that the act is unconstitutional on its face.
2. CONSTRUCTION OF THE PRIVATE ROADS ACT BY THE COURT OF APPEALS
Our Court has, on two occasions, considered the constitutionality of the private roads act under our 1963 constitution. In White Pine Hunting Club v Schalkowski, 65 Mich App 147, 149; 237 NW2d 223 (1975), a panel of this Court, finding “no ‘public use’ to support the statute,” concluded that it was unconstitutional. In Bieker, a later panel of this Court rejected the White Pine Court’s analysis as “flawed.” The Bieker panel correctly recognized that, because the private roads act unquestionably involves a state-sanctioned condemnation, any taking accomplished under the act must, pursuant to Const 1963, art 10, § 2, be for a “public purpose”:
We must disagree with the dissenter in White Pine, and conclude that the statute is subject to the requirement found in Const 1963, art 10, § 2 that the taking of private property be for a public purpose. As our Supreme Court has said, “condemnation for a private use or purpose is forbidden.” Poletown Neighborhood Council v Detroit, 410 Mich 616, 632; 304 NW2d 465 (1981); see also Shizas v Detroit, 333 Mich 44, 50; 52 NW2d 589 (1952). [Bieker, supra at 632.]
Notwithstanding, the Bieker panel, ironically relying on Poletown, found that the private roads act was constitutional because the statute itself implicitly embodied a “public use”:
The statute provides for the laying out of private property only where necessary. MCL 229.4; MSA 9.284. “The taking is only justifiable where no other way of access to the lands of the applicant can be found.” Ayres, supra. In such a situation, providing access to land is beneficial to the community as a whole. Without such access, the land has no value either to its owner or to the community. When the landlocked property is made accessible, its value can be fully realized. The economic activity resulting from the land’s use benefits the community as a whole and the increase in the land’s value broadens the community’s tax base. In Poletown, supra, pp 632-635, our Supreme Court approved the condemnation of private property to be conveyed to a private manufacturer because the Court found a public use in advancing the public’s interest in alleviating unemployment and revitalizing the economic base of the community. [Id. at 632-633.]
Thus, the Bieker panel concluded that the statute is constitutional to the extent that it “authorizes the laying out of private roads only where necessary to provide access to property that would otherwise be inaccessible.” Id. at 633.
With all due respect to the Bieker panel’s conclusion, we cannot agree that the taking of a portion of one individual’s private property in order to open a road for the private use and benefit of another can be characterized as one inherently imbued with a primary public purpose. In Poletown, the Supreme Court found that the transfer of private property to General Motors provided a “clear and significant” benefit to the public, the alleviation and prevention of conditions of unemployment, and that the benefit to General Motors was merely incidental. Poletown, supra at 634. Contrariwise, we conclude and would hold that the primary benefit under the private roads act inures to the landlocked private landowner seeking to open a private road on the property of another, and that any benefit to the public at large is purely incidental and far too attenuated to support a constitutional taking of private property.
Notwithstanding the decision of the Bieker panel, we submit that there is nothing in the private roads act to indicate that an authorized taking under it in any way serves a “public purpose.” Indeed, a jury impaneled under the act is obligated only to decide whether the petitioner has shown that the road is necessary and the amount of damages to which the landowner whose property has been expropriated is entitled. See MCL 229.2, 229.4; MSA 9.282, 9.284. If we take, as we must, the Supreme Court at its word in Poletown — that a condemnation can be justified only if its primary purpose is for the benefit of the public — the Bieker panel’s purported rationale simply cannot support the constitutionality of a statute that, on its face, is solely directed to conferring a benefit on private interests. If, as the Bieker panel found, allowing an applicant to fully realize the value of his land is a sufficient public benefit to support the taking of another individual’s private property under the act, then it appears to us that almost any taking of private property could be constitutionally justified as furthering some tenuous “public purpose.”
While we are mindful of the presumption of validity accorded to acts of the Legislature, Michigan Soft Drink Ass’n v Dep’t of Treasury, 206 Mich App 392, 401; 522 NW2d 643 (1994), we are unable to conclude that the private roads act squares with the constitutional guarantees embodied in Const 1963, art 10, § 2. The rationale of Bieker is precisely the kind that we believe the Supreme Court expressly foreclosed in Poletown. Nevertheless, because Bieker is controlling precedent with respect to this issue, we are bound to follow it by the mandate of MCR 7.215(H).
B. DUE PROCESS
The trial court also found the private roads act to be unconstitutional because it does not afford property owners adequate due process. We disagree.
No person may be deprived of life, liberty, or property without due process of law. US Const, Am V; Const 1963, art 1, § 17. Due process generally requires some form of a hearing before deprivation of a property interest. Brandon Twp v Tomkow, 211 Mich App 275, 281-282; 535 NW2d 268 (1995). “ ‘The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.’ ” Dow v Michigan, 396 Mich 192, 204-205; 240 NW2d 450 (1976), quoting Boddie v Connecticut, 401 US 371, 378; 91 S Ct 780; 28 L Ed 2d 113 (1971). Where an important interest is affected, as here, “rudimentary due process” must be afforded. Bundo v Walled Lake, 395 Mich 679, 696; 238 NW2d 154 (1976). According to Bundo, rudimentary procedural due process requires: (1) timely written notice of the proceeding; (2) an opportunity to present witnesses, evidence, and arguments; (3) an impartial decisionmaker; and (4) a written, although relatively informal, statement of findings. Id.
We conclude that the private roads act satisfies rudimentary due process demands. When an application for a private road is made to the township supervisor, the act requires the supervisor to provide “notice in writing to the owner or occupant of the land over which the road is proposed to be laid out.” MCL 229.1; MBA 9.281. Moreover, a jury of six disinterested property owners determines the necessity of the proposed road and appraises the damages of the owner or occupant of the land. MCL 229.2, 229.3; MSA 9.282, 9.283. The business of the jury is to be conducted at a public meeting held in compliance with the Open Meetings Act, MCL 15.261 et seq.-, MSA 4.1800(11) et seq., and any party in interest may appeal the determination of the jury to the circuit court of the county. MCL 229.11; MSA 9.291. While the act does not explicitly call for the presentation of witnesses and evidence, we conclude that the act implicitly calls for such a procedure by requiring the convening of a jury and the appearance of the property owners to determine the necessity of the road. Finally, the act provides for an informal statement of findings: “If the jury determines that the road applied for is necessary, they shall make and subscribe a certificate of the determination and their appraisal of the damages, and shall deliver the same to the township supervisor . . . .” MCL 229.4; MSA 9.294. The act does not deprive the property owner or occupant of due process.
HI. PLAINTIFFS’ PROPOSED USE OF THE REQUESTED ROAD
Defendant argues, and the trial court agreed, that, even if the private roads act is constitutional, plaintiffs’ proposed use of the requested road is not permitted under the act. We believe that this question is premature at this time because plaintiffs’ necessity for a private road over h & h’s property, if any, has yet to be determined.
IV. WRIT OF MANDAMUS
Given that we are obligated to declare the constitutionality of the private roads act, the last question to be decided in this appeal is whether the trial court erred in denying plaintiffs’ request for mandamus. We review the trial court’s decision for an abuse of discretion. Keaton v Village of Beverly Hills, 202 Mich App 681, 683; 509 NW2d 544 (1993). Issuance of a writ of mandamus is proper where (1) the plaintiff has a clear legal right to performance of the specific duty sought to be compelled, (2) the defendant has a clear legal duty to perform it, (3) the act is ministerial, and (4) the plaintiff is without other adequate legal or equitable remedy. Tuscola Co Abstract Co, Inc v Tuscola Co Register of Deeds, 206 Mich App 508, 510-511; 522 NW2d 686 (1994).
Plaintiffs argue that defendant has a clear legal duty pursuant to the private roads act to commence jury proceedings to determine the necessity of the road requested by plaintiffs. We agree. Although plaintiffs’ right to a private road is not automatic, the act leaves no room for denial of the application. The act requires that the determination of necessity and just compensation be made by a jury, leaving only a ministerial role for the township supervisor who is to convene and instruct the jury in the manner requested. Thus, defendant’s duties under the act are precisely outlined, and the act leaves nothing to the exercise of his discretion or judgment. Finally, there is no legal or equitable remedy that would achieve the same result. Consequently, the trial court abused its discretion in failing to grant a writ of mandamus.
For the reasons stated, we reverse the judgment of the trial court and remand this case to the trial court for the issuance of a writ of mandamus ordering defendant to convene a jury under the act.
Reversed and remanded. We do not retain jurisdiction.
In a dispute unrelated to this appeal, plaintiffs and L&L contested whether plaintiffs owned an easement over l&l’s land. The resolution of this ancillary dispute may well be outcome determinative of the dispute in this case if it is determined that plaintiffs have a valid easement over l&l’s land such that plaintiffs may use that easement to gain access to their property. However, that dispute was not resolved before the time this case was submitted for decision, and we have no information concerning its conclusion, if any.
The Court in Bieker attempted to finesse the problem occasioned by the deliberate omission of the language authorizing the taking of private roads, noting that the framers of the 1963 constitution apparently did not intend “to remove from the Legislature the power to provide for private roads in the case of necessity.” Bieker, supra at 631, quoting in support of its conclusion a colloquy found in 2 Official Record, Constitutional Convention 1961, p 2846. To the extent that the Bieker panel invites us to look beyond the unambiguous and explicit text of the 1963 constitution, a proposition with which we strongly disagree, see Bd of State Canvassers, supra, it is clear that it is the intent of the people who adopted the proposed constitution that is controlling, and not the intent manifested in the internal deliberations of the framers. As the Supreme Court explained in Regents of the Univ of Michigan v Michigan, 395 Mich 52, 59-60; 235 NW2d 1 (1975):
The debates must be placed in perspective. They are individual expressions of concepts as the speakers perceive them (or make an effort to explain them). Although they are sometimes illuminating, affording a sense of direction, they are not decisive as to the intent of the general convention (or of the people) in adopting the measures.
Therefore, we will turn to the committee debates only in the absence of guidance in the constitutional language as well as in the “Address to the People,” or when we find in the debates a recurring thread of explanation binding together the whole of a constitutional concept. The reliability of the “Address to the People” (now appearing textually as “Convention Comments”) lies in the fact that it was approved by the general convention on August 1, 1962 as an explanation of the proposed constitution. The “Address” also was widely disseminated prior to adoption of the constitution by vote of the people.
Because the text of Const 1963, art 10, § 2 admits of no ambiguity that takings for a private use are constitutionally prohibited, there can be no justification for ignoring that text and looking to the deliberations of the members of the Constitutional Convention for guidance as to the meaning of that text. This principle of constitutional construction is particularly appropriate when, as here, the Constitutional Convention’s Address to the People reaffirmed that the text was intended to mean exactly what it so obviously says.
Whatever the merit of that proposition, the Poletown Court at least had the benefit of a statute in which the Legislature spelled out the public purpose to be served by a taking accomplished under its provisions. See MCL 125.1602; MSA 5.3520(2). No such statement of intended public purpose can be found in the private roads act. Indeed, in the very text from the Poletown decision quoted in the body of this opinion, the Supreme Court stated that even takings pursued under the Economic Development Corporations Act could not be constitutionally sanctioned without proof that the public benefit was “clear and significant.” Poletown, supra at 634- 635. Poletown demonstrates how stringent must be the constitutional inquiry when a taking of private property is .involved. Contrary to the Bieker panel’s conclusory determination that the private roads act creates an inherent public use by increasing the utility and value of landlocked property, Poletown appears clearly to preclude this form of superficial justification for a taking.
In their claim for relief, plaintiffs request this Court to assign this matter to a different trial judge on remand and to order that defendant be disqualified from conducting the proceedings required by the act. However, we do not believe that such extraordinary relief is warranted. | [
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Boyle, J.
As a result of plaintiffs’ failure to perfect their security interest in the lessee’s personal property, defendant guarantor contends that he was discharged from any liability under two personal guaranty agreements. The circuit court granted defendant’s motion for summary disposition and the Court of Appeals affirmed. We granted leave to appeal to determine whether a security interest in personal property given as collateral to secure payment under a lease agreement for which defendant executed a personal guaranty was subject to ucc filing requirements and, if so, whether the failure on the part of the plaintiffs to perfect their security interest in the personal property under state law constitutes impairment of the collateral so as to discharge the obligation of the guarantor and release him from further liability upon default of the lessee. We hold that the lien granted in the underlying lease agreement falls within the coverage of article 9 of the ucc and that § 9207 does not discharge the defendant’s obligation under the guaranty agreements. We affirm in part and reverse in part the decision of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.
i
The relevant facts of this case as set forth by the Court of Appeals are:
In 1991, plaintiffs and the predecessors of Market Place Media, Inc. (mpm), entered into a series of commercial leases for office space. In these leases, the predecessors granted plaintiffs a landlord’s lien covering personal property located on the leased premises. As an inducement for these leases, Bonthuis, an officer for the predecessors, executed two personal guaranty agreements promising to secure the predecessors’ performance under the leases. However, plaintiffs failed to do anything to perfect their lien on the personal property in question. Additionally, MPM terminated Bonthuis’ employment soon after its purchase of the business.
In 1993, MPM failed to pay rent due under the leases. As a result, plaintiffs filed suit in the district court against MPM and Bonthuis, and they received a judgment of possession and a money judgment for $9,354.32 against mpm and Bonthuis. Subsequently, plaintiffs filed this case against mpm and Bonthuis for additional damages. However, mpm and Bonthuis filed bankruptcy petitions seeking protection from their creditors under Chapter 7 of the Bankruptcy Code. As a result, the trial court stayed this case pending the resolution of the bankruptcies.
The bankruptcy trustee sold mpm’s personal property for $34,929.50. Plaintiffs filed a claim against the bankruptcy estate for $22,758.93, claiming secured status pursuant to the landlord’s lien in the lease and the district court judgment. Notwithstanding this claim, the bankruptcy court subordinated plaintiffs’ claim to the interest of mpm’s bankruptcy trustee. Because of this subordination, plaintiffs received no proceeds from the sale of mpm’s personal property by the bankruptcy trustee. After the rejection of plaintiffs’ claim in the bankruptcy court, Bonthuis withdrew his bankruptcy petition, and the trial court lifted the stay that had suspended the proceedings in this case.
Subsequently, Bonthuis moved for summary disposition under MCR 2.116(C)(8) and (10), claiming that plaintiffs’ failure to file a financing statement in accordance with Article 9 of the Uniform Commercial Code, which would have perfected their landlord’s lien, impaired the collateral consisting of mpm’s personal property, and freed Bonthuis from any obligation under his personal guaranties. Plaintiffs argued that their landlord’s lien was exempted from the coverage of Article 9 by MCL 440.9104(b); MSA 19.9104(b), so Bonthuis was not protected under Article 9 from plaintiffs’ claims. Alternatively, plaintiffs argued that even if their landlord’s lien fell within the coverage of Article 9, MCL 440.9207; MSA 19.9207 did not free Bonthuis from his obligations under the guaranty agreements. The trial court rejected plaintiffs’ arguments and granted summary disposition in Bonthuis’ favor.
It is from the Court of Appeals affirmance of the trial court’s grant of defendant’s motion for summary disposition that the plaintiffs now appeal.
n
We address first plaintiffs’ claim that the lien granted in the underlying lease agreement was a landlord’s lien and thus not subject to the provisions of the ucc under MCL 440.9104(b); MSA 19.9104(b). A landlord’s lien is the right of a landlord to levy upon the goods of a tenant in satisfaction of unpaid rents or property damage. Although landlords’ liens may arise by statute, common law, or contract, commonly these liens take the form of statutory liens that give the lessor the status of a preferred creditor with regard to the lessee’s property. It is without dispute that subsection 9104(b) excludes landlords’ liens from article 9 coverage. What is at issue in this appeal is whether subsection 9104(b) contemplates consensual security interests embodied in a contract, or whether it excludes only those landlords’ liens that arise by operation of law or by common law. Arguing that Michigan recognizes neither statutory nor common-law landlords’ liens, plaintiffs claim that the clear intent of the Legislature was to apply the exclusion of subsection 9104(b) to contractual landlord’s liens such as the one at issue. The standard of review is de novo with regard to questions of law. People v Carpentier, 446 Mich 19; 521 NW2d 195 (1994).
A
Article 9 of the UCC provides a comprehensive scheme by which security interests in personal property and fixtures are regulated. All transactions intended to create a security interest in personal property and fixtures are contemplated under this article. Generally, security interests that are not consensual but that arise by operation of law are excluded under this article. Substance predominates over form in determining article 9 applicability. Thus, the determinative factor is not the form of the transaction as much as it is the intent of the parties in entering into the transaction.
B
The scope of article 9 of the ucc as embodied in § 9102 provides in part:
(1) Except as otherwise provided in section 9104 on excluded transactions, this article applies;
(a) To any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper or accounts; and also
(b) To any sale of accounts or chattel paper.
(2) This article applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor’s lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract, and lease or consignment intended as security. This article does not apply to statutory liens except as provided in section 9310.
Despite the broad scope of § 9102, plaintiffs argue that article 9 is inapplicable to the lien in question because of an express provision in subsection 9104(b) excluding landlord’s liens from article 9 coverage.
While a literal reading of subsection 9104(b) supports plaintiffs’ argument, we cannot ignore the clear intent of article 9, which is to bring all consensual transactions within the scope of ucc coverage. Paragraph 12 of the underlying lease agreement between plaintiffs and the lessees provided:
Lessor’s Lien. In the event Lessee shall fail to pay the rent provided for herein or other wise default in the performance of Lessee’s obligations hereunder, Lessor shall have a lien on the property of Lessee located on the Premises to secure the payment or performance due Lessor.
The ucc “is to be liberally construed and applied to promote its underlying purposes and policies.” MCL 440.1102; MSA 19.1102. In construing the act in accordance with its purposes, the text of each section should be read in the light of the purpose and policy of the rule or principle in question. There is no dispute that the lien in question was a consensual contractual hen. To effectuate the intent of § 9102 to bring all consensual security interests in personal property and fixtures under article 9 coverage, it follows that article 9 applies to the hen in question. Indeed, comment 1 to § 9102 provides further support for this position by stating: “Section 9-104 excludes certain transactions where the security interest . . . arises under statute or common law by reason of status and not by consent of the parties.”
Courts in other jurisdictions addressing this same question have reached similar results. See, e.g., In re King Furniture City, Inc, 240 F Supp 453 (ED Ark, 1965); In re Leckie Freeburn Coal Co, 405 F2d 1043 (CA 6, 1969); Dunham’s Music House, Inc v Asheville Theatres, Inc, 10 NC App 242, 245; 178 SE2d 124 (1970); United States v Globe Corp, 113 Ariz 44, 50; 546 P2d 11 (1976); Todsen v Runge, 211 Neb 226, 232-233; 318 NW2d 88 (1982). Plaintiffs argue that most of, if not all, these cases are distinguishable insofar as they involve states that enacted statutory landlords’ liens or recognize common-law landlords’ liens. However, plaintiffs’ argument does not alter our view that article 9 encompasses the hen in question, nor does it persuade us that the act should not be construed in accordance with its underlying purposes and policies. Accordingly, we hold that the UCC applies to the lien in question.
in
Having concluded that plaintiffs’ consensual hen in personal property falls within the scope of article 9 of the ucc, it follows that plaintiffs held a security interest in the personal property of the lessees that they had not perfected. As guarantor of that secured interest, defendant contends that the plaintiffs’ negligence in failing to perfect their secured interest released him from obhgation under the guaranty agreements pursuant to § 9207. We disagree.
A
Defendant asserts that as a guarantor of the secured interest in the commercial lease agreement between plaintiffs and lessees, he is a “debtor” for purposes of § 9105. As such, defendant claims he is entitled to all the protections afforded a debtor under the UCC, including the duty of a creditor to protect and preserve the collateral securing the underlying debt. In effect, as guarantor, defendant contends that he steps into the debtor’s shoes and gains the right to assert article 9 defenses. Defendant relies on § 9207 and on the Court of Appeals decision in Nat'l Bank of Detroit v Alford, 65 Mich App 634; 237 NW2d 592 (1975), to support his position that his liability under the personal guaranty agreements was discharged as a result of plaintiffs’ negligence in failing to perfect their secured interest.
B
The UCC recognizes a secured party’s duty to preserve and protect collateral pursuant to § 9207. Section 9207 provides in part:
(1) A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the case of an instrument or chattel paper reasonable care includes taking steps to preserve rights against prior parties unless otherwise agreed.
* * *
(3) A secured party is liable for any loss caused by his failure to meet any obligation imposed by the preceding subsections but does not lose his security interest. [MCL 440.9207; MSA 19.9207,.]
In Nat’l Bank of Detroit, supra, the defendant guarantors were relieved of any obligation under a guaranty agreement because of the plaintiffs failure to promptly record a chattel mortgage on an airplane. Rejecting plaintiffs claim under MCL 440.3606; MSA 19.3606, the Court concluded that § 9207 provided an additional, independent duty on the part of the creditor to promptly record the chattel mortgage. Failure on the part of the creditor to perfect its interest resulted in the unjustifiable impairment of the collateral on which the guarantors had a right to rely and spoiled the guarantors’ right of subrogation. Accordingly, defendant guarantors were discharged from any liability under the guaranty agreement.
A determination whether § 9207 discharges defendant’s guaranty here requires careful consideration of the scope and definitions of article 9. Subsection 9207(1) provides that when the collateral is an instrument or chattel paper, “reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.” MCL 440.9207(1); MSA 19.9207(1). Reasonable care in this context might mean that the secured party in possession of instruments or chattel paper may be required to “file a financing statement, provide notice of default, and inform accommodation parties of a failure on the part of the maker of a note to make payment.”
Chattel paper, as defined by subsection 9105(l)(b), is “a writing or writings which evidence both a monetary obligation and a security interest in or a lease of specific goods . . . .” However, chattel paper as defined under subsection 9105(l)(b) must not be confused with chattel paper that is itself collateral. Collateral is “the property subject to a security interest, and includes . . . chattel paper which [has] been sold.” MCL 440.9105(l)(c); MSA 19.9105(l)(c). A security interest in chattel paper is an interest in the paper itself, not the goods represented by the paper.
The Court of Appeals erroneously assumed that any document that fits within the definition of “chattel paper” triggers article 9’s provisions regarding chattel paper. However, article 9 by its terms applies only when documents that otherwise fall within the definition of chattel paper are used by the creditor as security for further financing or are otherwise sold or transferred. MCL 440.9102; MSA 19.9102. Here, no assertions were made that indicate that the lease and guaranty agreements were sold, pledged, or otherwise assigned as security in any transaction. Thus, while these documents may fit within § 9105’s definition of “chattel paper,” they are not subject to article 9’s provisions regarding security interests in chattel paper until they are used by the creditor as collateral or are otherwise transferred. MCL 440.9102; MSA 19.9102. That is, it is a condition precedent for application of article 9 to chattel paper that the chattel paper be used as collateral or otherwise transferred. This condition precedent was not met here.
Contrary to the defendant’s contention, the lease agreement, coupled with defendant’s guaranties, did not constitute the collateral subject to a security interest. MCL 440.9105(l)(c); MSA 19.9105(l)(c). Rather, the collateral was at all times the personal property of the lessee, and there has been no assertion by the parties or evidence offered that warrants a conclusion that plaintiffs had possession of that property. The Court of Appeals erred in holding that § 9207 could be invoked here to provide a remedy for defendant. Accordingly, we do not believe that summary disposition was properly granted in favor of the defendant under § 9207 of the act.
IV
For the reasons stated, we hold that the lien granted in the underlying lease agreement falls within the coverage of article 9 of the ucc and that § 9207 does not discharge the defendant’s obligation under the guaranty agreements. Accordingly, the decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings.
Mallett, C.J., and Brickley, Cavanagh, Weaver, Kelly, and Taylor, JJ., concurred with Boyle, J.
218 Mich App 142, 143-144; 553 NW2d 366 (1996).
Barron’s Law Dictionary (3d ed), p 278.
218 Mich App 143, n 1.
Barron’s, n 2 supra.
Subsection 9104(b) provides in part:
This article does not apply:
(b) To a landlord’s lien ....
Defendant argues that Michigan has recognized a common-law landlord’s lien in SS Kresge Co v Twelve Seventy-five Woodward Ave Corp, 270 Mich 218, 221; 258 NW 252 (1935). While that case did recognize a form of such a lien, journeying back to Treackle v Coke, 1 Vern 165; 23 Eng Rep 389 (1683) to answer what was a new question in our state, our decision in this case does not require us to determine whether the antiquated remedy provided in Kresge remained viable before the Legislature’s adoption of subsection 9104(b), or, for that matter, whether it remains viable today.
Brown v Yousif, 445 Mich 222, 231; 517 NW2d 727 (1994) (the Legislature intended article 9 to be of general applicability, covering all forms of security interests in personal property, regardless of its form). See also MCL 440.9101; MSA 19.9101, comment; MCL 440.9102; MSA 19.9102, comment; White & Summers, Uniform Commercial Code (3d ed), § 21-2, p 926.
Although lacking the force of law, the official comments appended to each section of the ucc are useful aids to interpretation and construction. Szabo v Vinton Motors, Inc, 630 F2d 1, 4 (CA 1, 1980); White & Summers, supra, § 4, p 12.
MCL 440.9104; MSA 19.9104. See also White & Summers, n 7 supra, § 21-2, p 926.
MCL 440.9102; MSA 19.9102, MCL 440.9104; MSA 19.9104, comment. “If Article Nine otherwise applies, the parties cannot render it inapplicable merely by casting their arrangement in the language of some particular pre-Code security device (or in the language of some other type of transaction such as a lease).” White & Summers, n 7 supra, § 21-1, pp 925-926.
“[T]he principal test whether a transaction comes under this Article is: is the transaction intended to have effect as security?” MCL 440.9102; MSA 19.9102, comment 1.
See n 5.
Subsection 1102(2) provides that the underlying purposes of the act are:
(a) to simplify, clarify and modernize the law governing commercial transactions;
(b) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties;
(c) to make uniform the law among the various jurisdictions.
The ucc should be construed narrowly or broadly, as the case may be, in conformity with the purposes and policies involved. MCL 440.1102; MSA 19.1102, comment 1.
MCL 440.1102; MSA 19.1102, comment 1.
See White & Summers, n 7 supra, § 21-7, p 951. “Article Nine does not apply to landlord’s liens arising under the statute or case law. However, several cases have arisen in which the parties have, in effect, sought to create landlord liens by contract. Here, the courts hold that Article Nine applies, and properly so.” Id.
Moreover, plaintiffs have failed to cite, and we have not found, even one case that expressly or impliedly supports plaintiffs’ interpretation of subsection 9104(b).
We note that plaintiffs filed a proof of claim with the United States Bankruptcy Court, seeking secured status in the amount of $22,758.93 on the basis of their lien in the lease agreement and their district court judgment of possession and money judgment. Plaintiffs represented to the bankruptcy court that their interest was a secured interest in part because of the lien in the lease and, after receiving an unfavorable result in that court, took the position that the interest did not fall under the ucc.
It is undisputed that plaintiffs did not perfect their security interest in the personal property in question.
Defendant contends that the definition of debtor in MCL 440.9105(l)(d); MSA 19.9105(l)(d) encompasses guarantors for the reason that a guarantor owes payment on the debt. MCL 440.9105(l)(d); MSA 19.9105(l)(d) provides in part:
“Debtor” means the person who owes payment or other performance of the obligation secured, whether or not he or she owns or has rights in the collateral .... Where the debtor and the owner of the collateral are not the same person, the term “debtor” means the owner of the collateral in any provision of the article dealing with the collateral, the obligor in any provision dealing with the obligation, and may include both where the context so requires.
There is ample support for the proposition that an unjustifiable impairment of collateral includes a failure to perfect a security interest if such failure results in the loss of a surety’s or guarantor’s right of subrogation. See First Bank & Trust Co v Post, 10 Ill App 3d 127; 293 NE2d 907 (1973); Executive Bank of Fort Lauderdale, Florida v Tighe, 66 AD2d 70; 411 NYS2d 939 (1978), modified on other grounds 54 NY2d 330; 445 NYS2d 425; 429 NE2d 1054 (1981); Van Balen v Peoples Bank & Trust, 3 Ark App 243; 626 SW2d 205 (1981); North Bank v Circle Investment Co, 104 Ill App 3d 363; 432 NE2d 1004 (1982); Rempa v LaPorte Production Credit Ass’n, 444 NE2d 308 (Ind App, 1983); Port Distributing Corp v Pflaumer, 880 F Supp 204 (SD NY, 1995), aff’d 70 F3d 8 (CA 2, 1995). Each of these cases, however, relies not on § 9-207, but on § 3-606. Section 3-606 acts to discharge a surety when, without the creditor’s consent, the creditor “unjustifiably impairs any collateral for the instrument . . . .” In 1993, MCL 440.3606; MSA 19.3606 was repealed by the Legislature.
Hawkland, Lord & Lewis, Uniform Commercial Code, § 9-207:01, p 1.
See Reiley, Guidebook to Security Interests in Personal Property (2d ed), § 2.05, p 2-8 (chattel paper in the abstract must not be confused with chattel paper that is itself the collateral).
MCL 440.9105; MSA 19.9105, comment states:
To secure his own financing a secured party may wish to borrow against or sell the security agreement itself along with his interest in the collateral which he has received from his debtor. Since the refinancing of paper secured by specific goods presents some problems of its own, the term “chattel paper” is used to describe this kind of collateral.
A typical chattel paper transaction may be described as follows:
A dealer sells a tractor to a farmer on conditional sales contract. The conditional sales contract is a “security agreement,” the farmer is the “debtor,” the dealer is the “secured party” and the tractor is the type of “collateral” defined in Section 9-109 as “equipment.” But now the dealer transfers the contract to his bank, either by outright sale or to secure a loan. Since the conditional sales contract is a security agreement relating to specific equipment, the conditional sales contract is now the type of collateral called “chattel paper.” [MCL 440.9105; MSA 19.9105, comment.]
See also Jackson, Embodiment of rights in goods and the concept of chattel paper, 50 U Chi L R 1051, 1053 (1983) (chattel paper is not relevant for any article 9 purpose until it is used as collateral in a secured transaction).
Had plaintiffs had possession of the personal property of the lessee they would have held a perfected security interest in the property, MCL 440.9302(l)(a); MSA 19.9302(l)(a), MCL 440.9305; MSA 19.9305, and defendant’s argument that his liability under the personal guaranty agreements was discharged as a result of plaintiffs’ failure to perfect their secured interest would necessarily fail.
We do not foreclose defendant’s ability to claim on remand that, under the common law, impairment of collateral discharges a guaranty. Because this issue was not addressed by either the trial court or the Court of Appeals, we refrain from reaching this issue. | [
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Memorandum Opinion. The issue presented in this case concerns the proper disposition of a medical-malpractice lawsuit after a court determines that the plaintiffs affidavit of merit does not meet the requirements of MCL 600.291.2d. The Court of Appeals held that, because plaintiffs’ affidavit of merit was determined to be defective, plaintiffs’ claim must be dismissed with prejudice. Kirkaldy v Rim (On Remand), 266 Mich App 626, 636-637; 702 NW2d 686 (2005). However, the majority of the panel indicated that it would not reach that result if it were not bound by Mouradian v Goldberg, 256 Mich App 566; 664 NW2d 805 (2003), and Geralds v Munson Healthcare, 259 Mich App 225; 673 NW2d 792 (2003). This Court scheduled oral argument on plaintiffs’ application for leave to appeal. 477 Mich 1063 (2007). In lieu of granting leave to appeal, we reverse the Court of Appeals and overrule Geralds, supra; Mouradian, supra; and their progeny. MCR 7.302(G)(1).
In Geralds and Mouradian, the Court of Appeals purported to rely on this Court’s opinion in Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000), to hold that filing a defective affidavit of merit is the functional equivalent of failing to file an affidavit of merit for the purpose of tolling the period of limitations. Therefore, the Court held that a defective affidavit of merit does not toll the period of limitations under MCL 600.5856. Because the issue presented in Scarsella is distinct from the issues presented in Mouradian and Geralds, the Court of Appeals erred in extending Scarsella’s holding to these cases.
Scarsella concerned the tolling effect of a medical-malpractice complaint filed without an affidavit of merit. This Court held that filing a medical-malpractice complaint without an affidavit of merit “is ineffective, and does not work a tolling of the applicable period of limitation.” Id. at 553. However, in the very next sentence, this Court noted that “[t]his holding does not extend to a situation in which a court subsequently determines that a timely filed affidavit is inadequate or defective.” Id. In a footnote to that sentence, this Court further stated that “[w]e do not decide today how well the affidavit must be framed. Whether a timely filed affidavit that is grossly nonconforming to the statute tolls the statute is a question we save for later decisional development.” Id. at 553 n 7 (emphasis in Scarsella).
Mouradian was the first attempt by the Court of Appeals at that decisional development. The Court held that the affidavit of merit was “grossly nonconforming” because it did not contain all the statutorily required statements. Because the affidavit was deemed “grossly nonconforming,” it was “insufficient to constitute an affidavit of merit within the meaning of the statute . ...” Mouradian, supra at 574. The Court went on to hold that “as a matter of law, plaintiffs’ complaint against defendants for the second surgery was not commenced because of their failure to file an affidavit of merit before the period of limitations expired ....” Id. Thus, under Mouradian, filing a “grossly nonconforming” affidavit of merit, similar to failing to file any affidavit, does not toll the period of limitations under MCL 600.5856(a).
In Geralds, the Court of Appeals extended the Mouradian rule beyond a grossly nonconforming affidavit to any nonconforming affidavit. The Geralds panel held that
whether the adjective used is “defective” or “grossly nonconforming” or “inadequate,” in the case at bar, plaintiff s affidavit did not meet the standards contained in MCL 600.2912d(1).... [P]laintiff s affidavit was defective and did not constitute an effective affidavit for the purpose of MCL 600.2912d(1) and, therefore, plaintiff filed a complaint without an affidavit of merit sufficient to commence a medical malpractice action. [Geralds, supra at 240.]
Although bound by Geralds, the panel in the present case criticized it as “especially harsh,” inconsistent with Scarsella, and inconsistent with MCL 600.5856(a). Kirkaldy (On Remand), supra at 635-636.
We agree that Geralds and Mouradian are inconsistent with Scarsella and MCL 600.5856(a). Under MCL 600.5856(a) and MCL 600.2912d, the period of limitations is tolled when a complaint and affidavit of merit are filed and served on the defendant. Scarsella, supra at 549. In this case, as in Geralds and Mouradian, plaintiff filed and served a complaint and affidavit of merit. Thus, the period of limitations was tolled on that date. Recently, this Court held that “when an affidavit is filed, it is presumed valid. It is only in subsequent judicial proceedings that the presumption can be rebutted.” Saffian v Simmons, 477 Mich 8, 13; 727 NW2d 132 (2007). Therefore, a complaint and affidavit of merit toll the period of limitations until the validity of the affidavit is successfully challenged in “subsequent judicial proceedings.” Only a successful challenge will cause the affidavit to lose its presumption of validity and cause the period of limitations to resume running.
Thus, if the defendant believes that an affidavit is deficient, the defendant must challenge the affidavit. If that challenge is successful, the proper remedy is dismissal without prejudice. Scarsella, supra at 551-552. The plaintiff would then have whatever time remains in the period of limitations within which to file a complaint accompanied by a conforming affidavit of merit.
We reverse the Court of Appeals holding to the contrary and remand to the Wayne Circuit Court for further proceedings consistent with this opinion.
TAYLOR, C.J., and WEAVER, CORRIGAN, YOUNG, and MARKMAN, JJ., concurred.
Plaintiffs here filed an affidavit of merit that the circuit court later determined to he nonconforming with the requirements of MCL 600.2912d.
Judge Kelly concurred in the result only.
The order directed the parties to address three issues: “(1) whether filing a medical malpractice complaint with a defective affidavit of merit can toll the statute of limitations; (2) whether a defect in an affidavit of merit filed with a medical malpractice complaint can be cured without refiling the complaint; and (3) whether Geralds v Munson Healthcare, 259 Mich App 225 (2003), was correctly decided.” 477 Mich 1063 (2007).
When this case was filed, MCL 600.5856 provided in part:
The statutes of limitations or repose are tolled:
(a) At the time the complaint is filed and a copy of the summons and complaint are served on the defendant.
Nothing in this decision calls into question our decision in Scarsella. | [
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CORRIGAN, J.
In this case, we consider whether a Florida resident who was injured in a Florida workplace accident may recover workers’ compensation benefits in Michigan merely because he was hired in Michigan. We conclude that he cannot. The relevant portion of the Michigan Worker’s Disability Compensation Act (WDCA), MCL 418.845, confers jurisdiction on the Bureau of Worker’s Compensation, now the Workers’ Compensation Agency, for out-of-state workplace injuries only if (1) the employee is a resident of Michigan when the injury occurs and (2) the contract of hire was made in Michigan. Accordingly, we reverse the contrary Court of Appeals judgment awarding benefits and overrule Boyd v W G Wade Shows, 443 Mich 515; 505 NW2d 544 (1993), upon which the Court of Appeals relied.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
The parties stipulated the relevant facts:
Plaintiff was hired by defendant on October 4, 1984 to work in Michigan as a maintenance engineer. As of the date of hire, plaintiff was a resident of Detroit, Michigan and defendant employer was a resident employer in Michigan. The Contract of hire was made in Michigan. The Farbman Group continues to be a resident employer and is currently located at 28400 Northwestern Hwy, Southfield, Michigan.
Plaintiff worked for defendant in Michigan from the date of hire until September 1, 1986, when defendant transferred him to Fort Lauderdale, Florida to assume the position of building superintendent. On January 12, 1995, Plaintiff fell from a ladder in the coruse of his employment for defendant in Florida, breaking his left wrist and injuring his left knee. At the time of the injury, he was a resident of Florida. On September 27, 1996, plaintiff reinjured his knee while still working for defendant in Florida. He underwent surgery on November 6,1996 for ACL [anterior cruciate ligament] reconstruction and microfracture ar throplasty. Plaintiff returned to work for defendant with restrictions on December 2, 1996.
He received certain benefits pursuant to Florida’s worker’s compensation law.
Plaintiff continued to work for defendant until September 15, 1997. Since that time, he has worked as a project manager for Rotella, Toroyan, Clinton Group, a Florida Corporation.
Plaintiff continues to have problems with his left knee. There is no wage loss at this time. He has, however, incurred further expenses for treatment and anticipates the need for additional surgery(ies) and future closed period(s) of disability. These claims are not covered under Florida law.
Plaintiff has filed an application for mediation or hearing, claiming medical and wage loss benefits under Michigan law. Defendant disputes jurisdiction. It does not dispute the existence of a work related knee injury.
The Court of Appeals summarized the proceedings before the magistrate and the Workers’ Compensation Appellate Commission (WCAC):
In the proceedings below, defendants contended that pursuant to the plain language of the statute which determines the bureau’s jurisdiction, MCL 418.845, to be entitled to benefits, an injured worker must be a resident of Michigan at the time of the injury. In response, plaintiff contended that pursuant to the interpretation of MCL 418.845, as set forth in Boyd v W G Wade Shows, 443 Mich 515; 505 NW2d 544 (1993), there is no residency requirement for an injured worker, and the bureau has jurisdiction over a petition filed by an injured worker when, as in the instant case, the contract of hire was executed in Michigan and the employer is a resident employer in Michigan. The magistrate agreed with plaintiff and concluded that the bureau had jurisdiction in this matter.
Defendant appealed the decision to the WCAC. The WCAC noted that the Supreme Court’s decision in Boyd reaffirmed an interpretation of the jurisdictional statute originally set forth in Roberts v IXL Glass Corp, 259 Mich 644; 244 NW 188 (1932). The WCAC opined that Roberts contravened the express language of MCL 418.845, but agreed with the magistrate that Boyd and Roberts are binding. Defendants were granted leave to appeal the WCAC’s decision.
The Court of Appeals affirmed the WCAC decision because “pursuant to Roberts and Boyd, the WCAC properly concluded that the bureau has jurisdiction over plaintiffs petition for benefits.” Id. at 5. We granted defendant’s application for leave to appeal, directing the parties to address whether the “proposed overruling of [Boyd] is justified under the standard for applying stare decisis discussed in Robinson v Detroit, 462 Mich 439, 463-468 [613 NW2d 307] (2000).” 2
II. STANDARD OF REVIEW
This case requires us to interpret the language set forth in MCL 418.845. We review de novo questions of statutory construction. People v Perkins, 473 Mich 626, 630; 703 NW2d 448 (2005).
III. ANALYSIS
A. STATUTORY INTERPRETATION
MCL 418.845 is clear and unambiguous. It grants the bureau “jurisdiction over all controversies arising out of injuries suffered outside this state where the injured employee is a resident of this state at the time of injury and the contract of hire was made in this state.” (Emphasis added.) The meaning of this provision is straightforward: where the injury occurs outside Michigan, the bureau has jurisdiction only where (1) the injured employee was a resident of Michigan at the time of the injury and (2) the contract of hire was made in Michigan. Plainly, the use of the conjunctive term “and” reflects that both requirements must be met before the bureau has jurisdiction over an out-of-state injury.
This statute in its initial enactment in 1921 PA 173, was an amendment of the Michigan Workmen’s Compensation Act, 1912 (1st Ex Sess) PA 10. This amendment was enacted after the decision in Crane v Leonard Crossette & Riley, 214 Mich 218; 183 NW 204 (1921). In Crane, this Court held that because participation in the workers’ compensation system was elective, the requirements of the law were considered to be incorporated into the employment contract when an employer chose to participate in the system. Thus, it was irrelevant that the injury did not occur in Michigan.
In 1932, this Court considered the 1921 amendment in Roberts, supra. The Roberts Court stated that the new statutory requirements focusing on residence at the time of the injury “would come with much, if not controlling, force if it were not in conflict with other portions of the statute.” Roberts, supra at 647. That “other portion of the statute” was 1929 CL 8412, which this Court described as fixing “the rights and liabilities of employers and employees.” Id. This Court said that the WDCA covered “ ‘all employees’ regardless of residence or the locus of the accident.” Id. Because of this conflict and the “radical change in the scope and effect,” id. at 648, that the nullification of § 8412 by § 8458 would have, the Court declined to assume that the Legislature had intended such nullification when it enacted § 8458. The Court also opined that its construction was consistent with the “humane purposes” of the WDCA. This meant that § 8412 trumped § 8458, and workers’ compensation coverage would be required without regard to residence or where the injury occurred, despite the language of § 8458.
In 1943 PA 245, the Legislature expressly repealed § 8412. With that action, the Legislature effectively eliminated the central rationale of the Roberts decision, i.e., the Court’s declination to repeal by inference § 8412. The 1943 amendment thus left § 8458 as the unquestioned law. At that juncture, then, the Legislature had addressed the problem that had precluded the Roberts Court from enforcing § 8458, and the Roberts rationale for declining to enforce § 8458 no longer applied.
Indeed, the appellate courts of this state implicitly recognized this point in eight of nine cases where issues concerning § 8458 and its successor statutes arose from 1943 until the Boyd decision in 1992.
In Daniels v Trailer Transport Co, 327 Mich 525, 527, 530; 42 NW2d 828 (1950), this Court implicitly required that the statutory prerequisites of § 8458 be met. In that case, the Court concluded that where a Michigan employer had made an employment contract in Texas, and where the employee was an Illinois resident who suffered an injury in Tennessee, jurisdiction did not exist to bring a workers’ compensation action in Michigan.
Without reconciling Daniels, however, the Court of Appeals in Austin v W Biddle Walker Co, 11 Mich App 311, 313, 318; 161 NW2d 150 (1968), followed what it understood to be the Roberts holding when it concluded that a nonresident of Michigan, hired in Michigan but injured outside Michigan, could collect workers’ compensation benefits in Michigan.
Returning to the Daniels understanding, the Court of Appeals held in Rodwell v Pro Football, Inc, 45 Mich App 408, 416-418; 206 NW2d 773 (1973), that where an employment contract was made in Michigan with a worker who lived in Michigan but the injury occurred out of state, the employee was eligible for Michigan workers’ compensation.
Later, in Crenshaw v Chrysler Corp, 394 Mich 513, 515-516; 232 NW2d 166 (1975), this Court determined that the WDCA did not apply when the contract of hire with a Michigan company was executed in Ohio and the injuries occurred in Ohio. **8
Next, in Jensen v Prudential Ins Co of America, 118 Mich App 501, 503-504; 325 NW2d 469 (1982), the Court of Appeals, after noting that both Michigan residence and a Michigan contract of hire are required, concluded that the WDCA did not apply because the employee was not a Michigan resident and the contract was not entered into in Michigan.
In Shaw v Grunwell-Cashero of Milwaukee, 119 Mich App 758, 761; 327 NW2d 349 (1982), the Court of Appeals found no indication of either a Michigan contract or a Michigan resident employee. Thus, no jurisdiction existed over a Wisconsin employer.
In Wolf v Ethyl Corp, 124 Mich App 368, 370; 335 NW2d 42 (1983), the Court of Appeals stated that jurisdiction required both Michigan residence and a Michigan contract. While the contract of hire between the employee and the employer was made in Michigan, the employee was a resident of Connecticut at the time of the injury. Because the employee was not a Michigan resident, jurisdiction was lacking.
After noting that MCL 418.845 plainly required both conditions, the Court of Appeals, in Bell v F J Boutell Driveaway Co, 141 Mich App 802, 812-813; 369 NW2d 231 (1985), stated that while the case apparently involved a Michigan employer, the employee was an Ohio resident who was injured in Ohio. Thus, the bureau lacked jurisdiction.
Finally, in Hall v Chrysler Corp, 172 Mich App 670, 672-673; 432 NW2d 398 (1988), the Court of Appeals held that no jurisdiction existed over an out-of-state injury because although the contract had been entered in Michigan with a Michigan company, the employee was not a Michigan resident.
At this point, two Supreme Court holdings and six Court of Appeals holdings left no doubt that § 8458 and its successors, 1948 CL 413.19 and MCL 418.845, were incontrovertibly the law when this Court rejected this entire line of authority in Boyd.
Paying no heed to (1) the rationale of Roberts, (2) the unmistakable effect of the 1943 statutory amendment, and (3) the nine later cases implicitly recognizing these matters, the Boyd Court seized on the dicta in Roberts discussing the “humane purposes” of the WDCA. The Boyd Court asserted that MCL 418.845 could not be enforced because such a jurisdictional scheme was “not only undesirable but also unduly restrictive.” Boyd, supra at 524. The Boyd majority, in the face of all contrary evidence, nonetheless opined that the Legislature had acquiesced in the Roberts construction. In reality, however, even assuming that legislative acquiescence is a valid judicial interpretative tool, the Legislature had no need to acquiesce because the Legislature had, responding to Roberts, repealed the section (§ 8412) that had caused the predecessor of MCL 418.845 to be inoperable. 11 Thus, MCL 418.845 should have been enforced, as it had been for many years. The Boyd Court erred in holding to the contrary.
B. STARE DECISIS
We conclude that overruling Boyd is warranted under the doctrine of stare decisis as set forth in Robinson. Stare decisis is a principle of policy rather than an inexorable command, and this Court is not bound to follow precedent that is unworkable or badly reasoned. Robinson, supra at 464. In assessing whether to overrule a prior decision, we must consider whether the prior decision was wrongly decided, whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the decision. Id. “As to the reliance interest, the Court must ask whether the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations.” Id. at 466.
As discussed, the text of MCL 418.845 is so patently clear that its meaning is truly beyond any reasonable dispute. MCL 418.845 plainly grants jurisdiction to the bureau only where the injured employee was a resident of the state at the time of the injury and the contract of hire was made in Michigan. Because the Boyd Court (1) construed the statute to eliminate the residency requirement and (2) failed to recognize that the Legislature abrogated the Roberts decision by making the workers’ compensation system mandatory in 1943, we conclude that Boyd was wrongly decided.
We discern no basis to conclude that Boyd has become so fundamental to expectations that overruling it would produce practical, real-world dislocations. Overruling Boyd will not affect any employees who are injured in Michigan because MCL 418.845 addresses jurisdiction only for out-of-state injuries. Nor will our decision affect any Michigan residents who are injured in another state. Rather, it is only residents of other states who are injured outside Michigan who would be affected by overruling Boyd. We discern no reason to believe that persons who neither live in Michigan nor suffer an injury in Michigan harbor expectations of receiving Michigan workers’ compensation coverage, let alone that any such expectations are so embedded and fundamental that real-world dislocations will arise.
Moreover, nonresidents who are injured in other states remain free to seek workers’ compensation benefits from the states in which they live or suffer injury. For example, plaintiff suffered an injury in his home state of Florida and obtained benefits under the Florida workers’ compensation system. We see no indication that, as a Florida resident who was injured in Florida, plaintiff harbored an expectation of receiving benefits under the Michigan workers’ compensation system in addition to the benefits he received from the Florida system.
In considering the reliance interests at stake, we believe it is significant that the holding in Roberts has not consistently been the law in Michigan since 1932. In truth, Roberts was legislatively overruled by the 1943 amendments of the workers’ compensation act. Indeed, the Wolf decision recognized the legislative abrogation and properly applied the plain language of MCL 418.845 on the ground that the Roberts analysis was inapplicable to our modern, mandatory workers’ compensation system. Plaintiff has offered no evidence that chaos erupted, or that practical, real-world dislocations arose, in the period between the Legislature’s abrogation of Roberts in 1943 and this Court’s Boyd decision in 1993.
In addition, we believe that the clarity of the statutory language suggests that overruling Boyd will advance rather than disrupt reliance interests. Indeed, we made this very point in Robinson-.
Further, it is well to recall in discussing reliance, when dealing with an area of the law that is statutory ... , that it is to the words of the statute itself that a citizen first looks for guidance in directing his actions. This is the essence of the rule of law: to know in advance what the rules of society are. Thus, if the words of the statute are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts. In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction. The reason for this is that the court in distorting the statute was engaged in a form of judicial usurpation that runs counter to the bedrock principle of American constitutionalism, i.e., that the lawmaking power is reposed in the people as reflected in the work of the Legislature, and, absent a constitutional violation, the courts have no legitimacy in overruling or nullifying the people’s representatives. Moreover, not only does such a compromising by a court of the citizen’s ability to rely on a statute have no constitutional warrant, it can gain no higher pedigree as later courts repeat the error. [Robinson, supra at 467-468.]
The same reasoning applies here. We decline to perpetuate the distorted construction of MCL 418.845 adopted in Boyd. Rather, we are obligated to give effect to the statutory text to serve the fundamental expectation of our citizens that the law means what it says. The statute here is written in a plain, straightforward manner. Rather than give effect to this language, the Boyd Court nullified the clear policy choice made by the Legislature and thereby undermined the legitimate expectations of Michigan citizens that the courts will carry out the laws as they are written.
IV RESPONSE TO JUSTICE KELLY’S DISSENT
In her dissent, Justice KELLY disagrees with the legislative policy reflected in the clear language of MCL 418.845. She shares the Boyd majority’s view that the Legislature’s policy choice is “ ‘undesirable’ ” and “ ‘unduly restrictive.’ ” Post at 54 (quoting with approval from Boyd, supra at 523-524). Justice KELLY is certainly entitled to her personal opinion about what the law should be. She manifestly does not, however, possess the authority to rewrite the law that the people’s elected representatives have duly enacted. She nowhere explains the source of her authority to do this.
Under our constitution, “all political power is inherent in the people.” Const 1963, art 1, § 1. The people have chosen to vest the legislative power “in a senate and a house of representatives.” Const 1963, art 4, § 1. The people have not forfeited lawmaking authority to a judicial aristocracy that may simply rewrite laws with which they disagree.
Here is a law that is perfectly clear to the reader. MCL 418.845 grants jurisdiction to the bureau for out-of-state injuries where “the injured employee is a resident of this state at the time of injury and the contract of hire was made in this state.” (Emphasis added.)
Despite this unassailably clear language, Justice KELLY asserts that the Boyd Court correctly identified the “intent behind § 845” as providing “jurisdiction over extraterritorial injuries without regard to the employee’s residence, provided the employment contract was entered into in Michigan with a resident employer.” Post at 51 (emphasis added). In other words, Justice KELLY says that the employee’s residence is simply irrelevant, despite the Legislature’s express statement to the contrary.
Presumably, Justice KELLY denies that she is arrogating to herself the power to rewrite the law. The clear statutory language quoted above naturally leads one to ask this question: Precisely what part of the word “and” is difficult to understand? Surely anyone who reads this statute can follow what it says without difficulty: jurisdiction is conferred where (1) the injured employee lives in Michigan at the time of injury and (2) the contract of hire was made in this state. MCL 418.845. The Legislature’s use of the word “and” makes it perfectly clear to any reader that both requirements must be met.
Despite all this, Justice KELLY has opined that the Legislature did not mean what it so clearly said. Justice KELLY offers no explanation for how the language of MCL 418.845 supports her interpretation. Her construction would subvert the legislative policy reflected in the clear statutory language. In accord with our constitutional duty, we have applied the statutory language to the facts of this case, consistent with earlier caselaw that had prevailed before the aberrational decision in Boyd.
Finally, we note that Justice KELLY repeats her criticisms about the overruling of a prior decision. See her dissent in Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 (2007). Justice MAKKMAN’s concurrence in Rowland offers a thoughtful and illuminating response to those criticisms. I fully endorse the views that Justice Maekman expressed in that case.
v CONCLUSION
We hold that under the plain language of MCL 418.845, the workers’ compensation bureau has jurisdiction over out-of-state injuries only where the plaintiff was a resident of Michigan at the time of the injury and the employment contract was made in Michigan. We must therefore overrule the decision in Boyd. The doctrine of stare decisis as explicated in Robinson supports the decision to overrule Boyd.
Taylor, C.J., and Young and Markman, JJ., concurred with Corrigan, J.
1 Unpublished opinion per curiam, issued October 18,2005 (Docket No. 256172), p 2.
474 Mich 1087 (2006).
This statute was enacted as part III, § 19 of the act by 1921 PA 173. In the 1929 Compilation, it was numbered 1929 CL 8458. In the 1948 Compilation, it was renumbered 1948 CL 413.19. 1969 PA 317, § 898 repealed 1948 CL 413.19 and Act 317 also enacted MCL 418.845. While the statute has been renumbered, repealed, and reenacted over the years, the original language is virtually identical to the current statute, MCL 418.845.
The creation of the Workmen’s Compensation Act and the WDCA is discussed in Cain v Waste Mgt, Inc (After Remand), 472 Mich 236, 247-249; 697 NW2d 130 (2005).
In Hulswit v Escanaba Mfg Co, 218 Mich 331; 188 NW 411 (1922), this Court reached a similar conclusion. Although this case was decided after the 1921 amendment, the act before the adoption of the amendment controlled that case.
In her dissent, Justice Kelly argues that the “Court in Daniels relied on Cline v Byrne Doors, Inc, for the proposition that, ‘ “Under the provisions in the Michigan statute on which plaintiff relies [i.e., the precursor to § 845], his right to compensation depends on whether he was employed by virtue of a contract of hire made in this State.” ’ Daniels, 327 Mich at 530, quoting Cline v Byrne Doors, Inc, 327 Mich 540.” Post at 58. This is simply not true.
In Daniels, this Court noted the plaintiff’s argument that “neither the residence of the employee, the place or State of hiring, nor the place or State of injury is controlling.” Id. at 528. It then noted that the defendant had relied on the predecessor to the statute at issue here in arguing that the Workmen’s Compensation Commission had jurisdiction over out-of-state injuries only when “the injured employee is a resident of Michigan at the time of the injury and the contract of hire was made in Michigan.” Id. at 529-530. Further, it found that the only decision in Michigan after the effective date of 1943 PA 245, the amendment that made the act compulsory, Cline, supra, “does not decide the issue in the case at bar.” Id. at 530. This Court then stated that under the facts before it, the Workmen’s Compensation Commission exceeded its jurisdiction in making an award to the plaintiff. Id. While it is true that the Court never mentioned Roberts, the Legislature had by passing 1943 PA 245 destroyed the rationale and, with it, the viabihiy of Roberts, so no other reading of the case can be sustained. Thus, the Legislature having effectively dispatched Roberts, the Court in Daniels simply chose to ignore Roberts.
In dissent, then-Judge Levin made the following telling observation regarding the effect of the 1943 amendment:
In eliminating the optional nature of coverage under the act and making coverage compulsory, and in eliminating the former statutory language that an electing employer agrees “to cover and protect all employees employed in any and all of his businesses,” the legislature eliminated the fundamental bases of the Crane, Huslwit, and Roberts holdings. [Id. at 326-327 (Levin, EJ., dissenting).]
The same understanding of the effect of 1943 FA 245 seen in Daniels explains why the Crenshaw Court neither distinguished nor overruled Roberts, and also why it did not cite Roberts as authority. Rather, it properly relied on the statute, which by its plain language required both that the employee was a resident of Michigan at the time of the injury and that the contract of hire was made in Michigan to deny the plaintiff benefits. Justice Kelly’s assertion in her dissent that some other reading is possible is, we believe, not convincing in the context of this case and the Daniels case.
The one contrary decision, Austin, supra, was ignored by the seven decisions that followed.
See the discussion in n 11 of this opinion for an explanation of this Court’s repudiation of the legislative acquiescence doctrine.
In her dissent in Boyd, Justice Riley explained why she believed the majority’s reliance on the legislative acquiescence doctrine was misguided:
Considering the changes in the nature of the worker’s compensation system, as well as the clarity of the statutory language, the principle of legislative acquiescence should not be used to continue a decision that lacks persuasive legal foundation. Moreover, the clarity of the conjunctive language used in MCL 418.845; MSA 17.237(845) also supports the argument that the Legislature could not change the language of the statute after Roberts to add a residency requirement, because the clear language already existed in the statute and nothing else needed to be added. Therefore, legislative acquiescence to the Roberts decision is not as clear as the majority suggests. [Id. at 536.]
Moreover, after Boyd, this Court strongly criticized the doctrine of legislative acquiescence. In Donajkowski v Alpena Power Co, 460 Mich 243, 261; 597 NW2d 574 (1999), we stated that “ ‘legislative acquiescence’ is a highly disfavored doctrine of statutory construction; sound principles of statutory construction require that Michigan courts determine the Legislature’s intent from its words, not from its silence.” (Emphasis in original.)
That states like Florida might not provide workers’ compensation benefits as generously as does Michigan’s system does not alter our conclusion. Any difference in the level of benefits afforded simply reflects a difference in the policy choices made by each sovereign state. The citizens of Florida through their elected representatives are free to fashion their workers’ compensation system as they see fit. If a Florida resident (such as plaintiff) believes that more generous benefits should be provided, the remedy lies with the Florida legislature, not with this Court.
Notably, with the single exception of Austin in 1968, the published decisions before Boyd had not questioned that the Legislature’s 1943 amendment superseded Roberts. Of the nine cases that cited MCL 418.845 or its predecessor between 1950 and 1992, no case other than Austin suggested that Roberts continued to govern despite the 1943 amendment. See Daniels, supra; Austin, supra; Rodwell, supra; Crenshaw, supra; Jensen, supra; Shaw, supra; Wolf, supra; Bell, supra; and Hall, supra.
Thus, overruling Boyd will not produce chaos or practical, real-world dislocations because we are not creating a “new” rule of law. On the contrary, our decision simply restores the law to that which existed before the aberrational decision in Boyd.
Justice Kelly incorrectly asserts that in addition to Boyd, we are also overruling Roberts. As we have explained, Roberts was legislatively abrogated by the 1943 amendments of the workers’ compensation act. It is unnecessary for this Court to overrule a decision that has already been overruled by legislative action.
We disagree with the assertions by Justices Weaver and Kelly that we should limit our decision to prospective application. Such prospective application “is, essentially, an exercise of the legislative power to determine what the law shall be for all future cases, rather than an exercise of the judicial power to determine what the existing law is and apply it to the case at hand.” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 587 n 57; 702 NW2d 539 (2005) (emphasis in original). This Court generally may not exercise powers properly belonging to another branch of government. Const 1963, art 3, § 2. Moreover, “prospective opinions are, in essence, advisory opinions, and our only constitutional authorization to issue advisory opinions is found in Const 1963, art 3, § 8, which does not apply in this case.” Devillers, supra at 588 n 57. Accordingly, our holding in this case shall apply to all claimants for whom there has not been a final judgment awarding benefits as of the date of this opinion. Id. | [
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Markman, J.
We granted leave to appeal to consider whether Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), or People v Robideau, 419 Mich 458; 355 NW2d 592 (1984), sets forth the proper test in Michigan for determining when multiple punishments are barred on double jeopardy grounds.
Following a jury trial, defendant was convicted of two counts of first-degree felony murder, MCL 750.316(1)(b), with larceny as the predicate felony. Defendant was also convicted of two counts of armed robbery, MCL 750.529, and four counts of possession of a firearm during the commission of a felony, MCL 750.227b. Defendant appealed, asserting that his convictions for both first-degree felony murder and armed robbery violate the Double Jeopardy Clause of the Michigan Constitution, Const 1963, art 1, § 15. The Court of Appeals concluded that there was no evidence that defendant had committed the separate offenses of robbery and larceny and therefore held that defendant’s armed robbery convictions violated double jeopardy. As a result, the Court of Appeals vacated defendant’s two convictions and sentences for armed robbery and the accompanying convictions for felony-firearm. Unpublished opinion per curiam, issued December 27, 2005 (Docket No. 257353). We conclude that the Court of Appeals erred in its double jeopardy analysis by comparing the felony-murder convictions to the non-predicate felonies of armed robbery. Because armed robbery was not the predicate felony involved in the instant felony-murder convictions, reversal is not required pursuant to People v Wilder, 411 Mich 328; 308 NW2d 112 (1981). We further conclude that the language “same offense” in Const 1963, art 1, § 15 means the same thing in the context of the “multiple punishments” strand of the Double Jeopardy Clause as it does in the context of the “successive prosecutions” strand addressed by the Court in People v Nutt, 469 Mich 565; 677 NW2d 1 (2004). We therefore hold that Blockburger sets forth the proper test to determine when multiple punishments are barred on double jeopardy grounds. Because each of the crimes for which defendant here was convicted, first-degree felony murder and armed robbery, has an element that the other does not, they are not the “same offense” and, therefore, defendant may be punished for each. Accordingly, we reverse the part of the judgment of the Court of Appeals that vacated the armed robbery convictions and sentences and two of the felony-firearm convictions and sentences, and remand this case to the trial court to reinstate defendant’s convictions and sentences for armed robbery and the accompanying felony-firearm convictions and sentences.
I. FACTS AND PROCEDURAL HISTORY
At approximately 10:30 a.m. on January 7, 2003, a customer entering the City Tire store in Pontiac discovered the bodies of store employee Stephen Putman and store owner Richard Cummings. Putman had died of a gunshot wound to the neck and Cummings had died from two gunshot wounds to the head. The police determined that $2,000 in cash that Cummings brought to the store from home to use in the store’s cash register was missing, as were the store’s proceeds from that morning. In addition, Pontiac police officers interviewed the victims’ families and determined that both Putman’s and Cummings’s wallets were missing and that the money Cummings carried in his front pocket was also missing.
On January 8, 2004, the police received a call from Tywanda Smith, defendant’s wife, who informed them that defendant confessed to her that he had committed the murders. Smith testified that defendant told her that he first asked “the young guy [Putman]” for the money but that “the young guy acted like he didn’t know what [defendant] was talking about and [defendant] shot him.” Defendant then asked the “old guy [Cummings]” where the money was, and Cummings responded, “What do you think you are going to do? You going to rob me?” Cummings then hit defendant on the hand with an unknown object and defendant responded by shooting Cummings twice in the head. Defendant then admitted that, after the shootings, he took money and a set of keys from the store, but did not take any vehicle. Defendant also told Smith that the police had no evidence implicating him in the murders because he threw the gun into the river.
Defendant was prosecuted for two counts of first-degree felony murder, with larceny as the predicate felony, two counts of armed robbery, and four counts of felony-firearm. Following a jury trial, defendant was convicted on all charges. He appealed, contending that his convictions for two counts of felony murder and two counts of armed robbery committed during the course of the murders constituted a violation of the Double Jeopardy Clause of the Michigan Constitution. The Court of Appeals undertook its analysis by noting that larceny is a lesser included offense of robbery and that there was no evidence that defendant committed the separate offenses of robbery and larceny. Slip op at 2. On that basis, the Court of Appeals concluded that armed robbery, not larceny, was the predicate felony for the instant felony-murder convictions and, therefore, that it was bound by Wilder to reverse the armed robbery convictions as well as the accompanying felony-firearm convictions. Id. We granted the prosecutor’s application for leave to appeal. 475 Mich 864 (2006).
II. STANDARD OF REVIEW
A double jeopardy challenge presents a question of constitutional law that this Court reviews de novo. Nutt, supra at 573.
III. ANALYSIS
Const 1963, art 1, § 15 states that “[n]o person shall be subject for the same offense to be twice put in jeopardy.” The primary goal in interpreting a constitutional provision is to determine the text’s meaning to the ratifiers, the people, at the time of ratification. Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). Justice COOLEY described this principle of constitutional interpretation as follows:
A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. “For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.” [Cooley, A Treatise on the Constitutional Limitations (Little, Brown, & Co, 1886), p 81 (citation omitted).]
The Double Jeopardy Clause affords individuals “three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” Nutt, supra at 574. The first two protections are generally understood as the “successive prosecutions” strand of double jeopardy, while the third protection is commonly understood as the “multiple punishments” strand.
A. “SAME OFFENSE” FOR SUCCESSIVE PROSECUTIONS
Before 1973, the Court consistently construed Michigan’s Double Jeopardy Clause in a manner consistent with the federal courts’ interpretation of the Fifth Amendment of the United States Constitution. See, e.g., In re Ascher, 130 Mich 540, 545; 90 NW 418 (1902) (stating that “the law of jeopardy is doubtless the same under both [the federal and Michigan constitutions]”); People v Schepps, 231 Mich 260, 267; 203 NW 882 (1925) (quoting Ascher for the proposition that the Court is “committed” to the view of double jeopardy protections set forth by federal courts); People v Bigge, 297 Mich 58, 64; 297 NW 70 (1941) (holding that “[t]his State is committed to the view upon the subject of former jeopardy adopted by the Federal courts under the Federal Constitution”).
In People v Townsend, 214 Mich 267; 183 NW 177 (1921), the Court addressed the issue whether a defendant’s conviction in municipal court of driving an automobile while intoxicated served as a bar to a subsequent prosecution for manslaughter arising out of the same drunken driving incident. We began our analysis by noting that under the federal interpretation of the Fifth Amendment, a defendant who commits two or more separate offenses during a single criminal transaction may be prosecuted for each, as long as the offenses are different. Id. at 275, citing Gavieres v United States, 220 US 338; 31 S Ct 421; 55 L Ed 489 (1911). To determine whether two offenses are the “same offense” for double jeopardy purposes, the Court cited the “same elements” test articulated by the Supreme Court of Massachusetts in Morey v Commonwealth, 108 Mass 433, 434 (1871). The Morey rule, which would later be adopted by the United States Supreme Court in Blockburger, held that offenses are not the “same offense” if each statute requires proof of an element that the other does not. The Court concluded that the misdemeanor offense of driving an automobile while intoxicated was not the “same offense” as involuntary manslaughter and therefore affirmed the subsequent conviction. Townsend, supra at 281.
Thus, before 1973, the Court had construed Michigan’s Double Jeopardy Clause in a manner consistent with the interpretation of the Fifth Amendment by federal courts, Ascher, supra and held that the test for determining whether offenses are the “same offense” for double jeopardy purposes was whether each offense requires proof of a fact that the other does not. Townsend, supra. However, in People v White, 390 Mich 245; 212 NW2d 222 (1973), the Court abandoned this traditional understanding, and instead adopted the “same transaction” test for the “successive prosecutions” strand of double jeopardy. Shortly thereafter, in People v Cooper, 398 Mich 450, 461; 247 NW2d 866 (1976), the Court also abandoned the federal approach to successive prosecutions by different sovereigns in favor of a rule under which successive prosecutions could only proceed if “it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different.” Finally, in Robideau, the Court declined to adhere to the Blockburger test in the context of the “multiple punishments” strand of double jeopardy in favor of a rule intended to ascertain whether the Legislature intended to impose multiple punishments.
In Nutt, the Court granted leave to appeal to determine whether White’s interpretation of the language “same offense” in Const 1963, art 1, § 15 was consistent with the people’s understanding when they ratified the constitution. We undertook our analysis by noting that White’s creation of the “same transaction” test was inconsistent with the ordinary meaning of the phrase “offense” as a “crime” or “transgression.” Nutt, supra at 588. Moreover, and most critically, we concluded that White’s test was inconsistent with the understanding of the term “same offense” on the part of the ratifiers of our constitution. First, we noted that the framers of the constitution recognized that the Court had interpreted the double jeopardy provision of the 1908 Constitution in a manner consistent with the federal constitution. Second, we quoted the Address to the People, 2 Official Record, Constitutional Convention 1961, p 3364, which stated:
“[Const 1963, art 1, § 15] is a revision of Sec. 14, Article II, of the present constitution. The new language of the first sentence involves the substitution of the double jeopardy provision from the U.S. Constitution in place of the present provision which merely prohibits ‘acquittal on the merits.’ This is more consistent with the actual practice of the courts in Michigan.” [Nutt, supra at 590.]
In other words, when the people ratified Const 1963, art 1, § 15, they were advised that “(1) the double jeopardy protection conferred by our 1963 Constitution would parallel that of the federal constitution, and (2) that the proposal was meant to bring our double jeopardy provision into conformity with what this Court had already determined it to mean.” Nutt, supra at 590. In 1963, the federal Double Jeopardy Clause permitted successive prosecutions for all crimes committed during a single “transaction,” as long as each crime required proof of a fact that the other did not. Blockburger, supra at 304. The Nutt Court noted that the Blockburger test “ ‘focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, not withstanding a substantial overlap in the proof offered to establish the crimes.’ ” Nutt, supra at 576 (citation omitted). Because the “same transaction” test set forth in White is inconsistent with the federal approach, it is also inconsistent with the understanding of the ratifiers and, as a result, was overruled. Nutt, supra at 591-592.
In People v Davis, 472 Mich 156; 695 NW2d 45 (2005), the Court granted leave to appeal to determine whether the rule announced by Cooper for determining whether successive prosecutions by different sovereigns were barred on double jeopardy grounds was consistent with the meaning of “same offense” set forth in the constitution. We undertook our analysis by noting Nutt’s conclusion that the ratifiers of our constitution intended that Michigan’s Double Jeopardy Clause be construed consistently with Michigan precedent and the Fifth Amendment. At the time of ratification, the federal courts held that prosecution by one sovereign does not preclude a subsequent prosecution by a different sovereign based on the same act, where “ ‘by one act [the defendant] has committed two offences, for each of which he is justly punishable.’ ” Bartkus v Illinois, 359 US 121, 132; 79 S Ct 676; 3 L Ed 2d 684 (1959) (citation omitted); see also Heath v Alabama, 474 US 82, 88; 106 S Ct 433; 88 L Ed 2d 387 (1985). The rule set forth in Cooper was based on the Court’s detection of a trend in federal cases that brought Bartkus into disrepute. However, we recognized in Davis that this “trend” never came to fruition and, in fact, the United States Supreme Court validated the Bartkus reasoning in Heath. Therefore, in accord with the understanding that Michigan’s double jeopardy provision should “be construed consistently with the federal double jeopardy jurisprudence that then existed,” we overruled Cooper in Davis, supra at 168, and held that a defendant who commits one criminal act that violates the laws of two different sovereigns has committed two criminal acts for double jeopardy purposes.
In sum, offenses do not constitute the “same offense” for purposes of the “successive prosecutions” strand of double jeopardy if each offense requires proof of a fact that the other does not.
B. “SAME OFFENSE” FOR MULTIPLE PUNISHMENTS
X. PRE-X963 CASELAW
At issue in this case is whether “same offense” has the same meaning in the context of the “multiple punishments” strand of double jeopardy as it does in the context of the “successive prosecutions” strand. Pursuant to Nutt, we first examine Michigan caselaw addressing the “multiple punishments” strand of double jeopardy at the time of the ratification of the 1963 Constitution. While Michigan courts routinely applied the federal standard to the “successive prosecutions” strand, the Court did not address the “multiple punishments” strand until 1976. Robideau, supra at 481. Therefore, we must examine federal caselaw to determine how the Fifth Amendment was applied in the context of multiple punishments at the time our constitution was ratified. In Blockburger, the defendant was convicted of selling eight grains of morphine hydrochloride outside its original packaging and of engaging in that sale without a written order of the purchaser as required by the statute. The defendant claimed that because both convictions stemmed from a single narcotics sale, he could lawfully be punished only once for that single act. The United States Supreme Court undertook its analysis by noting that the language of the statutes created two distinct criminal offenses. In order to determine whether a defendant who, by a single act, commits two distinct criminal violations may be punished for both, the United States Supreme Court held that
the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342 .... In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Compare Albrecht v. United States, 273 U.S. 1, 11-12[; 47 S Ct 250; 71 L Ed 505 (1927)] .... [Blockburger, supra at 304.]
Because each of the violations of the Harrison Narcotic Act at issue contained an element that the other did not, the United States Supreme Court held that the defendant could be punished for each violation.
The United States Supreme Court reaffirmed the “same elements” approach to multiple punishments in Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958). In Gore, the defendant was charged with two counts of selling heroin “not in pursuance to a written order” of the person receiving the drugs; two counts of dispensing drugs that were not “in the original stamped package or from the original stamped package”; and two counts of facilitating concealment and sale of drugs, with knowledge that the drugs had been unlawfully imported. The defendant argued that the purpose behind each statute was to outlaw the nonmedicinal sale of narcotics and, therefore, Congress desired to punish only for a single offense when these multiple infractions are committed through a single sale. The United States Supreme Court disagreed, noting that, as in Blockburger, Congress’s decision to create three separate criminal violations, each with elements independent of the others, demonstrated that it intended that each violation be punishable separately. The Court went on to characterize the defendant’s argument as a policy argument and opined that such policy matters are better left to Congress:
In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility,... these are peculiarly questions of legislative policy. [Id. at 393.]
To summarize, at the time the 1963 Constitution was ratified, the United States Supreme Court had interpreted the language “same offense” in the Fifth Amendment to mean multiple punishments were authorized if “ ‘each statute requires proof of an additional fact which the other does not Blockburger, supra at 304 (citation omitted). While there was no Michigan caselaw construing the language “same offense” as it applied to the “multiple punishments” strand of double jeopardy, our courts had defined the term “same offense” for purposes of successive prosecutions by applying the federal “same elements” test.
2. POST-1963 CASELAW
The Court first addressed the “multiple punishments” strand of double jeopardy in People v Martin, 398 Mich 303; 247 NW2d 303 (1976). In Martin, the defendant was convicted of both possession and delivery of the same heroin. The Court noted that while a defendant can be charged for each act that constitutes a separate crime, “when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense.” Id. at 309. The Court found that possession of the heroin was a lesser included offense of its delivery because “[possession of the heroin present in this case was that necessary to its delivery.” Id. at 307 (emphasis in original). In other words, rather than focusing on the elements of the charged offenses, the Court focused on the facts of the particular case. While the Court cited a similar analysis by the United States Court of Appeals for the First Circuit in O’Clair v United States, 470 F2d 1199, 1203 (CA 1, 1972), it failed even to cite Blockburger, let alone explain why the “same elements” test did not apply. Rather, the Court justified its approach by quoting with approval the Supreme Judicial Court of Maine in State v Allen, 292 A2d 167, 172 (Me, 1972), which held:
The possession of narcotic drugs is an offense distinct from the sale thereof. But in the instant case the possession and sale clearly constituted one single and same act. The possession, as legally defined, is necessarily a constituent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused’s involvement into separate and distinct acts or transactions to obtain multiple convictions, and separate convictions under such circumstances will not stand.
In People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), the Court addressed the similar issue whether a defendant could be punished for the possession and sale of the same narcotic. The Court began its analysis by acknowledging that a defendant may possess a narcotic without selling it and, likewise, may sell a narcotic without possessing it. However, the Court again failed to acknowledge Blockburger and instead applied the fact-based approach of Martin, concluding that “from the evidence adduced at this trial, the illegal possession of heroin was obviously a lesser included offense of the illegal sale of heroin. When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin.” Id. at 548 (emphasis deleted).
In Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), the Court addressed the question whether double jeopardy forbade separate convictions and sentences for felony-firearm, MCL 750.227b, and the underlying felony. The Court undertook this analysis by noting that the language of MCL 750.227b, defining the offense as a “felony” and requiring that the two-year sentence must be served “in addition to” the sentence for the underlying felony, demonstrated “that the Legislature intended to make the carrying of a weapon during a felony a separate crime and intended that cumulative penalties should be imposed.” Wayne Co Prosecutor, supra at 391. In order to determine whether such an intention was consistent with the Double Jeopardy Clause, the Court then applied the “same elements” test from Blockburger. The Court observed that “[i]n applying the Blockburger rule, the United States Supreme Court has focused on the legal elements of the respective offenses, not on the particular factual occurrence which gives rise to the charges.” Id. at 395. Applying Blockburger, the Court then determined that the felony at issue, second-degree murder, contained an element that felony-firearm did not, namely a killing committed with malice, and, likewise, that felony-firearm contained an element that second-degree murder did not, namely that the defendant carried or possessed a firearm during the commission of any felony. Therefore, the Court concluded that the imposition of multiple punishments was not barred on double jeopardy grounds. Id. at 397.
However, in People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980), the Court reverted to the fact-based approach of Martin and Stewart. In Jankowski, the defendant was convicted of armed robbery, larceny over $100, and larceny in a building as the result of one felonious taking. The Court began its analysis by noting that, unlike in Wayne Co Prosecutor, there was no clear intention on the part of the Legislature that the crimes at issue be punished separately. The Court assessed the facts adduced at trial and determined that, because there was only one felonious taking, the larceny convictions constituted lesser offenses to the armed robbery conviction and therefore the larceny convictions were barred by double jeopardy.
The Court applied the same reasoning to first-degree felony murder and the predicate felony in Wilder. In Wilder, the defendant was convicted of both armed robbery and first-degree felony murder for a killing committed during the perpetration of that robbery. The Court began its analysis by noting that under the fact-based approach set forth in Martin and Stewart, if “the proof adduced at trial indicates that one offense is a necessarily or cognate lesser included offense of the other, then conviction of both the offenses will be precluded.” Wilder, supra at 343-344. The Court held that because the evidence required to prove first-degree felony murder also requires proof of the armed robbery, armed robbery is a lesser offense of first-degree felony murder and therefore multiple punishments for each offense were barred by double jeopardy. The Court went on to explain that its approach to the “multiple punishments” strand of double jeopardy differed from the federal approach set forth in Blockburger:
[T]he test concerning multiple punishment under our constitution has developed into a broader protective rule than that employed in the Federal courts. Under Federal authority, the Supreme Court established the “required evidence” test enunciated in Blockburger[, supra]. See also its original expression in Morey v Commonwealth, 108 Mass 433 (1871). In Blockburger, the Court outlined their test:
“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” [Blockburger, supra at] 304.
This approach isolates the elements of the offense as opposed to the actual proof of facts adduced at trial. See Harris[, supra]; United States v Kramer, 289 F2d 909, 913 (CA 2, 1961). Under this test, convictions of two criminal offenses arising from the same act are prohibited only when the greater offense necessarily includes all elements of the lesser offense. Accordingly, conviction of both offenses is precluded only where it is impossible to commit the greater offense without first having committed the lesser offense. From the perspective of lesser included offenses, the Supreme Court in cases concerning double jeopardy has thus adhered to the common-law definition of such offenses. See People v Ora Jones [395 Mich 379, 387; 236 NW2d 461 (1975)].
The Federal test in Blockburger can thus be distinguished from this Court’s approach in two principal ways. First, we find the proper focus of double jeopardy inquiry in this area to be the proof of facts adduced at trial rather than the theoretical elements of the offense alone. Proof of facts includes the elements of the offense as an object of proof. Yet, the actual evidence presented may also determine the propriety of finding a double jeopardy violation in any particular case. See [Martin, supra at 309; Stewart, supra at 548; Jankowski, supra at 91].
Second, we have held that double jeopardy claims under our constitution may prohibit multiple convictions involving cognate as well as necessarily included offenses. [Wilder, supra at 348 n 10.]
Finally, in Robideau, the Court addressed the issue whether double jeopardy prohibits multiple punishments for convictions of both first-degree criminal sexual conduct, MCL 750.520b(1)(c) (penetration under circumstances involving any “other felony”), and the underlying “other felony” of either armed robbery or kidnapping used to prove the charge of first-degree criminal sexual conduct. The Court undertook its analysis by noting that double jeopardy protection against multiple punishments constitutes a restraint on the courts, not the Legislature. The Court acknowledged that, where the intention of Congress is not clear, federal courts rely on Blockburger to determine whether Congress intended to permit multiple punishments. However, the Court rejected the Blockburger test, noting:
When applied in the abstract to the statutory elements of an offense, [the Blockburger test] merely serves to identify true lesser included offenses. While it may be true that the Legislature ordinarily does not intend multiple punishments when one crime is completely subsumed in another, Blockburger itself is of no aid in making the ultimate determination. Although its creation of a presumption may make a court’s task easier, it may also induce a court to avoid difficult questions of legislative intent in favor of the wooden application of a simplistic test. [Robideau, supra at 486.]
In place of Blockburger, the Court set forth “general principles” to be used when assessing legislative intention. Those principles include, but are not limited to, the following:
Statutes prohibiting conduct that is violative of distinct social norms can generally be viewed as separate and amenable to permitting multiple punishments. A court must identify the type of harm the Legislature intended to prevent. Where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments. For example, the crimes of larceny over $ 100, MCL 750.356; MSA 28.588, and larceny in a building, MCL 750.360; MSA 28.592, although having separate elements, are aimed at conduct too similar to conclude that multiple punishment was intended.
A further source of legislative intent can be found in the amount of punishment expressly authorized by the Legislature. Our criminal statutes often build upon one another. Where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. The Legislature has taken conduct from the base statute, decided that aggravating conduct deserves additional punishment, and imposed it accordingly, instead of imposing dual convictions. [Id. at 487-488.]
The Court applied its new test by first looking to the maximum penalty available under each statute to determine whether the Legislature intended to permit multiple punishments. Where the Legislature designates a lower maximum penalty for the “lesser” crime than for the “greater” crime, the Court held that it can be inferred that the Legislature did not intend multiple punishments. However, the Court held that the fact that first-degree criminal sexual conduct and the predicate offenses of armed robbery and kidnapping all carry a maximum penalty of life imprisonment served as evidence that the Legislature did intend multiple punishments there. Moreover, the Court found that the “social norm” the Legislature intended to protect by enactment of the criminal sexual conduct statute, i.e., protecting citizens against nonconsensual sexual penetration, would be poorly served by classifying the predicate felony as the “same offense” for double jeopardy purposes.
If we were to conclude that only one conviction could result from fact situations such as the cases at bar, the result would be that the defendants, having completed the predicate felonies of kidnapping and robbery, could then embark on one of the most heinous crimes possible, with no risk either of a second conviction or a statutorily increased maximum sentence. [Id. at 490.]
The Court concluded therefore that under its test, the Legislature intended that first-degree criminal sexual conduct and the predicate felonies of armed robbery and kidnapping be punished separately.
3. ROBIDEAU AND THE RATIFIERS’ UNDERSTANDING
Robideau’s creation of a new rule to determine whether two statutory offenses constitute the “same offense” for double jeopardy purposes was predicated on the Court’s conclusions in previous cases that: (1) Michigan’s Double Jeopardy Clause afforded greater protections than the Double Jeopardy Clause of the United States Constitution, Wilder, supra at 348 n 10; and (2) the Blockburger test did not account for Michigan’s then-current recognition of “cognate” lesser included offenses as “lesser offenses” under a fact-driven analysis. This conclusion that the Michigan Constitution affords greater protection than the Fifth Amendment has no basis in the language of Const 1963, art 1, § 15, the common understanding of that language by the ratifiers, or under Michigan caselaw as it existed at the time of ratification. Further, the concern expressed by the Court that Blockburger does not account for cognate lesser included offenses is no longer pertinent in light of People v Cornell, 466 Mich 335, 353; 646 NW2d 127 (2002). Finally, nothing in the language of the constitution indicates that the ratifiers intended to give the term “same offense” a different meaning in the context of the “multiple punishments” strand of double jeopardy than it has in the context of the “successive prosecutions” strand. In the absence of any evidence that the term “same offense” was intended by the ratifiers to include criminal offenses that do not share the same elements, we feel compelled to overrule Robideau and preceding decisions that are predicated on the same error of law, and to hold instead that Block-burger sets forth the appropriate test to determine whether multiple punishments are barred by Const 1963, art 1, § 15.
We conclude that in adopting Const 1963, art 1, § 15, the ratifiers of our constitution intended that our double jeopardy provision be construed consistently with then-existing Michigan caselaw and with the interpretation given to the Fifth Amendment by federal courts at the time of ratification. We further conclude that the ratifiers intended that the term “same offense” be given the same meaning in the context of the “multiple punishments” strand of double jeopardy that it has been given with respect to the “successive prosecutions” strand. As we noted in Nutt, supra at 594 (citation omitted), “ ‘there is no authority, except Grady [v Corbin, 495 US 508; 110 S Ct 2084; 109 L Ed 2d 548 (1990)], for the proposition that [the Double Jeopardy Clause] has different meanings [in different contexts],’ ” and Grady has been specifically overruled by United States v Dixon, 509 US 688, 704; 113 S Ct 2849; 125 L Ed 2d 556 (1993). At the time of ratification, we had defined the language “same offense” in the context of successive prosecutions by applying the federal “same elements” test. In interpreting “same offense” in the context of multiple punishments, federal courts first look to determine whether the legislature expressed a clear intention that multiple punishments be imposed. Missouri v Hunter, 459 US 359, 368; 103 S Ct 673; 74 L Ed 2d 535 (1983); see also Wayne Co Prosecutor, supra. Where the Legislature does clearly intend to impose such multiple punishments, “ ‘imposition of such sentences does not violate the Constitution,’ ” regardless of whether the offenses share the “same elements.” Id. (citation and emphasis deleted). Where the Legislature has not clearly expressed its intention to authorize multiple punishments, federal courts apply the “same elements” test of Blockburger to determine whether multiple punishments are permitted. Accordingly, we conclude that the “same elements” test set forth in Blockburger best gives effect to the intentions of the ratifiers of our constitution.
C. APPLICATION
We first conclude that the Court of Appeals erred in its double jeopardy analysis by comparing the first- degree felony murder conviction with the non-predicate felony of armed robbery. There is no Michigan author ity for the proposition that double jeopardy forbids the imposition of multiple punishments for felony murder and a non-predicate felony. Therefore, the proper offenses to be analyzed under the Blockburger test are the felonies for which defendant was convicted — first-degree felony murder and armed robbery.
Defendant’s convictions of first-degree felony murder and the non-predicate armed robbery withstand constitutional scrutiny under the “same elements” test. The elements of first-degree felony murder are: “ ‘(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [MCL 750.316(1)(b), here larceny].’ ” People v Carines, 460 Mich 750, 758-759; 597 NW2d 130 (1999) (citation omitted). The elements of armed robbery are: (1) an assault and (2) a felonious taking of property from the victim’s presence or person (3) while the defendant is armed with a weapon. Id. at 757. First-degree felony murder contains elements not included in armed robbery — namely a homicide and a mens rea of malice. Likewise, armed robbery contains elements not necessarily included in first-degree felony murder — namely that the defendant took property from a victim’s presence or person while armed with a weapon. Accordingly, we conclude that these offenses are not the “same offense” under either the Fifth Amendment or Const 1963, art 1, § 15 and therefore defendant may be punished separately for each offense.
IV RESPONSE TO JUSTICE KELLY
Justice KELLY asserts that we have “systematically and drastically altered Michigan double jeopardy jurisprudence.” Post at 340. In fact, our goal in interpreting provisions of our constitution is, and has always been, to give those provisions the meaning that the ratifiers intended. When the people ratified Const 1963, art 1, § 15, they understood that the term “same offense” would be construed as it always had been under Michigan caselaw on that point, i.e., in a manner consistent with the interpretation of the federal constitution. This was a critical understanding at the time, since the federal Double Jeopardy Clause had not yet been “incorporated” and applied against the states. See Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). Thus, the state Double Jeopardy Clause carried far greater independent significance than it does today, and the people took care to state their intentions about what it meant. These intentions must serve as the touchstone in determining the meaning of Michigan’s Double Jeopardy Clause. However, in White and its progeny, this Court disregarded the intentions of the ratifiers and substituted its own judgments regarding how double jeopardy principles should apply in this state.
The Court began this process of judicial amendment in White when it abandoned the “same elements” test that had been recognized in this state for at least 60 years, Ascher, supra at 545, in favor of the “same transaction” test advocated by Justice Brennan in his concurring statement in Ashe v Swenson, 397 US 436, 448; 90 S Ct 1189; 25 L Ed 2d 469 (1970). While White extolled the virtues of the “same transaction” test and noted that it had been adopted by “many” other state courts, it failed to mention that the test had been explicitly rejected in both Ascher and Townsend. Moreover, the Court dismissed out of hand a statement made just one year earlier by the authoring justice in White that the question whether the “same transaction” test should be adopted was “properly a decision for the Legislature and not for this Court.” People v Grimmett, 388 Mich 590, 607; 202 NW2d 278 (1972). Thus, the Court dismissed the holdings of Ascher, Townsend, and Grimmett, each of which was consistent with the express intentions of the ratifiers, in order to pursue what the Court believed was the “only meaningful approach to the constitutional protection against being placed twice in jeopardy.” White, supra at 257-258.
In Cooper, the Court continued to implement its own preferred policies in the realm of double jeopardy. The Court began its analysis by acknowledging that pre 1963 federal easelaw, specifically Bartkus, had held that when a defendant by one act violates the laws of two different sovereigns, double jeopardy does not bar the defendant’s prosecution by both. Despite acknowledging that Bartkus remained good law, the Court hesitated to apply its rule, identifying an alleged “trend” away from the logical underpinnings of that decision. However, it also hesitated to adopt the defendant’s position that the dual-sovereignty doctrine should be overruled in its entirety. Rather, the Court articulated a new “middle” position derived from a post-1963 decision of the Pennsylvania Supreme Court. Under this new rule, successive prosecutions by separate sovereigns were permissible only when “the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different.” Cooper, supra at 461. While the Court claimed that our constitution was the source of its authority for this new approach, it failed to cite any Michigan easelaw, and acknowledged that its holding was based, at least in part, on “ ‘some consideration [of] public policy.’ ” Id., quoting People v Beavers, 393 Mich 554, 581; 227 NW2d 511 (1975) (Coleman, J., dissenting).
Thus, at the time People v Nutt was decided, this Court’s double jeopardy jurisprudence had become largely unmoored from its constitutional foundation. In White and its progeny, the Court had disregarded the ratifiers’ understanding of the phrase “same offense,” and instead implemented a definition of the term that was consistent with its own ideas of “public policy.” However, in Nutt, we recognized that it was the ratifiers’ policy choices, and not those of the judiciary, which must govern our interpretation of the constitution. When White adopted the “same transaction” test, it acted contrary to the expressed intentions of the ratifiers that Michigan’s Double Jeopardy Clause be inter preted in a manner consistent with the federal constitution, in accord with our then-existing caselaw. Therefore, in order to implement the policy determinations of the people, we overruled White and reinstated the meaning of the phrase “same offense” as it was understood by the ratifiers.
Likewise, in People v Davis, we recognized that the entire foundation for Cooper’s rejection of the dual-sovereignty doctrine had been its “detection of a trend” calling Bartkus into question. In fact, the opposite proved to be true, and the United States Supreme Court later affirmed the dual-sovereignty doctrine in Heath. Because Cooper had been wrong about the status of federal double jeopardy analysis at the time of ratification, its adoption of the Pennsylvania standard in dual-sovereignty cases became simply untenable. Rather, the correct standard — that intended by the ratifiers — is that a defendant who commits one criminal act that violates the laws of two different sovereigns has committed two different offenses for double jeopardy purposes. Davis, supra at 168.
Justice KELLY does not even purport to argue that Robideau can be maintained in light of Nutt and Davis. Rather, Justice KELLY would apparently over rule all of our existing double jeopardy jurisprudence and return this Court to the days when it could safely disregard the intentions of the ratifiers, at least when such intentions conflicted with judicial preferences and assessments of public policy. The approach championed by Justice KELLY is simply incompatible with the paramount duty of the judiciary to construe the people’s constitution to mean what the ratifiers intended it to mean. Moreover, in order to maintain Robideau, this Court would be required to hold that the term “same offense” means different things depending on which double jeopardy protection is at issue, a proposition that has no historical or textual basis. Nutt, supra at 594. Therefore, in order to restore Const 1963, art 1, § 15 to the meaning the ratifiers intended, Robideau must be overruled.
In addition to restoring the law to what the ratifiers of the constitution manifestly intended, we believe that by its double jeopardy decisions, this Court has also restored a more responsible criminal justice system than that urged by Justice KELLY. In particular, this Court’s approach to double jeopardy will better ensure that criminal perpetrators be punished for all, not merely some, of their offenses; at the same time, it will make it more likely that policy and prosecutorial judgments assigned by our constitution to the legislative and executive branches are undertaken by those branches, rather than by the courts.
V CONCLUSION
We conclude that “same offense” in Const 1963, art 1, § 15 means the same thing in the context of the “multiple punishments” strand of double jeopardy as it does in the context of the “successive prosecutions” strand addressed by the Court in Nutt. The test set forth in Robideau for determining whether the Legislature intended to permit multiple punishments is inconsistent with the understanding of the ratifiers of our constitution that Michigan’s Double Jeopardy Clause be construed consistently with the Fifth Amendment, and therefore Robideau must be overruled. We further conclude that the Blockburger same-elements test, as the reigning test in this Court in the context of the “successive prosecutions” strand and in the federal courts in the context of the “multiple punishments” strand in 1963, effectuates the intentions of the ratifiers. Because each of the felonies of which defendant was convicted, first-degree felony murder and armed robbery, has an element that the other does not, they are not the “same offense” under either Const 1963, art 1, § 15 or US Const, Am V. Accordingly, we reverse the part of the judgment of the Court of Appeals that vacated the armed robbery convictions and sentences and two of the felony-firearm convictions and sentences, and remand this case to the trial court to reinstate defendant’s convictions and sentences for armed robbery and the accompanying felony-firearm convictions and sentences.
Taylor, C.J., and Corrigan and Young, JJ., concurred with Markman, J.
WEAVER, J. I concur in all except part IV
While defendant told Smith about the murders “some days” after they occurred, she did not contact the police until she saw newspaper and television coverage commemorating the one-year anniversary of the murders. The television coverage included a plea for information to assist in the investigation of the murders. Smith admitted on cross-examination that she told no one about her knowledge of the murders until contacting the police.
The Court of Appeals noted its agreement with Justice Corrigan's dissent in People v Curvan, 473 Mich 896, 903 (2005), in which she called into question the decision in Wilder that multiple punishments for felony murder and the predicate felony were barred on double jeopardy grounds, and stated that, absent Wilder, it would have held that “felony-murder is a distinct category of murder and not an enhanced form of armed robbery----” Slip op at 2 n 1.
We denied defendant’s application for leave to appeal. 475 Mich 871 (2006).
The analogous provision in the federal constitution, US Const, Am V, states that “[n]o person shall... be subject for the same offence to be twice put in jeopardy of life or limb ....”
Ascher interpreted the Double Jeopardy Clause of Const 1850, art 6, § 29, which stated, “No person after acquittal upon the merits shall be tried for the same offense.”
Schepps and Bigge each interpreted the Double Jeopardy Clause of Const 1908, art 2, § 14, which stated, “No person, after acquittal upon the merits, shall be tried for the same offense.”
By stating that the Michigan and federal double jeopardy clauses should be construed in a parallel fashion, “we do not mean that we are bound in our understanding of the Michigan Constitution by any particular interpretation of the United States Constitution.” Harvey v Michigan, 469 Mich 1, 6 n 3; 664 NW2d 767 (2003). We mean only that we have been persuaded in the past that interpretations of the Double Jeopardy Clause of the Fifth Amendment have accurately conveyed the meaning of Const 1963, art 1, § 15 as well.
The defendant was convicted under the former Harrison Narcotic Act, 26 USC 692, which stated:
It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs [opium and other narcotics] except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall he prima facie evidence of a violation of this section by the person in whose possession same may be found....
The defendant was convicted under the former 26 USC 696, which stated:
It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs specified in section 691 of this title, except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue.
10 In Albrecht, the United States Supreme Court held that “[t]here is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.”
The Court distinguished Martin and Steuiart on the basis that “the Legislature has clearly expressed in the felony-firearm statute an intent to authorize multiple convictions and cumulative punishments.” Id. at 402.
The Court acknowledged that “the elements of first-degree felony murder do not in every instance require or include the elements of armed robbery . . ..” Id. at 345.
In Cornell, we held that an offense is an “offense inferior to that charged in the indictment” for purposes of MCL 768.32(1) when “ ‘the lesser offense can be proved by the same facts that are used to establish the charged offense.’ ” Cornell, supra at 354 (citation omitted). In other words, an offense is the “same offense” for purposes of jury instructions if conviction of the greater offense necessarily requires conviction of the lesser offense.
In deciding whether to overrule a precedent, we consider: (1) whether the earlier decision was wrongly decided; and (2) whether practical, real-world dislocations would arise from overruling the decision. Robinson v Detroit, 462 Mich 439, 464-466; 613 NW2d 307 (2000). As discussed earlier in this opinion, we believe that Robideau and preceding decisions that are predicated on the same error of law were wrongly decided because they are inconsistent with the common understanding of “same offense.” Moreover, we can discern no practical, real-world dislocations or confusion that would arise from overruling Robideau. No reasonable person, in reliance on Robideau, would commit additional felonies during a criminal transaction in the hope that such additional criminal acts will not be punished separately. Finally, and not insignificantly in our judgment, failing to overrule Robideau would produce inconsistent rules regarding the meaning of the language “same offense” in Const 1963, art 1, § 15.
The Court of Appeals held that armed robbery was the “true” predicate felony in this case because “larceny is a necessarily included lesser offense of robbery, and because, factually, there was no evidence that defendant committed separate offenses of robbery and larceny, defendant’s armed robbery convictions violate double jeopardy protections.” Slip op at 2. Similarly, Justice Kelly argues that the prosecutor’s failure to distinguish between the property taken during the armed robbery and the property taken during the larceny establishes that there was not sufficient evidence to establish that defendant committed both crimes. Post at 333-334. However, as Justice Kelly acknowledges, the prosecutor’s comments to the jury during closing argument do not constitute evidence. People v Fields, 450 Mich 94, 116 n 26; 538 NW2d 356 (1995). Rather, to determine whether there was sufficient evidence to sustain each of the instant convictions, this Court must review the evidence “in a light most favorable to the prosecution ... and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt[.]” People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979) (citations omitted). Here, the evidence adduced at trial demonstrates that after the murder, both victims were missing their wallets, the store’s keys were missing, and money was missing from the cash drawer of the store. A reasonable juror could well conclude beyond a reasonable doubt that defendant stole the money, the keys, and the wallets. Further, a reasonable juror could well conclude that there were two separate takings of property in this case — the keys and the money from the cash drawer (which belonged to the store) and the wallets and the cash from the victims. Thus, despite a lack of clarity by the prosecutor in his closing argument, when viewed in a light most favorable to the prosecution, the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that defendant committed the separate offenses of armed robbery and larceny.
Nor are we persuaded by Justice Cavanagh that the Court’s decision in People v Wakeford, 418 Mich 95; 341 NW2d 68 (1983), supports the Court of Appeals conclusion that there was only one taking. In Wakeford, defendant robbed a market at gunpoint, forcing two separate cashiers to turn over the proceeds of their registers. Defendant claimed that his two convictions of armed robbery violated the Double Jeopardy Clause because each occurred during the same criminal transaction. This Court rejected that argument, noting that defendant assaulted and robbed two separate people and, therefore, could be held criminally hable for both. We also noted in dictum that, had this been a larceny charge, “the theft of several items at the same time and place constitutes a single larceny.” Id. at 112. Justice Cavanagh seizes on this dictum to support his argument that, once the instant defendant was convicted of larceny, that conviction encompassed all the property stolen in this case and that “no property remained that could have been separately taken as part of an armed robbery.” Post at 330. We disagree. In Wakeford there was a single victim from whom the defendant took multiple items. Thus, the dictum from Wakeford suggests that a defendant may not be convicted of multiple counts of larceny for different items taken from a single victim. However, in the instant case, there were three different victims — the proprietor of the store, Putman, and Cummings. It cannot be the case that once a defendant engages in a larceny, the defendant is free to take property from anyone else in the immediate vicinity without fear of any additional punishment.
Because armed robbery is not the predicate felony for the instant first-degree felony murders, we need not address Wilder’s holding that the constitution bars multiple punishments for first-degree felony murder and the predicate felony, or Justice Cavanagh’s concern that Block-burger “has its limitations” in cases involving compound offenses. Post at 326. However, we note that the Court in Wilder based its holding on the fact that “double jeopardy claims under our constitution may prohibit multiple convictions involving cognate as well as necessarily included offenses.” Wilder, supra at 349 n 10. Wilder’s focus on the “proof of facts adduced at trial,” id., seems questionable in light of the distinction between cognate lesser offenses and lesser included offenses dictated by the Court in Cornell.
Justice Kelly “continuéis] to reject the majority’s presumption that the voters of our state intended that Michigan’s Double Jeopardy Clause be interpreted exactly as the federal provision is interpreted.” Post at 343. While it is understandable that Justice Kelly would continue to adhere to her dissenting position in Nutt, the majority opinion in that case nonetheless remains binding law. Yet, Justice Kelly does not even attempt to argue that Robideau, which is being overruled here, can somehow be harmonized with Nutt. Given Justice Kelly’s impassioned opposition to our double jeopardy jurisprudence, and her statement that she would restore the law “as it existed before the instant majority began mangling it,"post at 339 n 13 (emphasis added), one is naturally tempted to re-inquire, see Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 223-228 (2007) (Markman, J., concurring), whether the ongoing dispute between the majority and Justice Kelly over overrulings of precedent truly concerns attitudes toward stare decisis or merely attitudes toward particular previous decisions of this Court. As the accompanying chart to my concurrence in Rowland demonstrates, the majority in many of its ovemilings of precedent also restored the law “as it existed” before the overruled precedent. Apparently, precedents can be disregarded only when Justice Kelly believes that the law has been “mangled,” not when other justices believe this. | [
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WEAVER, J.
In this case we consider the proper application of the exclusionary rule in a civil forfeiture proceeding in which the property subject to forfeiture has been illegally seized. We further consider whether In re Forfeiture of United States Currency, 166 Mich App 81; 420 NW2d 131 (1988), was correctly decided. In deciding these questions, we first hold that under Immigration & Naturalization Service v Lopez-Mendoza, 468 US 1032; 104 S Ct 3479; 82 L Ed 2d 778 (1984), illegally seized property is not immune from forfeiture. We also agree with the holding in United States v $639,558, 293 US App DC 384, 387; 955 F2d 712 (1992), that property subject to forfeiture that was illegally seized “is not ‘excluded’ from the proceeding entirely.” Instead, the illegally seized property “may be offered into evidence for the limited purpose of estabhshing its existence, and the court’s in rem jurisdiction over it.” Id.
Because we find that the exclusionary rule was never meant to preclude illegally seized property from a subsequent civil forfeiture proceeding involving that property, we hold that, in accord with In re Forfeiture of United States Currency and MCL 333.7521, as long as the order of forfeiture can be established by a preponderance of evidence untainted by the illegal search and seizure, the forfeiture is valid.
For the reasons summarized by the Court of Appeals in its decision affirming the circuit court’s judgment and order, we agree with the Court of Appeals that the circuit court did not clearly err in finding that, although the money was illegally seized, there was a preponderance of untainted evidence to support a finding of civil forfeiture pursuant to MCL 333.7521(1)(f).
Accordingly, we affirm the Court of Appeals judgment, and we further conclude that the Court of Appeals in In re Forfeiture of United States Currency reached the correct result.
FACTS
Claimant Tamika S. Smith was driving west on 1-94 when she was stopped for speeding by Michigan State Trooper James Lass. Smith was traveling with her two small children in a rental car rented by her adult male passenger, claimant Todd F. Fletcher. Trooper Lass obtained photo identification in the form of a driver’s license from both Smith and Fletcher and checked both licenses for outstanding warrants. Lass discovered that Smith’s license had been suspended, and that Fletcher’s license was valid, but that Fletcher had been identified as an individual to whom “officer safety caution” applied. After checking Fletcher’s criminal history, Trooper Lass learned that Fletcher had been arrested previously for possession of cocaine and for weapons offenses. On the basis of this information, Trooper Lass returned to the rental car and apparently advised Smith that he was going to search the trunk of the rental car, in which Trooper Lass subsequently discovered a backpack containing $180,975 in cash. Smith was cited for speeding and driving on a suspended license.
The state filed a complaint for forfeiture of the currency discovered in the backpack, pursuant to MCL 333.7521(1)(f). Before the forfeiture proceeding, claimant Smith filed a motion to suppress evidence of the backpack and its contents on the basis that the evidence was illegally seized in violation of the Fourth Amendment because Smith did not consent to the search of the rental car. The circuit court agreed with Smith, determined that there was no probable cause to search the trunk of the car, and granted Smith’s motion to suppress.
While the circuit court ruled that the $180,975 in currency was suppressed, the court allowed the prosecutor to introduce other evidence during the forfeiture proceeding. Specifically, the prosecutor presented evidence to show that Smith was a drug courier and that the $180,975 seized by Trooper Lass had been intended for the purchase of illegal drugs. The prosecutor submitted evidence that in the three months before Smith was stopped for speeding, Smith had rented several different rental cars at least four times for three days each time; that she had driven for several hundred miles on each occasion, but could not recall where she had driven; and that Smith’s tax records indicated that she generally earned between $4,000 and $5,000 a year and had no income in 2002, the year when she was stopped for speeding.
In addition, an expert in the area of illegal drug trafficking testified that 1-94, the highway on which Smith was driving when she was stopped, is a recognized major drug corridor between Detroit and Chicago, with large amounts of cash found in rental cars traveling west, and large amounts of illegal drugs recovered in rental cars going east. The circuit court further found that Smith’s explanation of how she came to be traveling with $180,975 in cash was neither consistent nor credible. Ultimately, the court ruled in favor of forfeiture, concluding that, even when the illegally seized evidence is excluded, the prosecutor established by a preponderance of the evidence that the money was intended to buy illicit drugs.
Claimant Smith appealed, and the Court of Appeals, finding no clear error, affirmed the forfeiture. Smith sought leave to appeal the Court of Appeals decision, and we granted leave to appeal to consider “(1) the proper application of the exclusionary rule in a forfeiture proceeding in which the property subject to forfeiture has been illegally seized, and (2) whether In re Forfeiture of United States Currency, 166 Mich App 81 (1988), was correctly decided.”
STANDARD OF REVIEW
This Court reviews de novo questions of law. Cowles v Bank West, 476 Mich 1, 13; 719 NW2d 94 (2006). The proper application of the exclusionary rule in a civil forfeiture proceeding is a question of law subject to review de novo. People v Stevens (After Remand), 460 Mich 626, 631; 597 NW2d 53 (1999). A trial court’s decision in a forfeiture proceeding will not be overturned unless it is clearly erroneous. A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made.
ANALYSIS
APPLICATION OF THE EXCLUSIONARY RULE TO CIVIL FORFEITURE UNDER MCL 333.7521
A forfeiture proceeding pursuant to MCL 333.7521(1)(f) is a proceeding in rem. As such, the item that is the subject of the forfeiture proceeding is the “offender” and the “claimant” is the owner, or perhaps only a possessor, of the item in question. As the United States Supreme Court explained in Various Items of Personal Property v United States:
It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted and punished. The forfeiture is no part of the punishment for the criminal offense. Origet v United States, 125 U. S. 240, 245-247 [8 S Ct 846; 31 L Ed 743 (1888)].
In One 1958 Plymouth Sedan v Pennsylvania, 380 US 693; 85 S Ct 1246; 14 L Ed 2d 170 (1965), the United States Supreme Court held that the exclusionary rule applied to forfeiture proceedings because forfeiture proceedings are quasi-criminal in nature. In this case, the prosecutor has raised questions about the continuing viability of One 1958 Plymouth Sedan. However, the prosecutor has not appealed the suppression order, and, therefore, this issue is not before us. Nevertheless, while One 1958 Plymouth Sedan has not been overruled and, thus, is still applicable, several subsequently decided cases indicate that the underpinnings of One 1958 Plymouth Sedan have been weakened.
For example, when the United States Supreme Court was presented with the question whether to exclude evidence from a federal civil tax proceeding on the basis that the evidence was obtained by a state law-enforcement officer relying in good faith on a defective warrant, the Court declined to extend the exclusionary rule to the federal proceeding. In so holding, the Court recognized that the primary purpose of the exclusionary rule, which is a judicially created remedy, is to deter future unlawful police conduct. As such, courts impose the exclusionary rule in criminal proceedings to deter police officers from making future illegal searches and seizures. Thus, the United States Supreme Court recognized that to further extend the exclusionary rule would not be prudent given that “the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh the cost to society of extending the rule to that situation.”
In Pennsylvania Bd of Probation & Parole v Scott, 524 US 357, 363; 118 S Ct 2014; 141 L Ed 2d 344 (1998), the United States Supreme Court explained that it has “repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials.” Additionally, the Supreme Court has declined to apply the exclusionary rule when the proceedings fall outside the offending officer’s primary focus. The Court has “never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.”* The deterrent function is strongest where the unlawful conduct would result in a criminal penalty. Extending the rule beyond the officer’s primary zone of interest would have, at most, only an incremental deterrent effect.
As acknowledged by the Court of Appeals in In re Forfeiture of United States Currency, “the Michigan forfeiture statute [MCL 333.7521(1)(f)] closely parallels the analogous federal statute, 21 USC 881(a)(6).” MCL 333.7521(1)(f) is contained within the controlled substances article of the Public Health Code. In summary, § 7521(1)(f) provides for the forfeiture of “any thing of value that is furnished or intended to be furnished in exchange for a controlled substance ... in violation of this article [or] that is traceable to an exchange for a controlled substance,... or that is used or intended to be used to facilitate any violation of this article ... .” Forfeiture proceedings under the administrative section of the Michigan Public Health Code are not within the offending police officer’s primary zone of interest. The primary goal of a police officer is to collect evidence to be used to convict a defendant in a criminal proceeding. The police officer’s main focus is not on obtaining evidence for a civil forfeiture action.
We further note, as amicus curiae, the Prosecuting Attorneys Association of Michigan, correctly observes, that there is a distinction between civil and criminal forfeiture proceedings. As mentioned in Various Items of Personal Property, supra at 580-581:
At common law, in many cases, the right of forfeiture did not attach until the offending person had been convicted and the record of conviction produced. But that doctrine did not apply, as this court in an early case pointed out, where the right of forfeiture was “created by statute, in rem, cognisable on the revenue side of the exchequer. The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing; and this, whether the offense be malum prohibitum, or malum in se.” The Palmyra, [25 US (12 Wheat) 1, 14; 6 L Ed 531 (1827)].
There is an additional distinction between civil and criminal forfeitures, namely that the latter are punitive in nature, while the former are not. Section 7521(1)(f) is not a criminal statute. There are no penalties or fines associated with a violation of this section. Further, there are no provisions for inquiry into the guilt or innocence of the owner or possessor of the item subject to forfeiture. Instead, the intent of civil forfeiture statutes like § 7521(1)(f) is to remove from circulation all cash, property, and contraband used to further drug-trafficking. Indeed, in Bennis v Michigan, the United States Supreme Court affirmed this Court’s decision that forfeiture under Michigan’s nuisance abatement statute was appropriate even when the joint owner of the forfeited vehicle was innocent. In so holding, the United States Supreme Court stated:
[Petitioner] claims she was entitled to contest the abatement by showing she did not know her husband would use it to violate Michigan’s indecency law. But a long and unbroken line of cases holds that an owner’s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to he put to such use. [Id. at 446 (emphasis added).]
Given the distinctions between a criminal proceeding against a defendant accused of a crime and a civil forfeiture against the offending object, we decline to rule that the exclusionary rule ever acts as a complete bar to bringing a forfeiture proceeding against an object that has been illegally seized. We instead examine the approach adopted by the Court of Appeals in In re Forfeiture of United States Currency and consider whether that decision was correct.
In re FORFEITURE OF UNITED STATES CURRENCY
The Court of Appeals affirmed the forfeiture of the $180,975 in currency on the basis of In re Forfeiture of United States Currency. Like claimant Smith herein, the petitioner there, Kenneth Williams, moved to suppress evidence of controlled substances and $30,632.41 in cash illegally seized from his home by the police. The trial court granted Williams’s motion to suppress and all criminal charges were dismissed. Thereafter, the city of Lansing brought a forfeiture proceeding against the seized items, and the trial court ruled in the city’s favor. Williams appealed, arguing that the trial court erred because illegally seized evidence could not be the subject of a subsequent forfeiture action. The Court of Appeals, when faced with the issue now before us, observed:
Michigan courts have not decided the specific question whether property seized pursuant to a search warrant which is subsequently held invalid may still be subject to forfeiture under the Michigan forfeiture statute. However, this Court has stated that property and monies described in the analogous federal statute are subject to forfeiture even where the seizure of the property subject to the forfeiture is subsequently found to be unlawful. Michigan State Police v 33d District Court, 138 Mich App 390, 395; 360 NW2d 196 (1984). [In re Forfeiture of United States Currency, supra at 87-88.]
Williams contended, as does claimant Smith here, that One 1958 Plymouth Sedan bars a forfeiture pro ceeding when the subject of the forfeiture is illegally seized property. The Court of Appeals in In re Forfeiture of United States Currency, supra at 88-89, disagreed:
One 1958 Plymouth Sedan holds that evidence and property illegally seized cannot be used in a forfeiture proceeding, and not that the illegally seized property cannot be forfeited.
The decision in United States v “Monkey” a Fishing Vessel, 725 F2d 1007, 1012 (CA 5, 1984), addressing forfeiture of illegally seized property under federal law, is instructive:
“This court recently decided that
“ ‘even ... if the seizure were illegal, it would not bar the government’s right to claim the vehicle through forfeiture proceedings. Improper seizure does not jeopardize the government’s right to secure forfeiture if the probable cause to seize the vehicle can be supported with untainted evidence. United States v Eighty-Eight Thousand, Five Hundred Dollars, 671 F2d 293, 297-298 (CA 8, 1982); United States v One 1975 Pontiac Lemans, 621 F2d 444, 450-451 (CA 1, 1980); United States v One Harley Davidson Motorcycle, 508 F2d 351, 351-352 (CA 9, 1974). This position is not contrary to One 1958 Plymouth Sedan v Pennsylvania, 380 US 693; 85 S Ct 1246; 14 L Ed 2d 170 (1965). That case holds that an object illegally seized cannot in any way be used either as evidence or as the basis for jurisdiction. Therefore, evidence derived from a search in violation of the fourth amendment must be excluded at a forfeiture proceeding. In the case at bar, all evidence of probable cause was developed independent of the seizure of the vehicle. Thus, even if a warrant were required, the failure to secure it would not bar the forfeiture of the vehicle.’ [United States v One 1978 Mercedes Benz, 4-Door Sedan, 711 F2d 1297 (CA 5, 1983).]”
We hold that illegally seized property is forfeitable under MCL 333.7521; MSA 14.15(7521), so long as the probable cause for its seizure can be supported with untainted evidence and any illegally seized property is excluded from the forfeiture proceeding. In this case, the illegally seized articles were never introduced into evidence. Thus, the circuit court complied with an interpretation of Michigan’s forfeiture statute which parallels the federal statute and is consistent with this opinion, despite its erroneous assertion as to the holding of One 1958 Plymouth Sedan.
We first note that the Court of Appeals panel in the instant case erred in relying on the erroneous standard of proof cited in In re Forfeiture of United States Currency when the panel held that “probable cause supported by untainted evidence existed for the seizure.” In re Forfeiture of $180,975, slip op at 2. The correct burden of proof is a preponderance of the evidence, not probable cause.
We agree with the Court of Appeals conclusion that while One 1958 Plymouth Sedan holds that illegally seized evidence and property cannot be used in a subsequent forfeiture proceeding, One 1958 Plymouth Sedan does not state that illegally seized property cannot be forfeited. We disagree, however, with the Court of Appeals inclusion in its analysis of the questionable conclusion made by the Fifth Circuit Court of Appeals that One 1958 Plymouth Sedan holds that “ ‘an object illegally seized cannot in any way be used either as evidence or as the basis for jurisdiction.’ ”
Although One 1958 Plymouth Sedan characterized the forfeiture proceeding in that case as being “quasi-criminal” and requires application of the exclusionary rule to forfeiture proceedings, neither One 1958 Plymouth Sedan nor the exclusionary rule prevents the mention of the illegally seized property that is the subject of the forfeiture proceeding. In fact, in Lopez-Mendoza, supra at 1039-1040, the United States Supreme Court stated that “[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred. A similar rule applies in forfeiture proceedings----” The United States Court of Appeals for the District of Columbia Circuit properly interpreted One 1958 Plymouth Sedan and Lopez-Mendoza in United States v $639,558:
When illegally seized property is itself the “defendant” in the forfeiture proceeding, it may not be “relied upon to sustain a forfeiture,” Plymouth Sedan, 380 U.S. at 698, but it is not “excluded” from the proceeding entirely. Such property may be offered into evidence for the limited purpose of establishing its existence, and the court’s in rem jurisdiction over it. This, we think, is the import of the Second Circuit’s recent statement that with respect to unlawfully obtained property that is the subject of the forfeiture suit, “the property itself cannot be excluded from the forfeiture action,” United States v. $ 37,780 in U.S. Currency, 920 F. 2d 159 at 163 (2d Cir. 1990). In other words, as the Supreme Court suggested in INS v. Lopez-Mendoza, 468 U.S. 1032 at 1041, 104 S. Ct. 3479, 82 L.Ed.2d 778 (1984), the fact that the defendant property had been seized after an illegal search does not “immunize” it from forfeiture, any more than a defendant illegally arrested is immunized from prosecution. United States v. Crews, 445 U.S. 463 at 474, 100 S. Ct. 1244, 63 L.Ed.2d 537 (1980). See, e.g., United States v. One (1) 1987 Mercury Marquis, 909 F.2d 167 at 169 (6th Cir. 1990); United States v. U.S. Currency $31,828, 760 F.2d 228 at 230-31 (8th Cir. 1985). Thus, other evidence, legally obtained, may be introduced to establish that the property should be forfeited to the government. United States v. One (1) 1971 Harley-Davidson Motorcycle, 508 F.2d 351 (9th Cir. 1974). In this case the government apparently had no such other evidence and, for that reason, the district court dismissed the action after ordering the cash (and the keys and ledgers) suppressed.
We agree with the conclusions in United States v $639,558 that (1) the illegal seizure of property does not immunize it from forfeiture, and (2) illegally seized property that is the subject, or “res,” of the forfeiture proceeding may be offered into evidence for the limited purpose of establishing its existence and the court’s in rem jurisdiction over it. We therefore find that the Court of Appeals in In re Forfeiture of United States Currency reached the correct result. We further hold that illegally seized property is forfeitable under MCL 333.7521 as long as the forfeiture can be supported by a preponderance of untainted evidence.
While illegally seized evidence itself is physically excluded, it is not entirely excluded from the forfeiture proceeding. However, questions concerning this excluded evidence should be limited to the circumstances surrounding its existence. For example, in the case of illegally seized cash, the state should not be permitted to exploit the search by asking how the money was packaged, or whether evidence of drugs was detected on the money. In addition, any other legally obtained evidence may be introduced to support the forfeiture.
Justice MARKMAN, in dissent, questions the propriety of permitting the consideration of the “surrounding circumstances” of illegally seized property during a forfeiture proceeding. Further, the dissent apparently would immunize the illegally seized property such that a court could not consider anything regarding that property, even the presence of a large sum of money, post at 485-486. Yet this reasoning has been rejected. In United States v $493,850 in United States Currency, the government sought to forfeit illegally seized cash, but the claimant asserted that the cash could not even be mentioned during the forfeiture proceeding and that the illegally seized cash should be treated as if it were a “widget.” The United States District Court for Arizona disagreed, holding:
However, the Court does not believe that exclusion of the cash means the Court must consider the defendant cash as a “widget.” The Court believes it can still take notice of the fact that the defendant is cash. This is obviously stated in the caption of the case. Perhaps the denominations making up the amount and the actual money itself cannot be put into evidence. However, there is no way for the Government to show that a “widget” is the product of a drug transaction and, therefore, the Court does not believe it has to disregard the fact that one of the defendants is cash.
Because a basic purpose of a drug forfeiture proceeding is to establish that the item subject to forfeiture (here the $180,975 in cash) is connected to drug activity, a court cannot be forced to pretend that the cash does not exist. Nor must the court turn a blind eye to the conclusions one reaches when considering all of the circumstances surrounding its existence and its implications. Rather, we apply a commonsense approach to drug forfeiture hearings in which the item subject to forfeiture has been excluded from evidence: while the court may not consider the specific physical characteristics of the item itself, the court can consider evidence presented in relation to the fact of the item’s existence, such as the fact that claimant’s testimony about the money itself is questionable. This approach in no way redefines the judicially created exclusionary rule. Here, the court can consider the reliability of the claimant’s testimony concerning the money’s origin, its existence in her rental car its intended purpose, the amount of the money in relation to her reported income, the fact that she was traveling along a known drug corridor in a rental car and that she had rented several cars in the preceding weeks, and any other circumstantial factors not specifically related to the physical characteristics of the money.
Our conclusion is supported by United States v $22,287 in United States Currency, in which the United States District Court for the Eastern District of Michigan held that the circumstances surrounding illegally seized cash may be considered. The court held that although all the evidence seized during an illegal drug raid ($22,287 in currency, a bag of heroin, two scales, and some firearms) was excluded, the forfeiture was still supported on the basis of a conversation between a police officer and a purported drug seller, as well as certain circumstances concerning the money. Specifically, the court noted that $22,287 was “an unusually large amount of cash for any individual to have on hand” and, further, that the amount of cash was “very close to the price of ‘nineteen five’ ($19,500.00) noted by Johnny [purported drug seller] as the cost of an ‘lb’ (pound of heroin).” These are precisely the type of factors regarding the existence of the cash that the dissent would preclude from consideration.
EVIDENCE SUPPORTING FORFEITURE
Turning now to the circuit court’s forfeiture hearing, we note that the circuit court correctly excluded evidence of the illegally seized backpack and its contents. Our next inquiry is whether there was a preponderance of untainted evidence to support the forfeiture. First, with respect to the $180,975 in cash found in the claimant’s rental car, while the cash itself was excluded from evidence, the trial court could properly consider the implications of the presence of such a large amount of cash in the vehicle. The Sixth Circuit Court of Appeals has held that “carrying a large sum of cash is strong evidence of some relationship with illegal drugs.” Here, as noted in the circuit court’s findings, the ruling of drug forfeiture was based in part on the presence of the $180,975 in currency:
Well, what do we have here? We have a very large amount of money. It is not illegal to have it. It is unheard [sic] of, but it is mighty unusual to have One Hundred Eighty Thousand Dollars ($180,000) in cash being transported in this vehicle.
The circuit court further noted:
It is also a little unusual and I guess it would create in one’s mind a suspicion, which isn’t sufficient, but it is a suspicion when the person transporting it [cash] and driving the vehicle has no apparent means to produce that kind of income or have that kind of money. And Exhibit 3 tells us that her [claimant’s] income peaked I think at one year at Fourteen Thousand (14,000) and usually it is Four to Five Thousand Dollars ($5,000) a year. So there is no good explanation why she would have it.
The circuit court’s suspicion about the claimant’s ability to produce such a large amount of income, given the evidence of claimant’s negligible taxable earnings, is also a factor that federal courts have used in concluding that there is sufficient evidence to support a drug forfeiture. For example, in United States v $174,206 in United States Currency, 320 F3d 658, 662 (CA 6, 2003), the Sixth Circuit Court of Appeals held that evidence of the claimants’ lack of legitimate income, by itself, was sufficient evidence to support the forfeiture of cash:
The United States has shown by a preponderance of the evidence that the properly [$174,206 in cash] is traceable to the drug offenses and is thus subject to forfeiture under 21 U.S.C. § 881(a)(6). The evidence before the district court showed that the Claimants’ legitimate income was insufficient to explain the large amount of currency found in their possession. State tax records showed that Richard had filed no income tax returns from 1994 through 1999, and that Love had filed no income tax returns from 1994 through 1997. Love’s 1998 and 1999 returns showed income of $ 15,147.00 and $ 15,995.00, respectively. In sum, then, the United States showed that the Claimants had a total of $31,142 in legitimate income between 1994 and 1999. The Claimants’ safe deposit boxes contained $174,206.00. This evidence of legitimate income that is insufficient to explain the large amount of property seized, unrebutted by any evidence pointing to any other source of legitimate income or any evidence indicating innocent ownership, satisfies the burden imposed by the statute.
The circuit court’s ruling of forfeiture was also based on the testimony of the expert on illegal drug trafficking:
And what we have discovered from hearing the testimony of the expert is that when in patrolling the interstate, and I-94 particularly, that I-94 is a corridor for transporting drug monies westbound and drugs eastbound.
And on the number of stops with large amounts of money with very little exception, large amounts of money without drugs headed westbound and large amounts of drugs without money is headed easthound. So, what this tells us is that the probability that this is a westbound transportation of drug money.
Further, that more often than not rental cars are used for this purpose, and that there are frequent rental of vehicles from Detroit hy the petitioner [claimant] for us. And that makes it more likely that she was transporting drug money.
Federal courts have held that evidence seized in a known drug corridor is probative in drug forfeiture cases. For example, in United States v $87,375 in United States Currency, 727 F Supp 155, 161 (D NJ, 1989), the district court held:
The fact that a large amount of money was being transported southward from New York through a well known drug corridor by a Colombian national who resides in Miami further supports the Government’s showing of probable cause. The reputation of an area for criminal activity may be relied on to support an inference of criminal conduct. See United States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984). The area where Mr. Camacho was stopped by Trooper Tomasello, along Route 40 in Salem County, New Jersey, carries such a volume of drug traffic that it is commonly known as “Cocaine Alley.” See United States v. $ 33,500, Civil Action No. 86-3348(MHC) (D.N.J. Aug. 17, 1988); United States v. $ 32,310, Civil Action No. 85-4004(MHC) (D.N.J. June 23, 1988). Colombia is a known major source of drugs which eventually get trafficked throughout the United States, and Miami is a known center for drug trafficking and money laundering. United States v. $ 364,960, 661 F2d at 323-24; United States v $ 5,644,540, 799 F.2d 1357, 1363 (9th Cir 1986). We are entitled to take such common experience considerations into account. United States v. $ 319,820,620 F. Supp. [1470, 1477 (ND Ga, 1985)].
A claimant’s explanation for the presence of large amounts of cash is also evaluated in drug forfeiture cases. Federal courts have held that a claimant’s false statement is probative of drug activity. “[IJnconsistencies and contradictions are relevant in determining whether the government has met its burden in justifying forfeiture.” For example, in United States v Funds in the Amount of $30,670, the claimant gave inconsistent testimony about the source of the $30,670 in cash contained in the his gym bag seized by drug enforcement agents. In finding under the “totality of circumstances” that there was a preponderance of evidence supporting forfeiture, the Seventh Circuit Court of Appeals considered the inconsistency and unreliability of the claimant’s testimony:
Calhoun’s [claimant’s] explanations regarding his travel to Phoenix are suspect. On the day his cash was seized, Calhoun was traveling to Phoenix, a recognized source city for illegal narcotics. See, e.g., [United States v] $22,474 [in United States Currency], 246 F.3d [1212] at 1216 [(CA 9, 2001)] (“Phoenixf] [is] a known source city for drugs.”); cf. United States v. Currency, U.S. $ 42,500.00, 283 F.3d 977, 981 (9th Cir. 2002) (giving weight to fact that claimant was “traveling from New York to San Diego, well known source cities for drugs”); United States v. $ 141,770.00 in U.S. Currency, 157 F.3d 600, 604 (8th Cir. 1998) (giving weight to fact that claimant was traveling from California, “a drug source state”). He had made frequent trips to Phoenix — seven trips within two months, not three as he claimed. Calhoun alleged that he stayed at the same hotel each trip (at “55th and the expressway”) but could not recall the hotel’s name; subpoenaed travel records indicate that Calhoun did not stay at any hotel at “55th and the expressway.” Yet he stayed in Phoenix at least 27 nights during the two months he had been traveling there (making his forgetfulness all the less credible). All of these inconsistencies are relevant in weighing whether the government has established its burden justifying forfeiture. See [United States u] $ 242,484 \in United States Currency], 389 F.3d [1149, ] 1164 [(CA 11, 2004)] (finding it proper to consider claimant’s inconsistent statements and changing stories in considering whether the government’s burden is met); $ 22,474, 246 F.3d at 1217 (“[Claimant’s] inconsistent statements about the money and his reasons for being in Phoenix tended to support an inference that the money was drug related.”); United States v. $ 67,220.00 in U.S. Currency, 957 F.2d 280, 286 (6th Cir. 1992) (“Misstatements are probative of possible criminal activity.”) [United States v Funds, supra at 467.]
As was the case in United States v Funds, claimant here gave unreliable and inconsistent testimony about why she had $180,975 in cash in the trunk other rental car. In addition, claimant’s testimony that she in tended to use the money to buy a house in Indianapolis was not credible. And while the dissent has suggested that if the cash subject to forfeiture is removed from consideration, claimant’s behavior appears “ordinary and innocent,” post at 486, we remind the dissent that the circuit court had the benefit of judging the credibility of the claimant’s testimony on the stand juxtaposed with the testimony of the illegal drug trafficking expert. Given claimant’s inability to provide a credible explanation for how she came to have such a large amount of cash in a rental car, while traveling along a known drug trafficking corridor, and given her unexplained and repeated history of using rental cars, as well as the absence of evidence supporting her explanation for the intended use of such a large amount of cash, the circuit court could properly find that her behavior was not “ordinary and innocent.”
Under such circumstances, it is not surprising that ultimately the circuit court found claimant’s testimony unpersuasive:
Her [claimant’s] testimony [is] that she was transporting the money to buy a house and in the Indianapolis area, that there is no buy/sell agreement. There is no documentation. There is no substantiation of that. Her testimony about the money and how it happened to get into the car was changing and ambiguous, and very honestly not very credible. So when all gets said and done, I don’t give much credibility to her testimony given the contradictions involved.
In deciding whether there is sufficient evidence to support a ruling of drug forfeiture, the Eleventh Circuit Court of Appeals has held that “we look to the totality of circumstances and do not try to pick them off, one by one, by conjuring up some alternative hypothesis of innocence to explain each circumstance in isolation.”
CONCLUSION
We conclude that the exclusionary rule was not meant to immunize illegally seized property from a subsequent civil forfeiture proceeding in which the seized property is the subject of the proceeding. We hold that, in accord with In re Forfeiture of United States Currency and MCL 333.7521, as long as the forfeiture can be established by a preponderance of untainted evidence, the forfeiture is valid. Consequently, it was appropriate for the circuit court to proceed with the forfeiture hearing as long as the illegally seized currency was excluded from evidence. As summarized by the Court of Appeals in its opinion affirming the circuit court, a preponderance of independent evidence supported the forfeiture:
At trial, expert testimony was presented that I-94 is a primary “pipeline” for narcotic sales. Couriers carry large sums of money west on I-94 to purchase drugs in Chicago. The drugs are then transported and delivered east to Detroit and other eastern cities. Cash is the customary method of payment; cars are the most common form of conveyance; couriers frequently use rental cars; and the trips are quick. The evidence indicated that claimant was driving a rental car. Further, in the three-months before the stop, claimant had rented at least four cars for three days each, placed several hundred miles on each car, and did not recall where she had driven. Additionally, her tax records reflected that from 1998 through 2001, claimant generally earned between $ 4,000 and $5,000 a year. An expert opined that the large amount of cash claimant was transporting west on I-94 was consistent with claimant’s being a courier and intending to purchase drugs. [In re Forfeiture of $180,975, slip op at 2.]
Reviewing the circuit court’s findings, under the “totality of circumstances,” we agree with the Court of Appeals that the circuit court did not clearly err in determining that although the money had been illegally seized, there was a preponderance of untainted evidence to support a civil forfeiture pursuant to MCL 333.7521(1)(f).
Accordingly, we affirm the Court of Appeals judgment below and we further conclude that the Court of Appeals in In re Forfeiture of United States Currency reached the correct result.
Taylor, C.J., and Corrigan and Young, JJ., concurred with Weaver, J.
Because it was not clear that Smith consented to the search of the trunk, after an evidentiary hearing, the trial court granted Smith’s motion to suppress evidence of the backpack and its contents on the ground that the seizure was illegal under the Fourth Amendment, US Const, Am IV, and Const 1963, art 1, § 11.
No criminal charges arising out of this incident were ever filed against Smith.
In re Forfeiture of $180,975, unpublished memorandum opinion of the Court of Appeals, issued December 28, 2004 (Docket No. 249699).
In re Forfeiture of $180,975, 475 Mich 909 (2006).
People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983); People v United States Currency, 148 Mich App 326, 329; 383 NW2d 633 (1986).
Kitchen v Kitchen, 465 Mich 654, 661-662; 641 NW2d 245 (2002).
282 US 577, 581; 51 S Ct 282; 75 L Ed 558 (1931).
United States v Janis, 428 US 433, 454; 96 S Ct 3021; 49 L Ed 2d 1046 (1976).
Id. at 453-454. See also Lopez-Mendoza, supra at 1041-1042 (during civil deportation proceeding, court declined to apply exclusionary rule to bar admission of illegally seized evidence); Pennsylvania Bd of Probation & Parole v Scott, 524 US 357, 366-367; 118 S Ct 2014; 141 L Ed 2d 344 (1998) (exclusionary rule does not bar admission of evidence at parole revocation hearing even though evidence obtained in violation of Fourth Amendment).
See Janis, supra, Lopez-Mendoza, supra, and Scott, supra.
Scott, supra at 368.
See id.
Id.
21 USC 881(a)(6) provides:
The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(6) All monies, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all monies, negotiable instruments and securities used or intended to be used to facilitate any violation of this subchapter, except that no property shall be forfeited under this paragraph to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.
MCL 333.7521(1)(f) states:
The following property is subject to forfeiture:
(f) Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance, an imitation controlled substance, or other drug in violation of this article that is traceable to an exchange for a controlled substance, an imitation controlled substance, or other drug in violation of this article or that is used or intended to be used to facilitate any violation of this article including, but not limited to, money, negotiable instruments, or securities. To the extent of the interest of an owner, a thing of value is not subject to forfeiture under this subdivision by reason of any act or omission that is established by the owner of the item to have been committed or omitted without the owner’s knowledge or consent. Any money that is found in close proximity to any properly that is subject to forfeiture under subdivision (a), (b), (c), (d), or (e) is presumed to be subject to forfeiture under this subdivision. This presumption may be rebutted by clear and convincing evidence.
Id. MCL 333.7104(2) provides, “ ‘Controlled substance’ means a drug, substance, or immediate precursor included in schedules 1 to 5 of part 72.” Or, put more simply, a “controlled substance” is an illegal drug.
516 US 442; 116 S Ct 994; 134 L Ed 2d 68 (1996).
MCL 600.3801 states:
Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons,... is declared a nuisance,.. . and all.. . nuisances shall be enjoined and abated as provided in this act and as provided in the court rules. Any person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or place used for any of the purposes or acts set forth in this section is guilty of a nuisance.
People v United States Currency, 158 Mich App 126, 130; 404 NW 2d 634 (1986) (“[T]he party asserting the claim has the burden of proving his case by a preponderance of the evidence. See Blue Cross & Blue Shield of Michigan v Governor, 422 Mich 1, 89; 367 NW 2d 1 (1985), reh den 422 Mich 1206 (1985), app dis 474 US [805]; 106 S Ct 40; 88 L Ed 2d 33 (1985).”).
In re Forfeiture of United States Currency, supra at 89, quoting United States v One 1978 Mercedes Benz, 4-Door Sedan, 711 F2d 1297, 1303 (CA 5, 1983) (emphasis added).
United States v $639,558, supra at 387 n 5.
The dsissent by Justice Maekman argues that “[b]ecause suppressed evidence is inadmissible for broader purposes,” a court may not consider the surrounding circumstances or implications of any suppressed evi dence. Post at 479-480. In support of this contention, the dissent cites People v LoCicero (After Remand), 453 Mich 496, 508; 556 NW2d 498 (1996), a criminal proceeding in which this Court held that “[t]he exclusionary rule forbids the use of direct and indirect evidence acquired from governmental misconduct, such as evidence from an illegal police search.” Yet the issue in LoCicero was whether a police officer had reasonable suspicion under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), to stop defendant’s vehicle. Because we concluded that the officer’s observations did not amount to a reasonable suspicion and therefore the stop violated the Fourth Amendment, we applied the exclusionary rule to suppress the illegally obtained evidence. LoCicero is thus distinguishable in that it does not address the application of the exclusionary rule in a civil forfeiture proceeding in which the illegally seized property is the “defendant.” Further, LoCicero does not hold that the identity of the defendant or the circumstances surrounding the existence of the defendant may not be considered when the defendant is illegally seized. implications and circumstances surrounding evidence that is the subject of forfeiture and that has been illegally seized.
The dissent implies that in determining that there was insufficient independent evidence to support a forfeiture, the District of Columbia Circuit Court of Appeals in United States v $639,558 did not permit the consideration of the “surrounding circumstances” of the illegally seized money; however, the circuit court, in fact, did not even rule on this issue because the prosecutor had already conceded that he could not proceed without the suppressed evidence. United States v $639,558, supra at 387.
In addition, the dissent asserts that the Fifth Circuit Court of Appeals in United States v “Monkey” also did not rely on the “surrounding circumstances” concerning suppressed evidence, “but rather held that a forfeiture was supported in spite of the suppression,” post at 482 (emphasis in original), because of independent evidence. Again, the dissent mischaracterizes the actual holding: the Fifth Circuit Court of Appeals did not rule on the question whether it could properly consider the “surrounding circumstances” of the suppressed evidence because it did not need to even reach that issue in order to decide the case.
Thus, contrary to the dissent’s assertions, neither United States v $639,558 nor United States v “Monkey” stands for the proposition that the circumstances surrounding the illegally seized evidence may not be considered to support a forfeiture. And, in fact, the dissent fails to cite even one case supporting its contention that a court may not consider the
2006 US Dist LEXIS 2370, *14 (D Ariz, January 23, 2006).
25 Id. at *15-16.
The Eleventh Circuit Court of Appeals has taken a commonsense approach in determining whether there is probable cause to establish forfeiture: “Finally, and most importantly we do not take an academic or theoretical approach. Instead we eschew clinical detachment and use a common sense view to the realities of normal life.” United States v $242,484 in United States Currency, 389 F3d 1149, 1167 (CA 11, 2004).
520 F Supp 675, 680 (ED Mich, 1981), aff'd 709 F2d 442 (CA 6, 1983).
Id.
The dissent, post at 481, claims that with the exception of our citation of United States v $22,287, supra, the forfeiture cases cited in our opinion are not in dispute and are “irrelevant.” Yet we note that while the dissent may not dispute the propositions for which these cases are cited, the parties do. Specifically, while the prosecutor has asserted that illegally seized evidence may be introduced into evidence for any purpose, some of the “irrelevant” cases we cite reject this assertion and establish that illegally seized evidence may only be offered for the purpose of establishing its existence and court’s jurisdiction over such evidence. See pp 458-460 of this opinion, discussing One 1958 Plymouth, supra; Lopez-Mendoza, supra; and United States v $639,558, supra.
United States v $67,220 in United States Currency, 957 F2d 280, 285 (CA 6, 1992), citing United States v $215,300, 882 F2d 417, 419 (CA 9, 1989). See also United States v $87,375 in United States Currency, 727 F Supp 155, 161 (D NJ, 1989) (“The fact of an extremely large amount of money by itself constitutes strong evidence that the money was furnished in exchange for illegal drugs. United States v $ 2,500, 689 F. 2d 10, 16 (2d cir. 1982)[.]”); United States v $84,615 in United States Currency, 379 F3d 496, 501-502 (CA 8, 2004) (“[P]ossession of a large amount of cash (here, nearly $ 85,000) is strong evidence that the cash is connected with drug activity.”); United States v $433,980 in United States Currency, 473 F Supp 2d 685, 691 (ED NC, 2007) (“[T]he additional circumstantial proof discussed above (particularly the large amount of the currency as well as its unusual packaging) persuades the Court that it is more likely than not that the $433,980 was substantially related to a drug offense . .. .” ).
31 See also United States v Parcels of Land, 903 F2d 36, 39-40 (CA 1, 1990) (“The sheer magnitude of Laliherte’s expenditures supports an inference that his property acquisitions were funded with the proceeds of drug trafficking; Laliberte’s millions of dollars in purchases far exceeded his reported average annual income of $27,690, and there was no other apparent legitimate source of money to account for this magnitude of expenditures. See, e.g., United States v $ 250,000, 808 F. 2d [895,] 899 [CA 1, 1987] (noting the absence of any apparent legitimate sources of income that could account for the property sought to be forfeited ....”).
32 The federal “probable cause” burden of proof has been replaced:
Forfeiture proceedings commenced prior to the effective date of CAFRA [Civil Assist Forfeiture Reform Act] (August 23, 2000) applied a lesser standard of proof — probable cause. See United States v. 5 S 351 Tuthill Road, 233 F.3d 1017, 1023 (7th Cir. 2000) (CAFRA “requires the government to prove the connection between the property to be forfeited and the drug activity by a preponderance of the evidence, rather than to prove merely probable cause to believe there is a connection.”). [United States v Funds in the Amount of $30,670, 403 F3d 448, 454 n 4 (CA 7, 2005).]
United States v $159,880 in United States Currency, 387 F Supp 2d 1000, 1015 (SD sIowa, 2005).
403 F3d 448 (CA 7, 2005).
While evidence of the money itself had been suppressed by the circuit court, the court allowed the prosecutor to question the claimant about the basis for its existence. When asked about where the $180,975 in cash came from, claimant said it was her money and she got a little bit of it from a friend, Todd Fletcher. She was not sure how much she got from Fletcher, nor did she know from where Fletcher obtained the money. She claimed that Fletcher gave it to her “throughout the years” and that she had been storing it in a “personal area.” With respect to the money’s appearance in the trunk of the rental car, she denied ever putting it in the trunk or having any knowledge of it being placed in the trunk. She claimed that the first time she observed the presence of the money was when she was stopped for speeding that day.
Claimant initially stated that she “had plans” to get a rental car sometime around September 28, 2002, to go to Indianapolis to “get a house” and that before September 28, 2002, she had “very frequently” gone to look for a house in Indianapolis. But when questioned about four instances before that date when she had rented cars, claimant could not remember on what date, if any, she would have used a rental car to go to Indianapolis. Further, claimant admitted that she took no luggage, clothing, or overnight bags with her on this trip to Indianapolis.
Claimant first testified that she was going to Indianapolis to see her sister-in-law, Betty Smith, to look for a house, but she later testified that she was actually there to see her brother, Richard Smith. When reminded of her earlier testimony about going to see Betty Smith to help her find a house, claimant stated, “Well, we had already got everything straight about the house.” Still later, claimant indicated that when she went to Indianapolis on September 28, she had already had contact with a realtor. When asked the name of the agent, she said, “Sam. ” When asked whether she had entered into a purchase agreement, her response was “Entered into a purchase agreement?” After the prosecutor explained what the agreement was, claimant said that she had not signed a purchase agreement but had settled on a price with “Sam” for “like 180 something.” Claimant could not say when she would have negotiated this price with the agent, and when asked the name of the agent’s office, she stated that it was “Morgan something.”
When questioned about her use of rental cars on July 5, July 20, July 27, and September 21,2002, and October 18,2002, she could not say what she had used the cars for, nor where she had driven, nor why the respective mileage amounts for each date were 787 miles, 558 miles, 647 miles, 125 miles, and 860 miles.
United States v $242,484, supra at 1167. | [
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Reported at 478 Mich 231. | [
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Memorandum Opinion. The single issue we consider in this case is whether the “frank communication” exemption, MCL 15.243(1)(m), of the Freedom of Information Act (FOIA), exempts communications and notes that are no longer preliminary to a final agency determination of policy or action, even if those communications and notes were preliminary at the time that they were made. The Court of Appeals held that the frank communication exemption does not protect from disclosure communications and notes that are no longer preliminary to a final agency determination of policy or action. We reject that holding. The phrase “preliminary to a final agency determination of policy or action” forms part of the statutory definition of a “frank communication.” The statutory definition, however, contains no reference to the timing of the FOIA request. Thus, it is only pertinent whether those communications and notes were preliminary to a final agency determination at the time they were created, not whether they were preliminary at the time the FOIA request was made. Accordingly, we reverse the Court of Appeals judgment and remand this case to the trial court for further proceedings consistent with this decision.
I. FACTS AND PROCEDURAL HISTORY
In May 2000, Detroit Police Chief Benny Napoleon directed Deputy Chief Walter Shoulders to head a three-person Executive Board of Review to investigate a perceived problem of police officer misconduct, particu larly by Officer Eugene Brown, and the department’s subsequent mishandling of investigations of that misconduct. In October 2000, the board completed and compiled its findings and recommendations in a written document known as the Shoulders Report. The Shoulders Report included information about the shootings, facts about Officer Brown’s background, training, and disciplinary history, and interviews from eyewitnesses, coworkers, and other persons.
In June 2002, plaintiff Diane Bukowski, a reporter with coplaintiff Michigan Citizen, sought a copy of the Shoulders Report through a FOIA request. Defendant denied the request, invoking exemptions under MCL 15.243(1)(b)(i) and (ii), and the frank communication exemption, MCL 15.243(1)(m). Plaintiffs subsequently filed suit against defendant, seeking the report pursuant to the FOIA. Both sides moved for summary disposition. Defendant conceded in the trial court that it was no longer relying on the exemption in MCL 15.243(1)(b) because the Wayne County Prosecutor had declined to file charges against Officer Brown. Defendant, however, continued to assert the frank communication exemption and also claimed that the report was exempt under the law enforcement personnel records exemption, MCL 15.243(s)(ix).
The trial court granted in part and denied in part the parties’ motions for summary disposition. It ruled that “the government has met its burden of proving that much of the Shoulders report is exempt and those portions of the report that are not specifically exempted and are pure and factual are discoverable.” It ordered the redaction of the deliberative portions of the Shoulders Report and ordered disclosure of the factual material to plaintiffs. The trial court denied plaintiffs’ request for an in camera inspection of the report.
Both sides appealed the trial court’s decision. The Court of Appeals, in an unpublished opinion per curiam, reversed the trial court and remanded for further proceedings. With respect to the frank communication exemption, the panel opined:
Plaintiff argues that, although the Shoulders Report may have been prepared as “preliminary to a final agency determination of policy or action,” the frank communications exemption does not apply because there is no evidence that the Shoulders Report is currently preliminary to any agency determination of policy or action. We direct the trial court to address this issue on remand. On remand, the court should take into account that MCL 15.243(1)(m) provides that the frank communications exemption applies only if the communications “are preliminary to a final agency determination of policy or action” (emphasis added), not “were preliminary to a final agency determina tion of policy or action.” Thus, if the Shoulders Report contains communications that are no longer preliminary to an agency determination of policy or action, the frank communications exemption does not apply to these communications. [Slip op at 5-6.]
The panel remanded so the trial court could apply the frank communication exemption consistent with its ruling and could separate the purely factual material in the process.
Defendant filed an application for leave to appeal in this Court. We ordered oral argument on the application, specifically requesting the parties to address
whether the Court of Appeals erred in instructing the Wayne Circuit Court, on remand, that the Freedom of Information Act “frank communications” exemption, MCL 15.243(1)(m), does not apply to communications that are no longer preliminary to an agency determination of policy or action, even if the communications were preliminary at the time that they were made. [477 Mich 960 (2006).]
II. STANDARD OF REVIEW
This Court reviews questions of statutory interpretation de novo. The goal of statutory interpretation is to give effect to the Legislature’s intent as determined from the language of the statute. In order to accom plish this goal, this Court interprets every word, phrase, and clause in a statute to avoid rendering any portion of the statute nugatory or surplusage. We give the words of a statute their plain, ordinary meaning unless the Legislature employs a term of art.
III. ANALYSIS
The frank communication exemption, MCL 15.243(1)(m), states in pertinent part:
(1) A public body may exempt from disclosure as a public record under this act any of the following:
(m) Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure .... [Emphasis added.]
In Herald Co, this Court examined the frank communication exemption. Drawing from the text of this provision and other portions of the FOIA, we set forth a framework for courts to apply the frank communication exemption. First, the public body seeking to withhold the document bears the burden of establishing the exemption. Second, the public record sought to be withheld from disclosure must meet the three-part statutory definition of a “frank communication”: (1) it is a communication or note of an advisory nature made within a public body or between public bodies, (2) it covers other than purely factual material, and (3) it is prehminary to a final agency determination of policy or action. Third, if the public record qualifies as a “frank communication,” the trial court must engage in the balancing test and determine if the public interest in encouraging frank communication clearly outweighs the public interest in disclosure. Finally, if the trial court determines that the frank communication should not be disclosed, the FOIA still requires the trial court to redact the exempt material and disclose the purely factual material within the document.
The Court of Appeals instructed the trial court that
the frank communications exemption applies only if the communications “are preliminary to a final agency determination of policy or action” (emphasis added), not “were preliminary to a final agency determination of policy or action.” Thus, if the Shoulders Report contains communications that are no longer preliminary to an agency determination of policy or action, the frank communications exemption does not apply to these communications. [Slip op at 6.]
The Court of Appeals misconstrued the frank communication exemption because the requirement that communications or notes “are preliminary to a final agency determination of policy or action” has nothing to do with the timing of the FOIA request. Rather, this phrase speaks to the purpose of the communications or notes at the time of their creation. The first sentence of MCL 15.243(1)(m) provides the definition of a “frank communication.” It qualifies what types of communications and notes are eligible for exemption under this provision. The phrase “are prehminary to a final agency determination of policy or action” modifies “communi cations and notes.” The inclusion of this limiting phrase signifies the Legislature’s intent to exclude from the ambit of the frank communication exemption those communications and notes that were not preliminary to a final agency determination of policy or action when they were created. Therefore, plaintiffs’ and Justice KELLY’s reliance on the Legislature’s use of the present tense “are” in that phrase is misplaced. Our reading of the statute gives effect to the present tense of the verb because the communications or notes “are preliminary to a final agency determination” at the time they are created.
Moreover, we find additional textual support in other FOIA exemptions where the Legislature drafted explicit time limits when an exemption ceases to protect a public record. For instance, MCL 15.243(1)(i) exempts “[a] bid or proposal by a person to enter into a contract or agreement, until the time for the public opening of bids of proposals, or . . . until the deadline for submission of bids or proposals has expired.” (Emphasis added.) Similarly, MCL 15.243(1)(j) exempts “Appraisals of real property to be acquired by the public body until” either “an agreement is entered into” or “three years have elapsed since the making of the appraisal, unless litigation relative to the acquisition has not yet terminated.” MCL 15.243(1)(p) exempts particular types of testing data developed by a public body except that the exemption ceases to apply “after 1 year has elapsed from the time the public body completes the testing.” The absence of similar explicit time limits in the frank communication exemption supplies further evidence that the Legislature intended this exemption to apply to communications and notes after the final agency determination of policy or action has been made.
For these reasons, we reject the Court of Appeals reading of the frank communication exemption. We reverse the judgment of the Court of Appeals on this issue, and we remand this case to the trial court for further proceedings consistent with this opinion.
Taylor, C.J., and Corrigan, Young, and Markman, JJ., concurred.
Officer Brown had been involved in the fatal shootings of three civilians and the wounding of a fourth in four separate incidents from 1995 to 1999.
MCL 15.243(1)(b)(i) and (ii) state, in pertinent part:
(1) A public body may exempt from disclosure as a public record under this act any of the following:
(b) Investigating records compiled for law enforcement purposes, but only to the extent that disclosure as a public record would do any of the following:
(i) Interfere with law enforcement proceedings.
(ii) Deprive a person of the right to a fair trial or impartial administrative adjudication.
Defendant also maintained that the Employee Right to Know Act, MCL 423.509(2), protected from disclosure certain information taken from Brown’s personnel file.
Bukowski v Detroit, unpublished opinion per curiam of the Court of Appeals, issued May 26, 2005 (Docket No. 256893).
The Court of Appeals also held that the trial court misapplied the burdens in the balancing test found in the personnel records exemption. It remanded the case to the trial court for proper application of the exemption.
Finally, the Court rejected plaintiffs’ argument on cross-appeal that the trial court erred in rejecting their requests for an in camera inspection of the Shoulders Report.
Herald Co v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 470; 719 NW2d 19 (2006).
Miller v Miller, 474 Mich 27, 30; 707 NW2d 341 (2005).
Herald Co, supra, 475 Mich at 470.
Veenstra v Washtenaw Country Club, 466 Mich 155, 160; 645 NW2d 643 (2002); MCL 8.3a.
Herald Co, supra, 475 Mich at 475.
The communications or notes, in addition to being “prehminary to a final agency determination of policy or action” must also be (1) of an advisory nature made within a public body or between public bodies that (2) covers other than purely factual material.
Justice Kelly argues that there was no longer a need for frank communications at the time of the FOIA request. However, before that determination is made by balancing the competing interests, a court must first consider whether “frank communications” are at issue. One part of the definition of a frank communication is that the communications and notes “are prehminary to a final agency determination” at the time they are created. Unless the communications and notes satisfy this part of the definition, the public body cannot successfully invoke this exemption.
Both sides present arguments unrelated to the statutory language at issue. Defendant argues that it would he poor public policy if the frank communication exemption ceased to apply to a public record once the agency makes its final determination. Plaintiffs argue that the legislative history behind the frank communication exemption supports their interpretation of the provision, and they draw parallels between this statute and similar provisions in the federal FOIA. Justice Kelly also relies heavily on legislative history, the federal FOIA, the “general purpose” of the FOIA to disclose public records, and the notion that FOIA exemptions are to be narrowly construed. As the plain language in the statute is sufficient to discern the Legislature’s intent and to resolve this case, we decline to consider these nontextual arguments.
Justice Kelly makes the astonishing argument that adherence to the statutory language makes a court “deliberately uninformed” and more prone to impose its policy preferences. Whether or not statutory construction is difficult, we are certain that, far and away, the most “rehable source” of legislative intent is the plain language of a statute. Judicial power is most menacing when a court feels free to roam in search of interpretive cues that are unmoored to the statutory language. Therefore, we are not inclined to inform ourselves of extratextual sources where the language of the statute is plain. When grammar is the constructive tool of choice, all can readily ascertain what a statute commands. But when extratextual tools are brought to bear on otherwise unambiguous language, only judges can say what the statute “means”— and then only after the fact. We prefer interpretive methods available to all. | [
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Leave to appeal granted at 477 Mich 927. The motion for leave to file a supplemental brief is granted. In light of the new issues being raised on appeal, the parties are directed to file additional supplemental briefs by August 1, 2007, addressing whether Metropolitan Council No 23 AFSCME v Center Line, 78 Mich App 281 (1977), correctly held that jurisdiction to enforce section 13 of Act 312, MCL 423.243, resides in the circuit court, and whether the Michigan Employment Relations Commission has primary jurisdiction to enforce section 13, see Travelers Ins Co v Detroit Edison Co, 465 Mich 185 (2001). The Court will determine whether to schedule reargument of the case next term after consideration of the briefs filed pursuant to this order. The Michigan Municipal League, the Michigan Association of Counties, Michigan AFSCME Council 25, and the Michigan State AFL-CIO are invited to file briefs amicus curiae. Other 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. Reported below: 271 Mich App 457. | [
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CAVANAGH, J.
We granted oral argument on the applications for leave to appeal and leave to file a cross-appeal in this case to determine whether an employee of a public body must report violations or suspected violations to an outside agency or higher authority to be protected by the Whistleblowers’ Protection Act (WPA), MCL 15.361 etseq. Because there is no language in the statute that indicates such a requirement, we hold that the WPA does not require that an employee of a public body report violations or suspected violations to an outside agency or higher authority to receive the protections of the WPA. We further hold, again on the basis of the statutory language, that there is no requirement that an employee who reports violations or suspected violations receives the protections of the WPA only if the reporting is outside the employee’s job duties. Accordingly, we affirm in part the opinion of the Court of Appeals, but we vacate that portion of the opinion that holds that there is question of fact concerning whether plaintiff Harold Nelthrope reported allegations to the Federal Bureau of Investigation because Nelthrope admitted in his deposition that he did not make this report.
I. FACTS AND PROCEEDINGS
Plaintiff Harold Nelthrope was a detective in the Executive Protection Unit (EPU) of the Detroit Police Department before he was transferred. Nelthrope reported allegations of illegal conduct and misconduct by fellow EPU officers and by Detroit Mayor Kwame Kilpatrick and his wife to the police department’s Professional Accountability Bureau. These allegations were summarized in a memorandum. Plaintiff Gary Brown, the deputy chief of the Professional Accountability Bureau, authorized a preliminary investigation into these allegations and prepared another memorandum regarding Nelthrope’s allegations. This memorandum was given to the police chief and then passed along to the mayor’s office. After the memorandum was submitted, Brown was discharged from his position as deputy chief of the EPU. Members of the mayor’s office then identified Nelthrope as being the source of the allegations of misconduct to the media, and the mayor publicly called Nelthrope a liar.
Brown and Nelthrope filed complaints against the city of Detroit and Mayor Kilpatrick, asserting claims of slander and violations of the WPA. Nelthrope also sued for intentional infliction of emotional distress. The circuit court granted the city’s motion for summary disposition of the slander claims on the basis of governmental immunity, but denied the mayor’s motion for summary disposition of the slander claims. It also denied defendants’ motions for summary disposition of the WPA claims. It also granted Nelthrope’s motion for partial summary disposition of the WPA claim, leaving only the issue of damages for the jury.
The Court of Appeals issued a published opinion that affirmed in part, reversed in part, and remanded for further proceedings. It reversed the circuit court’s denial of the mayor’s motion for summary disposition of the slander claims and reversed the circuit court’s grant of partial summary disposition to Nelthrope on his WPA claim. Brown v Detroit Mayor, 271 Mich App 692; 723 NW2d 464 (2006). This Court granted oral argument on the applications for leave to determine whether an employee of a public body must report to an outside agency or higher authority to be protected by the WPA. 477 Mich 1011 (2007).
II. STANDARD OF REVIEW
The proper interpretation of a statutory provision is a question of law that this Court reviews de novo. Lincoln v Gen Motors Corp, 461 Mich 483, 489-490; 607 NW2d 73 (2000).
III. ANALYSIS
This case involves an issue of statutory interpretation. The primary goal of statutory interpretation is to give effect to the intent of the Legislature. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). The first step is to review the language of the statute. Id. If the statutory language is unambiguous, the Legislature is presumed to have intended the meaning expressed in the statute and judicial construction is not permissible. Id.
MCL 15.362 of the WPA provides:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [Emphasis added.]
MCL 15.361(d) provides:
“Public body” means all of the following:
(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.
(ii) An agency, board, commission, council, member, or employee of the legislative branch of state government.
(Hi) A county, city, township, village, intercounty, intercity, or regional governing body, a council, school district, special district, or municipal corporation, or a board, department, commission, council, agency, or any member or employee thereof.
(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body.
(v) A law enforcement agency or any member or employee of a law enforcement agency.
(vi) The judiciary and any member or employee of the judiciary.
The statutory language in this case is unambiguous. The WPA protects an employee who reports or is about to report a violation or suspected violation of a law or regulation to a public body. MCL 15.362. The language of the WPA does not provide that this public body must be an outside agency or higher authority. There is no condition in the statute that an employee must report wrongdoing to an outside agency or higher authority to be protected by the WPA. In this case, Nelthrope and Brown reported their allegations of suspected violations to a public body. Nelthrope reported the suspected violations to the police department’s Professional Accountability Bureau, and Brown reported the suspected violations to the chief of police. A “public body” includes a “law enforcement agency or any member or employee of a law enforcement agency.” MCL 15.361(d)(v). It does not matter if the public body to which the suspected violations were reported was also the employee’s employer.
While we affirm the Court of Appeals conclusion that defendants were not entitled to summary disposition on whether Nelthrope and Brown were engaged in protected activity under the WPA, we note that the Court’s analysis of this issue addressed whether plaintiffs indeed reported the suspected violations to an outside agency. Because this requirement does not exist in the statute, it was unnecessary for plaintiffs to do so. Moreover, we vacate the Court’s holding that it should be left to a jury to determine if Nelthrope reported the suspected violations to the FBI, because this holding is not supported by the facts. In his deposition, Nelthrope admitted that he did not report his concerns to the FBI. Thus, because of Nelthrope’s admission, there is no factual question left regarding whether Nelthrope contacted the FBI. However, because the WPA does not require that a report be made to an outside agency, Nelthrope’s admission does not affect whether he can proceed with his WPA claim.
Finally, there is also no language in the statute that limits the protection of the WPA to employees who report violations or suspected violations only if this reporting is outside the employee’s job duties. The statute provides that an employee is protected if he reports a “violation or a suspected violation of a law or regulation or rule ....” MCL 15.362. There is no limiting language that requires that the employee be acting outside the regular scope of his employment. The WPA protects an employee who reports or is about to report a violation or suspected violation of a law or regulation to a public body. The statutory language renders irrelevant whether the reporting is part of the employee’s assigned or regular job duties.
IV CONCLUSION
The WPA does not require that an employee of a public body report violations or suspected violations to an outside agency or higher authority to receive the protections of the WPA. Further, the WPA does not provide that an employee who reports violations or suspected violations receives the protections of the WPA only if the reporting is outside the employee’s job duties. Accordingly, we affirm in part the opinion of the Court of Appeals, but we vacate that portion of the opinion that holds that there is question of fact regarding whether plaintiff Nelthrope reported allegations to the FBI. Because Nelthrope has admitted that he did not contact the FBI, there is not a factual question regarding this issue that remains to be decided by a jury.
Affirmed in part and vacated in part.
TAYLOR, C.J., and WEAVER, KELLY, CORRIGAN, YOUNG, and MArkman, JJ., concurred with CAVANAGH, J.
1 MCL 15.361(a) provides: “ ‘Employee’ means a person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied. Employee includes a person employed by the state or a political subdivision of the state except state classified civil service.”
We disapprove of dictum in a footnote that suggested the contrary in Dudewicz v Norris Schmid, Inc, 443 Mich 68, 77 n 4; 503 NW2d 645 (1993). The statement was dictum because it was unnecessary to the decision of the case. See Wold Architects & Engineers v Strat, 474 Mich 223, 232 n 3; 713 NW2d 750 (2006). We also caution that to the extent that caselaw has followed this footnote, it is overruled. See, e.g., Heckmann v Detroit Chief of Police, 267 Mich App 480, 495-496; 705 NW2d 689 (2005).
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YOUNG, J.
Plaintiff Lisa Brown was a security guard who had been assigned by her employer, Burns International Security (Burns), to provide security for defendant Samuel-Whittar Steel, Inc. Michael Brown (Brown), an employee of defendant and no relation to plaintiff, raped plaintiff at defendant’s Detroit facility. Brown had no prior criminal record, no history of violent behavior, and certainly no history indicating that he harbored a propensity to commit rape. However, plaintiff alleges that Brown routinely made crude, sexually explicit comments to her when they interacted at defendant’s facility. We are asked to consider whether defendant’s knowledge of these comments created a basis for holding defendant, Brown’s employer, liable for the rape committed by Brown.
We hold that where an employee has no prior criminal record or history of violent behavior indicating a propensity to rape, an employer is not liable solely on the basis of the employee’s lewd comments for a rape perpetrated by that employee if those comments failed to convey an unmistakable, particularized threat of rape. The Court of Appeals reliance on this Court’s decision in Hersh v Kentfield Builders, Inc, 385 Mich 410; 189 NW2d 286 (1971), was misplaced. Because Brown did not commit prior acts that would have put his employer on notice of Brown’s propensity to commit rape and Brown’s workplace speech was not predictive of this criminal act, defendant cannot be held liable for the rape.
We reverse the judgment of the Court of Appeals, reinstate the trial court’s order granting summary disposition in favor of defendant, and remand this case to the trial court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
Beginning in early 2000, plaintiff Lisa Brown worked for Burns as a security guard. During this time, Burns assigned plaintiff to work the night shift at defendant’s Detroit plant. Plaintiffs duties during the night shift included answering and transferring telephone calls, inspecting employees and truck drivers as they left the facility, and making nightly rounds through the plant.
Michael Brown worked for defendant as a foreman. The record does not disclose anything remarkable about Brown or his tenure with defendant. Brown did not have a criminal record until he pleaded no contest to attempted third-degree criminal sexual conduct arising out of his attack of plaintiff. At the time of the incident, Brown also worked the night shift.
Although it is unclear when the comments began, plaintiff alleges that Brown routinely made very crude, offensive sexual remarks to her. Plaintiff testified that on at least three occasions she complained about Brown’s offensive comments to one of defendant’s plant managers, Harlan Gardner. According to plaintiff, she last complained about Brown’s language in August or September 2000. Plaintiff also testified that she told another Burns security guard, Kim Avalon, about Brown’s lewd statements and that Avalon had been present during such an exchange between Brown and plaintiff. Plaintiff claims that the verbal harassment continued until the rape occurred in November 2000.
On November 17, 2000, plaintiff was raped by Brown. As plaintiff made her nightly rounds through the plant, she noticed that a door leading into the administrative offices was ajar. As she walked toward that part of the office building, plaintiff met Brown. Brown followed her into the offices and helped her turn off the lights and close the doors of the individual offices. After the office area was secured, Brown forced plaintiff into a nearby women’s restroom inside the building and raped her. Plaintiff immediately reported the incident to the police, who arrested Brown. Brown later pleaded no contest to a charge of attempted third-degree criminal sexual conduct. Understandably, plaintiff has testified that she suffered psychological trauma as a result of the rape and, as a result of this trauma, cannot return to work.
Plaintiff filed suit against defendant, Brown, and Harlan Gardner, seeking to recover damages caused by the rape, including damages for physical and psychological injury, lost wages, and medical expenses. She asserted two theories of liability against defendant: first, that defendant was vicariously hable for Brown’s actions under the doctrine of respondeat superior; and, second, that because she had complained about Brown’s lewd comments, defendant had notice of Brown’s propensity to commit violent acts and therefore defendant was negligent in failing to take reasonable steps to prevent the rape.
Defendant moved for summary disposition, which the trial court denied. After the parties conducted further discovery, defendant renewed its motion for summary disposition. The trial court granted this motion, ruling that there was no genuine issue of material fact concerning whether defendant was liable for the unforeseen criminal acts of Brown.
Plaintiff appealed to the Court of Appeals, challenging the dismissal of her negligence claim. In a published opinion, deciding what it labeled a case of first impression, the panel reversed the trial court’s order and held that plaintiff had presented a genuine issue of material fact that defendant knew or should have known of Brown’s criminal sexual propensities and, therefore, was liable under a negligence theory. The panel cited in support this Court’s decision in Hersh and its own decisions in Samson v Saginaw Professional Bldg, Inc, and Tyus v Booth, although it conceded that all of those cases involved individuals who had had a history of engaging in prior violent acts. It also recognized that those cases did not consider “whether sexually aggressive and predatory words are sufficient to put an employer on notice of its employee’s propensity for violence.” Nevertheless, the Court of Appeals determined that “the language and the circumstances were sufficient to create a jury question regarding whether [defendant] knew or should have known of Michael Brown’s violent propensities.”*
Defendant sought leave to appeal in this Court. We heard oral argument on the application. In lieu of granting leave to appeal, pursuant to MCR 7.302(G)(1), we reverse the judgment of the Court of Appeals.
n. standard of review
This Court reviews de novo a decision to grant a motion for summary disposition. We review a motion brought under MCR 2.116(C)(10) by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Whether one party owes a duty to another is a question of law reviewed de novo.
III. ANALYSIS
a. DEFENDANT OWED NO DUTY TO PLAINTIFF TO PREVENT THE RAPE BECAUSE DEFENDANT HAD NO NOTICE OF BROWN’S PROPENSITY TO RAPE
Defendant argues that the Court of Appeals erred because Brown’s words alone could not have put defendant on notice of Brown’s propensity to rape. Therefore, defendant argues that it owed no duty to plaintiff in this case. We agree.
In order to make out a prima facie case of negligence, the plaintiff must prove the four elements of duty, breach of that duty, causation, and damages. “The threshold question in a negligence action is whether the defendant owed a duty to the plaintiff.” “Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.” This Court has elsewhere defined “duty” as
a “ ‘question of whether the defendant is under any obligation for the benefit of the particular plaintiff and concerns ‘the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other.’ ” “ ‘Duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” [Buczkowski v McKay, 441 Mich 96, 100-101; 490 NW2d 330 (1992) (citations omitted).]
In Valcaniant v Detroit Edison Co, this Court described the factors that are relevant “[i]n determining whether a legal duty exists,” such as the
“foreseeability of the harm, degree of certainty of injury, closeness of connection between the conduct and injury, moral blame attached to the conduct, polity of preventing future harm, and. .. the burdens and consequences of imposing a duty and the resulting liability for breach.” [Id,., quoting Buczkowski, 441 Mich at 101 n 4 (citing Prosser & Keaton, Torts [5th ed], § 53, p 359 n 24).]
When performing an analysis of whether a duty existed, this Court considers the foreseeability of harm to the plaintiff, although the “ ‘mere fact that an event is foreseeable does not impose a duty’ ” on the defendant.
This case involves the initial question whether an employee’s criminal activity is foreseeable by his employer and whether the employer is liable for that criminal activity. In MacDonald v PKT, Inc, this Court dealt with the foreseeability of criminal acts committed by invitees and limited the duty owed by an invitor. We stated:
A premises owner’s duty is limited to responding reasonably to situations occurring on the premises because, as a matter of public policy, we should not expect invitors to assume that others will disobey the law. A merchant can assume that patrons will obey the criminal law. This assumption should continue until a specific situation occurs on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee. It is only a present situation on the premises, not any past incidents, that creates a duty to respond.
Subjecting a merchant to liability solely on the basis of a foreseeability analysis is misbegotten. Because criminal activity is irrational and unpredictable, it is in this sense invariably foreseeable everywhere. However, even police, who are specially trained and equipped to anticipate and deal with crime, are unfortunately unable universally to prevent it. This is a testament to the arbitrary nature of crime. Given these realities, it is unjustifiable to make merchants, who not only have much less experience than the police in dealing with criminal activity but are also without a community deputation to do so, effectively vicariously liable for the criminal acts of third parties.
As in MacDonald, similar concerns of foreseeability and duty arise in the negligent retention context when we consider whether an employer may be held responsible for its employee’s criminal acts. Employers generally do not assume their employees are potential criminals, nor should they. Employers suffer from the same disability as invitors when attempting to predict an employee’s future criminal activity.
The harm suffered by plaintiff in this case was a criminal rape. It is argued that this rape was a foreseeable result of Brown’s offensive speech. We disagree. Without question, Brown’s words were crude and highly offensive. Plaintiffs complaints to one of defendant’s plant managers that Brown’s comments were offensive and made her uncomfortable, when coupled with her request that defendant make Brown cease making such comments, gave defendant awareness of Brown’s propensity for vulgarity and arguably positioned her for remedies as provided in McClements v Ford Motor Co. However, an employer can assume that its employees will obey our criminal laws. Therefore, it cannot reasonably anticipate that an employee’s lewd, tasteless comments are an inevitable prelude to rape if those comments did not clearly and unmistakably threaten particular criminal activity that would have put a reasonable employer on notice of an imminent risk of harm to a specific victim. Comments of a sexual nature do not inexorably lead to criminal sexual conduct any more than an exasperated, angry comment inexorably results in a violent criminal assault.
We do not hold that an employee’s words alone can never create a duty owed by the employer to a third party. This obviously would be an entirely different case if Brown had threatened to rape plaintiff and defendant was aware of these threats and failed to take reasonable measures in response. Justice CAVANAGH has no use for a traditional test of foreseeability. He would allow a jury to impose liability on an employer if, in retrospect, somehow the harm was avoidable. However, we will not transform the test of foreseeability into an “avoidability” test that would merely judge in hindsight whether the harm could have been avoided. Brown’s comments, standing alone, were insufficient to place defendant on notice that Brown was a rapist.
To supply further context to Brown’s comments, it is noteworthy that not even plaintiff suspected that Brown would physically attack or rape her. While she testified at her deposition that she thought Brown was “weird,” she stated that she did not fear that he would perpetrate a physical assault. Plaintiff never testified that Brown had ever offensively touched her before November 17, 2000. It is inconceivable that defendant’s management officials should have anticipated or predicted Brown’s behavior any better than plaintiff, who directly witnessed the tone and tenor of Brown’s offensive statements and yet indicated that she never feared for her physical safety. Therefore, the lack of foreseeability of the harm in this case weighs definitively against imposing a duty on defendant.
Moreover, in addition to the lack of foreseeability of the harm, other important considerations that this Court identified in Buczkowski convince us that the relationship between plaintiff and defendant does not give rise to a duty under these circumstances. The moral blame attached to the conduct in question, a rape, rests with the perpetrator, Michael Brown, not with his employer. Also, there was a low degree of certainty of rape because there was not a “close” connection between Michael Brown’s statements and the resulting rape. And imposing a duty on defendant would not effectively further a policy of preventing future harm, and would impose an undue burden on defendant and all employers.
In our estimation, the legal duty articulated by the Court of Appeals would invite burdensome, over-inclusive employer regulation of employee workplace speech. Modern workplace speech is, at times, boorish and undesirable, but, depending on what precisely is said, it may be no predictor at all of future criminal behavior, as is the case here. As a general rule, an employer cannot accurately predict an employee’s future criminal behavior solely on the basis of the employee’s workplace speech. An employer diligently seeking to avoid such broad tort liability would inevitably err on the side of over-inclusiveness and cast a wide net scrutinizing all employee speech that could be remotely construed as threatening. However, as this Court astutely observed in Hersh, “ ‘not every infirmity of character’ ” is sufficient to forewarn the employer of its employee’s violent propensities. If every inappropriate workplace comment could supply sufficient notice of an employee’s propensity to commit future violent acts, a prudent employer operating under the duty fashioned by the Court of Appeals ought to treat every employee who makes inappropriate workplace comments as a potentially violent criminal. The additional social and economic costs associated with this type of monitoring, not to mention the burden on otherwise innocent employees who make inappropriate comments in the workplace but harbor no violent propensities, weigh further against imposing the duty created by the Court of Appeals.
b. HERSH DOES NOT PROVIDE SUPPORT FOR THE EXPANDED DUTY IMPOSED BY THE COURT OF APPEALS IN THIS CASE
In concluding that plaintiff created a jurysubmissible question of negligence, the Court of Appeals relied on this Court’s decision in Hersh. Regarding defendant’s duty to plaintiff, the panel opined that there is
no requirement, in Hersh or elsewhere, that an employer must know that the employee had a propensity to commit the actual crime that occurred. Rather, it is sufficient under Hersh if the employer knew of the employee’s “impropriety, violence, or disorder,” in short, whether the employer could have reasonably foreseen the employee’s “violent propensity,” that is, his or her “natural inclination or tendency” to violence. Given what Michael Brown said to Lisa Brown and what Lisa Brown reported to [defendant’s] plant manager, we conclude that a jury could find that [defendant] should have, under these circumstances, known of Michael Brown’s propensity for sexual violence. There was, therefore, a genuine issue of material fact, and the trial court erred when it granted summary disposition on Lisa Brown’s negligence claim. The question whether [defendant] knew or should have known of Michael Brown’s vicious propensities should not have been determined by the trial court as a matter of law, but by the jury. [Brown, 270 Mich App at 700-701.]
In Hersh, the plaintiff brought a negligence claim against the defendant, Kentfield Builders, Inc., arising out of an unprovoked attack inflicted by one of the defendant’s employees on the plaintiff. The plaintiff, a kitchen cabinet salesman, had scheduled a meeting with the president of Kentfield Builders at one of the defendant’s model homes, and while he waited to meet with the president, he was seriously injured by Benton Hutchinson, an unskilled laborer employed by the defendant who ten years earlier had been convicted of manslaughter. The plaintiff alleged that the defendant was liable for his injuries because it knew or should have known that Hutchinson harbored vicious and murderous propensities.
The plaintiff received a favorable jury verdict, which the Court of Appeals set aside because it found no evidence, notwithstanding Hutchinson’s prior manslaughter conviction, revealing that Hutchinson had “assaultive propensities” or that Kentfield Builders acted unreasonably in hiring him.
This Court unanimously reversed the judgment of the Court of Appeals and reinstated the jury’s verdict in Hersh, holding that whether Kentfield Builders knew or should have known of Hutchinson’s vicious propensities was a jury question that could not be decided as a matter of law. In its analysis, this Court quoted with approval a headnote from Bradley v Stevens, which stated that
“[a]n employer who knew or should have known of his employee’s propensities and criminal record before commission of an intentional tort by employee upon customer who came to employer’s place of business would be liable for damages to such customer.” [Hersh, 385 Mich at 412.]
This Court also quoted with approval the statement from 34 ALR2d 390, § 9, that
“[a]s has already been noted, a duty imposed upon an employer who invited the general public to his premises, and whose employees are brought into contact with the members of such public in the course of the master’s business, is that of exercising reasonable care for the safety of his customers, patrons, or other invitees. It has been held that in fulfilling such duty, an employer must use due care to avoid the selection or retention of an employee whom he knows or should know is a person unworthy, by habits, temperament, or nature, to deal with the persons invited to the premises by the employer. The employer’s knowledge of past acts of impropriety, violence, or disorder on the part of the employee is generally considered sufficient to forewarn the employer who selects or retains such employee in his service that he may eventually commit an assault, although not every infirmity of character, such, for example, as dishonesty or querulousness, will lead to such result.” [Hersh, 385 Mich at 412-413 (emphasis added).]
In its analysis, the panel below emphasized selective portions of this passage from Hersh. Quoting Hersh, the panel held that “it is sufficient under Hersh if the employer knew of the employee’s ‘impropriety, violence, or disorder,’ in short, whether the employer could have reasonably foreseen the employee’s ‘violent propensity,’ that is, his or her ‘natural inclination or tendency’ to violence.” What the panel omitted from its quotation from Hersh was the complete statement that “ ‘[t]he employer’s knowledge of past acts of impropriety, vio lence, or disorder on the part of the employee is generally considered sufficient to forewarn the employer . . .” This Court emphasized in Hersh that it is the employee’s known past acts that provide a basis for the employer’s knowledge of the employee’s “impropriety, violence, or disorder” and that those acts potentially place an employer on notice of the employee’s violent propensities.
Beyond the fact that the Court of Appeals misconstrued this portion of Hersh, Hersh is largely inapposite to this case. The employee in Hersh who assaulted the third party had a criminal record and had committed a prior, violent criminal act. The panel below acknowledged that Brown had not committed prior acts that would have put defendant on notice of Brown’s propensity to commit any criminal act, including rape. This fact is enough to distinguish this case from Hersh. The more important question, which Hersh did not address, is whether an employer is entitled to judgment as a matter of law when the sole basis for imposing liability for an employee’s rape of a third party is the employee’s lewd and offensive comments. As we discussed earlier, however weak or strong a prior act of violence may be as a predictor of future violence, the workplace speech in this case and the entire absence of any history of violence provide an insufficient predicate for imposing a duty of care of the kind the panel below recognized.
IV RESPONSE TO THE DISSENT
While we have sought to maintain in our duty analysis a key tort concept — foreseeability—Justice CAVANAGH in his dissent has swept this concept aside, concluding that any inappropriate workplace speech by an employee that is followed at some point by a criminal act is sufficient to create a jury-submissible question of negligent retention. In contrast, we have attempted to preserve a workable rule of foreseeability in this context, limiting employer liability to instances in which an employee has done or uttered something of which the employer has or should have knowledge that affords genuine notice of that employee’s criminal propensities. This is not a novel or surprising requirement. By eliminating this link of foreseeability, which is what Justice CAVANAGH advocates, an employer would be held strictly hable for employee misbehavior, whether foreseeable or not.
Justice CAVANAGH emphasizes that once defendant learned of Brown’s harassing comments, it was on notice of Brown’s “habits, temperament, or nature.” But this conclusion, of course, begs the question: Brown’s habits, temperament, or nature signified his propensity to do what? Did his words demonstrate his “habit, temperament, and nature” to continue to harass women, in particular plaintiff, with foul and unwanted sexual comments, or did they demonstrate his “habit, temperament, and nature” to commit violent rape? Justice CAVANAGH’s theory of liability is simply that defendant was on notice that Brown was a rapist because he made unwanted sexual comments. However, evidence of making unwanted sexual comments is not evidence of a propensity to commit violent rape. It simply cannot be the responsibility of the employer to determine with clairvoyant accuracy whether conduct of one sort might bear some relationship to conduct of a completely different sort. Rather, if an employee has not done or said anything that would afford a reasonable employer notice of a propensity to rape or commit some other type of criminal conduct, there is no sound legal or commonsense basis for the imposition of tort liability on an employer.
Justice CAVANAGH states, “I fail to see why it would not be more desirable to have employers scrutinize threatening speech than to ignore it when reported and have an innocent employee raped.” In light of the causal link, illogical as it is, that Justice CAVANAGH forges between defendant’s alleged “nonscrutiny” and the ensuing rape, it is worth asking Justice CAVANAGH to identify the purpose of the “scrutiny” that he urges. It is not clear whether proper scrutiny means that an employer must merely confirm that the employee’s speech was “crude,” or if the utterance of any crude statement is grounds for termination. It is equally unclear if, under Justice CAVANAGH’s approach, an employer could successfully “rehabilitate” its “tainted” employees, or if it must inevitably fire them. Finally, Justice CAVANAGH’s assertion offers no guidance concerning whether an employer’s duty to scrutinize is limited to employee speech or whether it could extend to an employee’s seemingly harmless but quirky behavior. These are but a few of the many practical questions Justice CAVANAGH’s theory of liability poses without answering.
If Justice CAVANAGH’s position were to prevail, the consequences would be considerable. Any rational employer would protect itself by refusing to hire or by terminating employees whose behavioral clues might allow courts, in hindsight, to hold the employer responsible if the employee commits a crime. In some instances, employers would find themselves in the unenviable position of seeking to protect themselves from liability for “negligent retention,” while also avoiding liability under various antidiscrimination laws governing employment.
In other instances, employees who have committed crimes in the past, but have presumably repaid their debts to society, would find it more difficult to secure employment, as would job applicants who have been identified by employers, or by the experts that employers would retain, as having the potential for negative behavioral actions, including crimes. It goes without saying that the effect of this new regime would, in both subtle and not-so-subtle ways, fall most heavily on social groups with the highest prevalence of past criminal behavior. Unlike Justice CAVANAGH, we refuse to create a new standard for imposing tort liability on employers and thereby render large numbers of job applicants effectively unemployable.
v CONCLUSION
We conclude that defendant may not be held liable for the rape perpetrated against plaintiff by Brown. The Court of Appeals expanded defendant’s duty on the basis of plaintiffs complaints that Brown’s sexually explicit and offensive comments made her uncomfortable. Defendant could not reasonably have anticipated that Brown’s vulgarities would culminate in a rape. We simply disagree with the Court of Appeals “that a jury could find that [defendant] should have, under these circumstances, known of Michael Brown’s propensity for sexual violence.” Accordingly, we reverse the judgment of the Court of Appeals, reinstate the trial court’s order granting summary disposition in favor of defendant, and remand this case to the trial court for further proceedings consistent with this opinion.
Taylor, C.J., and Corrigan and Markman, JJ, concurred with Young, J.
Plaintiff filed suit against Samuel-Whittar Steel, Michael Brown, and Harlan Gardner. A default judgment was entered against Brown when he failed to respond to plaintiffs suit. Plaintiff failed to serve Gardner. Neither Brown nor Gardner is part of this appeal. Therefore, we refer to Samuel-Whittar Steel singularly as “defendant.”
Although the dissent characterizes plaintiff as Brown’s “subordinate,” post at 574 n 3, we note that plaintiff and Michael Brown worked for different employers.
Plaintiff summarized the nature of these remarks when she testified at deposition that Brown “would tell me how he loved my long hair and how he would want to f*** me and pull my long hair and umm, just how I would walk through the plant and he liked how I shaked [sic] my a** and I had big t*** and just all the terrible things like that.”
Plaintiff testified that she told Gardner “how uncomfortable I felt about Michael Brown saying these things and [asked] if he could tell him to stop.”
The dissent’s general assertion that Brown made his comments to plaintiff “late at night when he was acting as her supervisor and no one else was around” and that “[h]e made them for no one to hear but her,” post at 578-579, requires the dissent to speculate about an undeveloped record. The record indicates that Brown and plaintiff worked during the afternoon shift in the same time frame before they both were reassigned by their respective employers to work during the night shift. Moreover, plaintiff testified at her deposition that Brown made comments to her during the afternoon shift. Thus, it is simply unclear from the record how many of Brown’s comments were made while the two worked during the night shift and how often he made his comments while the two were alone or in the presence of others.
Plaintiff did not pursue the dismissal of her respondeat superior claim, and it is not before us.
Brown v Brown, 270 Mich App 689; 716 NW2d 626 (2006).
44 Mich App 658; 205 NW2d 833 (1973).
64 Mich App 88; 235 NW2d 69 (1975).
Brown, 270 Mich App at 699 (emphasis in original).
Id. at 700.
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006).
Reed v Breton, 475 Mich 531, 537; 718 NW2d 770 (2006), citing Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Greene v AP Products, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006).
Fultz v Union-Commerce Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).
Id. at 463.
Id.
Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977).
470 Mich 82, 86; 679 NW2d 689 (2004).
Buczkowski, 441 Mich at 101, quoting Samson, 393 Mich at 406.
464 Mich 322; 628 NW2d 33 (2001).
22 Id. at 335 (citations omitted).
473 Mich 373; 702 NW2d 166 (2005). After the trial court adjudicated this case, this Court decided McClements, in which we held that a common-law claim for negligent retention cannot be premised on workplace sexual harassment, because a plaintiffs remedies for any act of sexual harassment in the workplace are those provided by the Civil Rights Act (CRA). Id. at 382-383. In McClements, we also clarified that a nonemployee may sue under the CRA if he or she is sexually harassed and the defendant affected or controlled a term, condition, or privilege of the worker’s employment. Id. at 389. As in McClements, the availability of this statutory remedy augers against further expanding the scope of common-law negligent retention to the facts of this case. We note, however, that plaintiff did not file a CRA claim in this case. The record is thus undeveloped with respect to whether such a claim would have succeeded here, and we decline to speculate further.
Although Justice Cavanagh attempts to equate Brown’s unwanted invitations with a declaration of intent to rape, none of the comments directed at plaintiff in this case approached a particularized threat of criminal violence. Not even plaintiff believed she was being threatened with potential rape.
This is not the first occasion in which Justice Cavanagh has articulated a position that would essentially eliminate foreseeability in favor of the imposition of strict liability on a business whenever a person is harmed. See Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 29; 664 NW2d 756 (2003) (Cavanagh, J., dissenting).
Contrary to our dissenting colleague, who finds that Brown’s comments were beyond boorish, we note that “boorish” accurately describes Brown’s words. “Boorish” is defined in Random House Webster’s College Dictionary (2001) as “unmannered; crude; insensitive.” The same dictionary defines “crude” as “vulgar” and “vulgar” as “indecent; obscene; lewd.”
Hersh, 385 Mich at 413, quoting 34 ALR2d 390, § 9.
Hersh v Kentfield Builders, Inc, 19 Mich App 43; 172 NW2d 56 (1969).
329 Mich 556; 46 NW2d 382 (1951). In Bradley, the defendant, the owner of an auto service shop, was sued hy a customer who had been physically attacked by an employee in an attempted rape. This Court affirmed a judgment of no cause of action that had been entered in favor of the defendant, agreeing with the trial court that the defendant would have been hable only if he knew or should have known of his employee’s propensities and criminal record. Significantly, although the defendant knew that the employee had been convicted of nonsupport, the record indicated that he had no knowledge that the employee had recently been charged with common-law rape.
Brown, 270 Mich App at 701.
Hersh, 385 Mich at 413, quoting 34 ALR2d 390, § 9 (emphasis added).
The Court of Appeals also relied on Samson v Saginaw Professional Bldg, Inc, 44 Mich App 658; 205 NW2d 833 (1973), and Tyus v Booth, 64 Mich App 88; 235 NW2d 69 (1975). The panel recognized that neither case provided direct support for its holding. Therefore, these cases are also not central to our analysis.
Samson did not address an employer’s negligent retention of an employee. It addressed a landlord’s duty to protect its tenants’ employees from individuals with violent propensities in the common areas of the building over which the landlord had responsibility. In Samson, the plaintiff worked in a building owned by the landlord defendant, which leased space to the plaintiffs employer. Another tenant in the building was the Saginaw Valley Consultation Center, an agency that provided outpatient care for released mental patients. The plaintiff was attacked by a mental patient as they rode the elevator in the building. A split Court of Appeals panel held that the landlord defendant owed a duty to take reasonable precautions to protect its tenants from mental patients with a propensity toward violence who would be visiting the consultation center.
Tyus involved an employer’s liability under a theory of negligent retention. In Tyus, the plaintiffs sued the owner of a service station whose employee assaulted the plaintiffs without provocation. One theory of liability advanced by the plaintiffs was that the owner had negligently exposed the public to an employee with known violent propensities. The Court of Appeals, citing Hersh, affirmed the trial court’s grant of summary disposition in favor of the defendant. Significantly, the panel noted that the defendant had no actual prior knowledge of the employee’s propensity for violence, and concluded that the defendant “was not required to conduct an in-depth background investigation of his employee.” Id. at 92. Moreover, it held that “[a]n employer is not absolutely liable for assault committed by his employee,” but only owes a duty “to use reasonable care to assure that the employee known to have violent propensities is not unreasonably exposed to the public.” Id.
Post at 577.
Indeed, Justice Cavanagh would impose a “Catch-22” duty on employers to detect their employees’ criminal propensities even though employers are not fully equipped to reasonably fulfill that duty. A part of the judicially created common law, a negligent retention action works interstitially in the gaps of the positive law enacted by our Legislature, such as the CRA, or applicable federal law enacted by Congress. If the Legislature has determined as a matter of public policy that fruitful information regarding previous employee “conduct” is off limits, thus hampering an employer from comprehensively investigating its employees’ criminal propensities, we ought not to broaden our common law and create insurmountable barriers for employers working to fulfill their common-law duties. See, e.g., MCL 37.2205a (prohibiting an employer from requesting, making, or maintaining a record of information regarding a misdemeanor arrest if a conviction did not result). This is especially true in Justice Cavanagh’s world, where virtually any piece of information then available to an employer about an employee’s speech, behavior, or actions could, when judged in hindsight, create a jury-submissible question of negligence if the employee later commits a criminal act. In light of the expansive tort liability to which Justice Cavanagh would expose employers, they should not face the challenge of accurately forecasting their employees’ future criminal acts when the Legislature has curtailed the scope of information at their disposal.
See, e.g., Human Rights Watch Press Backgrounder, Percentage of Adult Men (Age 18-64) Incarcerated, by Race, available at <http://www.hrw.org/backgrounder/usa/race/pdf/table3.pdf.> (accessed June 6, 2007); see also Incarcerated America, Human Rights Watch Backgrounder, available at <http://www.hrw.org/backgrounder/usa/ incarceration> (accessed June 6, 2007).
Once again, we in no way make light of the comments that Brown made in this case. Although these comments did not put defendant on notice of a propensity to rape, they were obviously exceedingly inappropriate and offensive. However, the issue here is not whether the comments were offensive, or a violation of our Civil Rights Act, see MCL 37.2103(i), but whether the comments placed defendant on notice that a rape was foreseeable and thereby made defendant liable for the rape.
Brown, 270 Mich App at 701. | [
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G. S. Allen, J.
Defendant, Goretski Construction Company, appeals by leave granted the Wayne Circuit Court order affirming a prior district court order. The previous district court order denied defendant’s motion to limit fines levied on overweight vehicles traveling through the city limits of Livonia. In this matter of first impression we are asked to determine whether the city of Livonia, a home rule city, had authority in May 1995 to assess fines exceeding $500 for overweight truck violations. We affirm.
On May 3, 1995, Livonia Police Officer David Studt observed a seven-axle Mack truck with a Fruehauf trailer heading south on 1-275 near Seven Mile Road. Tires on the three rear axles showed signs of carrying a load in excess of the city ordinance weight limits for the roadway; the fourth, or “lift” axle was in a raised position. Officer Studt motioned the driver to pull over and submit documents of identification and weight. The driver identified the truck as being owned by defendant and presented two weight slips, one indicating 124,900 pounds and the other 117,800 pounds. According to Officer Studt, both weights exceeded the maximum weight limits set forth in Livonia Ordinance No 10.54.240.
Because of the maximum-weight violations, Officer Studt directed the driver to proceed to a rest area in Canton Township for further weighing. Using portable scales and unassisted by anyone else, Office Studt weighed the truck and determined that its gross weight was 125,800 pounds. He also determined that the second, third, fifth, sixth, and seventh axles were all overweight. The fourth, or “lift” axle was not weighed because it was in a raised position. On the basis of these figures, Officer Studt issued an overweight fine in the amount of $6,980.
In bifurcated proceedings in the district court, defendant moved to limit the overweight fine to $500, which was denied. Defendant next argued that Officer Studt lacked authority to weigh the vehicle outside Livonia city limits and that the vehicle was improperly weighed. At a hearing in September 1994, Officer Studt testified that he chose to not weigh the vehicle on the side of the road where it was pulled over because a more accurate and quicker weighing could be done on the more even terrain at the Canton Township rest area. He explained that he did not weigh the fourth axle because it was not bearing any weight when the truck was first stopped. He admitted that he did not know what type of commodity the truck was carrying and that the load could have shifted when the truck was moved to the rest area At the conclusion of the hearing, defendant renewed its motion to limit the fine to $500. The district court ruled against defendant with regard to all issues raised.
Defendant raised the same issues on appeal to the circuit court, which affirmed the district court decision. The circuit court specifically ruled: (1) that the vehicle was in violation of the Livonia weight ordinance, (2) that the weighing process was proper and that failure to weigh the fourth axle was at most harmless error, and (3) that given the legislative history of the several amendments involved, the Legislature intended to permit Livonia to levy fines in excess of $500.
This Court originally denied leave to appeal in an order entered May 3, 1996 (Docket No. 192503), and thereafter denied rehearing of that decision in an order entered July 2, 1996. The Michigan Supreme Court, in lieu of granting leave to appeal, remanded to tliis Court for consideration as on leave granted. 454 Mich 905 (1997). Defendant raises three issues on appeal:
I. Whether the lower courts erred in determining that the vehicle was properly weighed by Officer Studt?
II. Whether the lower courts clearly erred in ruling that Livonia had authority to weigh the vehicle outside the city limits?
III. Whether the lower courts erred in determining that MCL 117.4i(k); MSA 5.2082(k) did not limit Home Rule Cities to levying fines of $500 or less for truck overweight violations?
We find no error in the circuit court decisions and affirm.
i
Defendant first argues that Officer Studt improperly weighed the vehicle by failing to weigh the fourth or “lift” axle as required by MCL 257.722(7); MSA 9.2422(7), which provides in relevant part:
For the purpose of enforcement of this act, the gross vehicle weight of a single vehicle and load or a combination of vehicles and loads, shall be determined by weighing individual axles or groups of axles, and the total weight on all the axles shall be the gross vehicle weight. [Emphasis supplied.]
We find no violation. Where, as here, the axle is uplifted, it carries no weight. Thus, Officer Studt did determine “the total weight on all the axles” as required by the statute. A failure to weigh axles separately is error. See People v M & B Equipment Co, 94 Mich App 439, 446-447; 289 NW2d 38 (1979). However, in that decision, the officer erroneously assumed that each of the three axles being used bore an equal amount of the load. The instant case involves the failure to weigh an axle that bore no weight and the officer quite properly concluded its weight was zero. Therefore, the circuit court properly ruled that failure to weigh the fourth axle was at most harmless error.
Defendant further claims that failure to weigh the fourth axle deprived it of a potential “misload” defense as provided in MCL 257.724(3); MSA 9.2424(3). That statute allows the trial court to lower a fine where the weight on certain axles exceeds the individual axle limit, but the total weight of the vehicle is within the applicable limits. In the instant case, defendant’s truck far exceeded the total weight limits and no distribution of weight would have precluded assessment of an overweight-vehicle fine. Accordingly, the weighing method employed by Officer Studt both compensated plaintiff for extra damage to its roadway and did so without depriving defendant of tire “misload” defense.
Lastly, defendant argues that a load shift, resulting in the calculation of a greater fine, occurred when the track was moved for weighing purposes from the location of the initial traffic stop to the Canton Townsi lip rest area. We find no merit in this claim because defendant failed to present any evidence in support of this theorem at the hearing in the district court.
n
Defendant next argues that plaintiff lacked authority to weigh defendant’s truck at the Canton Township rest area, which is outside the city limits of Livonia. We disagree. Livonia Ordinance No 10.54.240 parallels the language of MCL 257.724(1); MSA 9.2424(1) and describes the procedure for stopping vehicles for weighing as follows:
A police officer or a duly authorized agent of the state transportation department or a county road commission having reason to believe that the weight of a vehicle and load is unlawful may require the driver to stop and submit w a weighing of the vehicle by either portable or stationary scales approved and sealed by the department of agriculture as a legal weighing device, and may require that the vehicle be driven to the nearest weighing station of the state transportation department... to determine whether the conveyance is loaded in conformity with this chapter. [Emphasis supplied.]
Defendant erroneously claims that Officer Studt violated the ordinance because he neither weighed the vehicle at the site of the initial stop nor directed the driver to a state-operated weighing station. Nothing in the ordinance mandates that the weighing occur at the place of the initial stop. Instead, the language “may require the driver to stop and submit to a weighing of the vehicle” opens the door to a weighing outside the jurisdictional limits of the jurisdiction where the initial stop occurred. Furthermore, although the Canton Township rest stop is not a state-operated weighing station, it was purposely equipped with specially constructed cut-outs, made on a level surface, on which portable scales could be placed for accurate and speedy vehicle weighing. Finally, as recognized by the circuit court, conducting the weighing at the Canton Township rest area (instead of along I-275) increased the safety to the motoring public. Accordingly, MCL 257.724(1); MSA 9.2424(1) would not prevent Officer Studt from weighing defendant’s truck at the Canton Township rest area, instead of within the city limits of Livonia at the site of the initial stop.
Defendant also claims that the weighing of the vehicle outside the officer’s jurisdictional limits violated MCL 764.2a; MSA 28.861(1). We disagree. That statute provides:
A peace officer of a county, city, village, or township of this state may exercise authority and powers outside his own county, city, village, or township, when he is enforcing the laws of this state in conjunction with the Michigan state police, or in conjunction with a peace officer of the county, city, village, or township in which he may be, the same as if he were in his own county, city, village, or township.
In the instant case, the initial traffic stop occurred within the officer’s jurisdiction. Defendant does not contest the initial stoppage or the validity of defendant’s own weight slips that clearly disclosed an overweight violation. The subsequent weighing in Canton Township was in essence part of an investigatory process to determine the size of the violation and the consequent fine. Such investigative techniques are entirely proper where the initial stoppage occurred wdthin the officer’s jurisdiction.
Defendant’s reliance on People v Meyer, 424 Mich 143; 379 NW2d 59 (1985), and Coleman v Bolton, 24 Mich App 547; 180 NW2d 319 (1970), is misplaced. Both Meyer and Coleman involved situations where the officers’ initial actions occurred in areas outside their respective jurisdictions. As previously discussed, the initial stoppage herein occurred in the city of Livonia, which is wdthin Officer Studt’s jurisdiction. Moreover, even if Officer Studt did violate MCL 764.2a; MSA 28.861(1) by weighing the vehicle in Canton Township after making the initial stop in Livonia, the officer’s testimony would still be admissible and the citation against defendant would continue to be valid. See People v Clark, 181 Mich App 577, 580-582; 450 NW2d 75 (1989). Therefore, the lower court did not err in refusing to dismiss the charges against defendant on this basis.
m
Defendant’s final argument is that plaintiff, a home rule city, lacked authority to impose an overweight fine in excess of $500. We again disagree. Before 1994, the Home Rule City Act, MCL 117.1 et seq.) MSA 5.2071 et seq., limited fines that a city could collect for an ordinance violation to $500. Serious challenges to the $500 limitation, as applied to vehicle overweight violations, surfaced in 1991. See Huron Twp v City Disposal Systems, Inc, 201 Mich App 210; 505 NW2d 897 (1993). Municipal officials, concerned with the potential loss of revenue if overweight fines were restricted to $500, sought redress from the Legislature.
The Legislature responded with seven corrective acts giving authority to several units of government to impose fines exceeding $500 for various infractions, including truck overweight violations. 1994 PA 17, effective May 1, 1994, specifically applied to home rule cities, such as Livonia. The highlighted language amended the act to allow home rule cities to provide in their charters:
(k) For the punishment of persons who violate city ordinances other than ordinances described in section 41(1), (2), or (3) [MCL 117.41(1), (2), or (3); MSA 5.2083(2)(1), (2), or (3)]. However, the penalty for a violation of such a city ordinance shall not exceed a fine of $500.00, or imprisonment for 90 days, or both. [MCL 117.4i(k); MSA 5.2082(k).]
1994 PA 17 also added the following new provision to the act:
(1) Consistent with any of the following statutes and whether or not authorized by the city charter, the legislative body of a city may adopt an ordinance that designates a violation of the ordinance as a civil infraction and provides a civil fine for that violation:
(a) The Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being sections 257.1 to 257.923 of the Michi gan Compiled Laws. [MCL 117.41(1)(a); MSA 5.2083(2)(1)(a). ]
On July 21, 1994, just eighty-one days after 1994 PA 17 became law, the Legislature passed another statute that also amended § 4i of the act. 1994 PA 313, known as the “Public Nudity Bill,” amended the authority of home rule cities to regulate the display of female breasts not otherwise incidental to breastfeeding. Nothing in the legislative history of 1994 PA 313 referred to 1994 PA 17 or to the newly conferred authority of home rule cities to levy fines exceeding $500 for vehicle overweight violations. Nevertheless, the published text of 1994 PA 313 omitted the highlighted language added by 1994 PA 17. In short, 1994 PA 313 sub silentio struck out the newly created authority of home rule cities to levy fines exceeding $500 for Michigan Vehicle Code violations and relumed MCL 117.4i(k); MSA 5.2082(k) to its former language.
It is the Legislature’s removal in 1994 PA 313 of all reference to the home rule cities’ authority to levy fines in excess of $500 in certain situations, conferred by 1994 PA 17, upon which defendant principally relies to claim error in the instant case. Defendant argues there was nothing vague or ambiguous about the language of MCL 117.4i(k); MSA 5.2082(k) when the fine was levied in May 1995, and that therefore judicial construction was precluded.
We agree with defendant that judicial construction is generally neither necessary nor permitted when a statute is clear and unambiguous. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). However, literal construction of a statute that would produce absurd and unjust results clearly inconsistent with the purposes and policies of the statute should be avoided. Rowell v Security Steel Processing Co, 445 Mich 347, 354; 518 NW2d 409 (1994).
A literal construction of MCL 117.4i(k); MSA 5.2082(k) would lead to such absurd and unjust results. Id. 1994 PA 17 did more than merely add the language to MCL 117.4i(k); MSA 5.2082(k) that authorized home rule cities to provide for the levy of certain fines within their charters. It also added new section MCL 117.41(a); MSA 5.2083(2)(a), which clearly authorized home rule cities to charge overweight vehicle fines consistent with the Michigan Vehicle Code, “whether or not authorized by the city charter . . . .” Livonia did enact such an ordinance and defendant does not argue that the fine was levied in a manner inconsistent with the Michigan Vehicle Code.
Furthermore, the primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994), cert den sub nom Michigan v Caruso, 513 US 1121; 115 S Ct 923; 130 L Ed 2d 802 (1995); Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). A legislative amendment made soon after a controversy arises can be regarded as an expression of the Legislature’s interpretation of the original act. Detroit v Walker, 445 Mich 682, 697; 520 NW2d 135 (1994).
Here, we are guided in our interpretation by the Legislature’s actions once the omission caused by 1994 PA 313 was discovered. The Legislature enacted 1996 PA 179 on April 19, 1996. That act reenacted the very language provided by 1994 PA 17, but omitted by 1994 PA 313. Senate bill analysis of the statute discloses that when the Legislature passed the “Public Nudity” bill (1994 PA 313), it had no intention of removing the authority granted cities by 1994 PA 17 to levy fines in excess of $500 for overweight vehicle violations:
A package of bills enacted early in 1994 provides for the enforcement and adjudication of “municipal civil infractions” by local units of government. . . . This package includes Senate Bill 736 (Public Act 17 of 1994), which made these changes in the Home Rule City Act, and permitted civil infraction fines to exceed the Act’s maximum $500 fine for city ordinance violations. Later in 1994, another package of bills was enacted to permit cities, villages, and townships to regulate or prohibit the public display of a female’s breast. One of those bills, Senate Bill 107 (Public Act 313 of 1994), amended the Home Rule City Act. That bill, however, failed to include language added by Public Act 17 making an exception for civil infractions to the Act’s maximum fine provision. As a result, violations designated as civil infractions, or municipal civil infractions, by a home rule city became subject to the $500 maximum fine. Since this change apparently was the result of an inadvertent drafting error, it was suggested that the exception for civil infraction fines be reinstated. [Senate Bill Analysis, SB 667, July 3, 1996. Emphasis supplied.]
By enacting 1996 PA 179, the Legislature made it clear that the omission in 1994 PA 313 of language added to § 4i of the Home Rule Cities Act by 1994 PA 17 was unintentional. Limiting the overweight fine to $500 because of an inadvertent drafting error would lead to an absurd and unjust result and should therefore be avoided. Rowell, supra. Accordingly, the circuit court properly determined that Livonia had authority to levy a fine in excess of $500 for an overweight-vehicle violation.
Lastly, we reject defendant’s claim that if this Court found MCL 117.4i(k); MSA 5.2082(k) ambiguous, we would be prohibited from interpreting a penal statute against defendant. As plaintiff correctly notes, that section is a municipality enabling statute, not a penal statute. Therefore, defendant’s argument must fail.
For the foregoing reasons and having found no error in regard to the three issues raised, the judgment of the circuit court is affirmed. No costs, a question of public importance being involved.
That statute provides in relevant part:
[T]he court shall have discretionary power as to the amount of the civil fine within the schedule provided by this subsection and may impose the civil fine provided in section 907(3) for a civil infraction where, at the time of the violation, either the motor vehicle .. . did not exceed the total weight which would be lawful for each unit by a proper distribution of the load upon the various axles supporting each unit. | [
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Per curiam.
Following a jury trial, defendant was convicted of carrying a concealed weapon, MCL 750.227(1); MSA 28.424(1), possession of marijuana, MCL 333.7403; MSA 14.15(7403), and operating a motor vehicle without security, MCL 500.3102; MSA 24.13102. He was sentenced to three years’ probation. Defendant, who stipulated at trial that on the day in question he possessed marijuana and operated his motor vehicle without insurance, appeals as of right only his CCW conviction. We reverse defendant’s conviction and remand for a new trial.
Defendant argues that because MCL 750.227(1); MSA 28.424(1) does not define the term “stabbing instrument,” the statute is unconstitutionally over-broad and void for vagueness. The statute provides:
A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person. [MCL 750.227(1); MSA 28.424(1) (emphasis supplied). See 1986 PA 8, § 2.]
We review such challenges de novo on appeal. People v Hubbard (After Remand), 217 Mich App 459, 484; 552 NW2d 493 (1996). Because statutes are presumed constitutional, we must construe the statute as constitutional unless its unconstitutionality is clearly apparent. Id. at 483-484.
“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” People v White, 212 Mich App 298, 312; 536 NW2d 876 (1995) (quoting Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 [1983]). Defendant points out that numerous items beyond those defined in the statute could be used to stab, e.g., a fork, kitchen knife, or stick. Therefore, defendant argues that persons of common intelligence would guess at the meaning of the phrase “stabbing instrument” and would differ regarding the application of this phrase.
According to our Supreme Court in People v Lino, 447 Mich 567, 575; 527 NW2d 434 (1994), vagueness challenges that do not implicate First Amendment freedoms are examined in the light of each particular case. Here, two police officers testified at defendant’s trial that during their inventory search of defendant’s vehicle after a routine traffic stop, they discovered two double-edged nonfolding knives that were each approximately fourteen inches in length. Defendant testified that he used the knives in the sport of knife throwing and produced an expert who testified that the construction of such knives renders them difficult to use as stabbing instruments. Under cross-examination, the expert admitted that throwing knives, like any knives, could be used as weapons.
On its face, MCL 750.227(1); MSA 28.424(1) may permit impermissible interpretations, but the statute can be narrowly construed so as to provide fair notice of the prohibited conduct and render it sufficiently definite to avoid vagueness. People v Gilliam, 108 Mich App 695, 703-704; 310 NW2d 843 (1981). A statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning. People v Cavaiani, 172 Mich App 706, 714; 432 NW2d 409 (1988). Here, we find that the phrase “double-edged nonfolding stabbing instrument of any length” speaks for itself because it contains words with common and generally accepted meanings; therefore, ordinary people can understand what conduct the statute prohibits. Accordingly, reversal is not required on this basis because defendant has not overcome the presumption that the statute is constitutional.
Our resolution of defendant’s constitutional challenge to the statute logically leads to defendant’s next argument on appeal, which is whether the trial court erred in instructing the jury regarding the prosecu tion’s burden in proving the elements of the ccw charge. Jury instructions must include all elements of the crime charged and must not exclude consideration of material issues, defenses, and theories for which there is evidence in support. People v Daniel, 207 Mich App 47, 53; 523 NW2d 830 (1994). Here, the prosecution’s theory of the case was that defendant carried a dangerous stabbing weapon. The prosecution did not introduce evidence that defendant carried the knives with the intent to use them as weapons of assault or defense. Defendant introduced evidence that the knives in question were not dangerous stabbing weapons, but instead were throwing knives designed for a peaceful purpose. See People v Vaines, 310 Mich 500, 504-506; 17 NW2d 729 (1945). Specifically, defendant submitted the expert’s testimony that at least three characteristics distinguish throwing knives: first, a throwing knife is heavily weighted to the front so the knife flies point first; second, the blade of a throwing knife protrudes from the base of the handle to protect the handle if the butt of the knife strikes the target first; and third, a throwing knife is constructed without a cross guard, a component that is found on other knives to prevent the hand from slipping down and being cut on the blade.
The trial court instructed the jury in part that it had to find defendant guilty of the CCW charge if it found that “there was a double-edged nonfolding stabbing instrument which was in a vehicle that the defendant was in.” See CJI2d 11.2(4). On the facts of this case, this instruction was ambiguous because it did not specifically require the jury to consider and decide whether the knives in question were dangerous instruments as “double-edged nonfolding stabbing instruments.” Rather, the instruction impliedly assumed an element of the charge against defendant, i.e., that the knives in question were “double-edged nonfolding stabbing instruments.” Therefore, the instruction unfairly prejudiced defendant by preventing the jury from considering his theory of the case that the knives were designed for a peaceful purpose.
If the instructions confused the jury to the extent that the parties’ theories and the applicable law were not fairly and adequately presented to the jury, then a new trial must be granted. Jennings v Southwood (After Remand), 224 Mich App 15, 22-23; 568 NW2d 125 (1997). See, e.g., People v Mack, 64 Mich App 587, 590-595; 236 NW2d 523 (1975). Here, determining whether defendant’s knives were “double-edged nonfolding stabbing instruments” was critical because it constituted the threshold element of the ccw charge against defendant. Therefore, the instructional error was not harmless, and, consequently, defendant is entitled to a new trial with appropriate instructions so that a jury may fairly and intelligently determine whether the prosecution proved that defendant carried a dangerous weapon.
Under MCR 2.516(D)(4), a trial court may give additional instructions concerning an area that was not covered in the standard jury instructions as long as these additional instructions accurately state the law and are applicable, concise, understandable, conversational, unslanted, and nonargumentative. Jennings, supra at 22. At retrial, the instructions to the jury in this case must specifically require the jury to consider and decide as a separate element whether the knives in question are designed to be dangerous weapons within the meaning of the statute because they are double-edged nonfolding stabbing instruments. If the jury decides that threshold element in the affirmative, then the jury must next consider and decide the remaining elements: whether the “double-edged nonfolding stabbing instrument” was in a vehicle that defendant was in, whether defendant knew the weapon was there, and whether defendant took part in carrying or keeping the weapon in the vehicle.
Given our resolution of these issues and the resulting remand for a new trial, we decline to address defendant’s argument that the prosecution presented insufficient evidence from which the jury could find him guilty beyond a reasonable doubt of the CCW charge. However, because defendant’s argument about voir dire concerns an issue likely to reoccur at a retrial, we briefly address the merits of that argument. Defendant argues that the trial court impermissibly limited voir dire by defense counsel by failing to permit defense counsel to fully question the jurors about their attitudes toward the ccw statute. We disagree. The scope of voir dire examination of prospective jurors is within the discretion of the court and will not be set aside absent an abuse of that discretion. MCR 6.412(C)(1); People v Harrell, 398 Mich 384, 388; 247 NW2d 829 (1976). Here, we find that the trial court did not abuse its discretion in refusing to allow defense counsel “to go on a dissertation on the law.” Indeed, counsel has no right to conduct voir dire and is only granted such an opportunity with the court’s permission. MCR 6.412(C)(2).
Reversed and remanded for a new trial. | [
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Bandstra, J.
Violet Moeller (Moeller) was injured in defendant church’s parking lot before an evening Bible study session when she tripped over a concrete tir e stop. Moeller and her husband filed suit, claiming that defendant was negligent by, inter alia, failing to properly light the parking lot and failing to properly mark or position the tire stops that were placed there. The jury returned a verdict of no cause of action in favor of defendant.
Plaintiffs raise a number of issues on appeal, one of which is outcome-determinative. The trial court concluded that Moeller was a licensee, rather than an invitee, and instructed the jury accordingly with respect to the duty of care that defendant owed to her. Because there is no factual dispute concerning the purpose for which Moeller was on defendant’s premises, Moeller’s status as an invitee or licensee is a question of law that we review de novo on appeal. Reid v Norfolk & W R Co, 964 F Supp 1249, 1252 (CD Ill, 1997) (“A plaintiff’s status is a question of law if there are no factual questions present.”); Swanson v McKain, 59 Wash App 303, 307; 796 P2d 1291 (1990) (“Where, as here, the facts surrounding the complaining party’s entry upon the property in question are not contested, the determination of the legal status of that entrant as either an invitee, licensee or trespasser is a question of law.”); In re Hamlet (After Remand), 225 Mich App 505, 521; 571 NW2d 750 (1997) (questions of law are reviewed de novo); cf. White v Badalamenti, 200 Mich App 434, 436; 505 NW2d 8 (1993) (the issue of the visitor’s status as an invitee or licensee is a question of fact if there is a factual dispute regarding the purpose for which the visitor is on the premises). We conclude that the trial court erred in deciding that Moeller was a licensee and remand for a new trial.
We begin our analysis with the definition of “invitee.” Consistent with early English precedents, most American jurisdictions afforded invitee status to persons entering upon the property of another for business proposes and, accordingly, granted them greater protections than those afforded to licensees. Prosser & Keeton, Torts (5th ed), § 61, pp 419-420. This limited definition of “invitee” was adopted in the first Restatement of Torts. Id. at 420. In contrast, the second Restatement of Torts includes a second category of persons as “invitees,” those who come onto property not for a business purpose but rather because of a public invitation extended by the property owner. Id. at 422.
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. [2 Restatement Torts, 2d, § 332, p 176.]
This section of the second Restatement of Torts was cited by our Supreme Court in Preston v Sleziak, 383 Mich 442, 450; 175 NW2d 759 (1970). At issue in Preston was the status of social guests invited to a private cottage for a weekend visit. Id. at 444-445. Relying on comments under § 332 of the second Restatement of Torts, the Court reasoned that a social guest is a licensee rather than invitee. Id. at 450-451. In contrast to a “public invitee,” as that term is used in the second Restatement, a social guest invited to a private residence “does not come as a member of the public upon premises held open to the public . . . .” Id. at 451.
The Court in Preston did not explicitly state that it was adopting the second Restatement of Torts provision, including public invitees among those granted invitee status, as controlling Michigan authority. However, the Court did state that the second Restatement definition of “invitee,” including the “public invitee” alternative, “fairly represents the law of this state pertaining to what constitutes the legal status of an invitee.” Id. Further, the Court’s analysis of the question before it assumed that persons entering property pursuant to a public invitation were to be afforded invitee status, although the Court held that a social guest did not fit into the public invitee category. On the basis of our reading of Preston, we conclude that § 332 of the second Restatement of Torts applies in Michigan and that, for purposes of the present analysis, an “invitee” includes a “public invitee” as defined in the second Restatement.
In Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347, 359; 415 NW2d 178 (1987), the Supreme Court stated: “Essentially, invitee status requires . . . benefit for the occupant.... The entrant must be on the premises for a purpose directly or indirectly related to the owner’s or occupant’s business." Defendant argues that Kreski thus rejected Preston’s inclusion of “public invitees” within the definition of “invitees.” We disagree. The Court in Kreski cited Preston and the second Restatement of Torts definition of invitee with approval. Id. Further, nothing in the Kreski analysis of the question presented, i.e., the status to be afforded firefighters, suggests that the Court intended to limit “invitees” to those entering premises with a business purpose. Kreski did not consider whether firefighters enter property for the benefit of the occupant or for a purpose related to the owner’s business. Instead, the Court concluded that firefighters do not cleanly fit into the invitee cat egory because they do not enter property by invitation, express or implied. Id. That analysis applies equally well to either the “public invitee” or “business visitor” definitions found in the second Restatement and adopted in Preston-, both definitions apply only to persons “who [are]. invited to enter or remain on land.” Preston, supra at 450. Accordingly, notwithstanding the statement relied on by defendant, we do not conclude that Kreski undermines the clear import of Preston that “invitees” include both “public invitees” and “business visitors.”
Having determined that Michigan law includes “public invitees” within the category of “invitees,” we consider whether a church visitor like Moeller in this case is a “public invitee.” Although we could find no Michigan precedent considering this question, courts in other jurisdictions that have considered the question uniformly conclude that church visitors are “public invitees.” E.g., Clark v Moore Memorial United Methodist Church, 538 So 2d 760, 763-764 (Miss, 1989); Fleischer v Hebrew Orthodox Congregation, 539 NE2d 1 (Ind, 1989); Stevens v Bow Mills Methodist Church, 111 NH 340; 283 A2d 488 (1971). In Clark, supra at 764, the court concluded:
Members of religious associations, in general . . . fall within the category of “public invitees,” defined in . . . § 332(2) of the Restatement .... Religious bodies do expressly and impliedly invite members to come and attend their services and functions. They hold their doors open to the public. . . . Therefore, a [visitor] who does not exceed the scope of a church’s invitation, is an invitee while attending a church for church services or related functions.
For similar reasons, we conclude that Moeller in this case was a “public invitee” as that term has been defined by the second Restatement of Torts and adopted in Preston. Accordingly, Moeller is an “invitee” for purposes of determining the duty that defendant owed to Moeller while attending the Bible study session.
The trial court’s incorrect decision, that Moeller should be considered a “licensee,” resulted in improper jury instructions and inappropriate decisions regarding the evidence that was relevant and admissible at trial. Accordingly, we conclude that this matter must be reversed and remanded for a new trial. It is unnecessary for us to consider the other questions raised on appeal. We do not retain jurisdiction.
Although Violet Moeller was an original plaintiff in this matter, she is now deceased, and Jill Stitt, as personal representative for Moeller’s estate, has been substituted for Moeller for purposes of this appeal. Further, Gilbert Moeller’s claim is derivative of his wife’s claim.
In Socha v Passino, 105 Mich App 445; 306 NW2d 316 (1981), another panel of our Court considered Preston and came to a more confusing conclusion. While stating that the Court in Preston “adopted” the second Restatement definition, including its “public invitee” alternative, the panel in Socha also defined an invitee as “one who is on the owner’s premises for a purpose mutually beneficial to both parties .. . [and where] the visit may reasonably be said to confer or anticipate a business, commercial, monetary, or other tangible benefit to the occupant.” Id. at 447-448. Socha has thus been cited as indicating that Michigan law limits the definition of “invitee” to those who come upon the land of another for some “business” that is “of at least potential pecuniary profit to the possessor.” Prosser, supra at 420 & n 18. We are not bound by Socha, MCR 7.215(H)(1), and to the extent it may be read to interpret Preston differently, we reject its analysis.
The trial court incorrectly limited its analysis to a determination whether Moeller was a “business visitor.” It did so primarily relying on McNulty v Hurley, 97 So 2d 185 (Fla, 1957). McNulty is certainly not binding on Michigan courts. Further, it no longer represents good Florida law following precedents in that state adopting the second Restatement of Torts definition including its “public invitee” alternative. Heath v First Baptist Church, 341 So 2d 265, 266 (Fla App, 1977).
As the parties agree, the available Michigan precedents have only considered persons entering church property to participate in a business or economic activity being conducted there. Manning v Bishop of Marquette, 345 Mich 130; 76 NW2d 75 (1956) (bingo gaming); Kendzorek v Guardian Angel Catholic Parish, 178 Mich App 562; 444 NW2d 213 (1989), overruled on other grounds in Orel v Uni-Rak Sales Co, Inc, 454 Mich 564; 563 NW2d 241 (1997) (a fund-raising carnival).
The precedents cited by defendant from jurisdictions that do not recognize the “public invitee” alternative are, of course, inapposite.
We do note, however, that we have concerns about the manner in which the trial court allowed defendant to introduce expert- testimony notwithstanding plaintiffs’ argument that the scientific theory advanced was not accepted by the scientific community. If this issue surfaces again, the trial court should state on the record its reasoning for allowing or disallowing the testimony under applicable precedents. See, e.g., Nelson v American Sterilizer Co (On Remand), 223 Mich App 485, 489-492; 566 NW2d 671 (1997); People v Davis, 199 Mich App 502, 512; 503 NW2d 457 (1993). | [
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Per curiam.
Defendant David R. Najar appeals by leave granted an order denying his timely request for the appointment of appellate counsel following his plea of guilty. We reverse and remand for appointment of counsel.
1. UNDERLYING FACTS
On December 5, 1995, defendant pleaded guilty of one count of delivery of marijuana, MCL 333.7401(2)(d); MSA 14.15(7401)(2)(d), and to the supplemental charge of habitual offender, fourth offense, MCL 769.12; MSA 28.1084. In exchange for the plea, the prosecution agreed to dismiss one count of felon in possession of a firearm and to recommend a minimum sentence within the sentencing guidelines.
On December 27, 1995, the trial court sentenced defendant to two years, four months to fifteen years in prison. The minimum term was within the sentencing guidelines. The trial court denied sentencing credit in excess of four days, finding that, as of August 14, 1995, defendant was incarcerated under a sentence in another case, not because of his inability to post bond in the instant case.
On February . 8, 1996, the trial court denied defendant’s timely request for the appointment of appellate counsel. Defendant and others who had been denied counsel under similar circumstances joined in a complaint for superintending control filed with the Michigan Supreme Court. On March 28, 1997, that Court dismissed the complaint; however, in doing so, it stated that petitioners could file motions for appointment of counsel in the trial courts within twenty-one days, and that the trial courts must appoint counsel to argue the motions.
On July 21, 1997, the trial court denied defendant’s request for appointment of appellate counsel. While acknowledging that an indigent defendant has the right to appellate counsel in a first appeal of right, the trial court noted that that right had not been extended to a discretionary appeal, citing Ross v Moffit, 417 US 600; 94 S Ct 2437; 41 L Ed 2d 341 (1974). The trial court characterized as “tempting” defendant’s argument that, if a discretionary appeal is the only form of appeal provided, counsel must be appointed. However, the trial court nevertheless found that policy reasons supported the denial of a request for counsel following a plea. The trial court reasoned that because a plea proceeding is straightforward and counsel is afforded to ensure that the proceeding conforms to applicable laws, a pro se defendant wishing to challenge the proceeding would be able to identify potential meritorious issues.
The trial court rejected defendant’s argument that MCR 6.425(F)(1)(c), which states that a trial court should “liberally grant” a timely request for appellate counsel in a plea case, required the appointment of counsel in such a case. The trial court distinguished People v Cottrell, 201 Mich App 256, 259; 506 NW2d 12 (1993), in which this Court held that an untimely request for appellate counsel made under MCR 6.425(F)(1)(b)(ii), as then in effect, cannot be denied on the basis of delay alone. The trial court noted that the instant case did not involve an untimely request for counsel. Moreover, the trial court rejected as dicta this Court’s indication in Cottrell, supra at 258, that a trial court should not examine the record in its own case to determine if arguable appellate issues could be raised. The trial court noted that trial courts are routinely asked to evaluate their own rulings when passing on requests for relief in motions for new trial, motions for rehearing, and so forth.
Addressing the specifics of defendant’s case, the trial court found that no arguable appellate issues existed and that the seriousness of the offenses for winch defendant had been convicted did not warrant the appointment of appellate counsel. The trial court stated that the plea and sentencing proceedings complied with the applicable law and court rules and that the sentence imposed was within the sentencing guidelines. The trial court rejected defendant’s assertion that he was entitled to jail credit for the period between August 10, 1995, the date of his initial incarceration, to December 27, 1995, the date of his sentencing for the instant offenses. The trial court found that, on August 14, 1995, defendant began serving a jail sentence for an unrelated offense. After that date, defendant was not incarcerated because of his inability to post bond in the instant case; therefore, he was not entitled to jail credit. MCL 769.11b; MSA 28.1083(2); People v Prieskorn, 424 Mich 327; 381 NW2d 646 (1985). Finally, the trial court stated, without further explanation, that the offenses of which defendant was convicted were not so serious as to wiirrant the appointment of appellate counsel.
n. PROPOSAL B — EFFECT AND CONSEQUENCES
Before November 8, 1994, a defendant convicted by a jury or by a plea of guilty or nolo contendere had an appeal of right from such a conviction. In pertinent part, Const 1963, art 1, § 20 read:
In every criminal prosecution, the accused shall have the right... to have an appeal as a matter of right; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.
Timely requests for appointment of appellate counsel were granted as a matter of course to defendants claiming appeals from both jury and plea-based convictions.
On November 8, 1994, the voters of Michigan adopted Proposal B, which amended Const 1963, art 1, § 20 to eliminate appeals of right from plea-based convictions. Following the passage of Proposal B, Const 1963, art 1, § 20 now reads, in pertinent part:
In every criminal prosecution, the accused shall have the right... to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.
Following the passage of Proposal B, MCL 770.3(1)(e); MSA 28.1100(1)(e) was adopted, effective December 27, 1994. Section 3(1)(e) provides, “All appeals from final orders and judgments based upon pleas of guilty or nolo contendere shall be by application for leave to appeal.”
The enactment of Proposal B did not change the language in Const 1963, art 1, § 20 regarding the right to reasonable assistance in perfecting and prosecuting an appeal. However, Const 1963, art 1, § 20, by its plain language, only provides for a right to such assistance “to perfect and prosecute an appeal.” [Emphasis added.] This plainly does not include a right to such assistance in seeking leave to bring an appeal. An application for leave to bring an appeal is plainly and simply not an appeal. “The judiciary of this state is not free to simply engraft onto [a provision of the constitution] more ‘enlightened’ rights than the framers intended.” Sitz v Dep’t of State Police, 443 Mich 744, 759; 506 NW2d 209 (1993). In any event, given the constitution’s lack of specificity regarding an indigent’s right to appointed counsel following a plea-based conviction and the Legislature’s failure to enact legislation clarifying that right, the Michigan Supreme Court amended MCR 6.425 on an interim basis. Since December 30, 1994, MCR 6.425 has provided:
(F) Appointment of Lawyer; Trial Court Responsibilities in Connection with Appeal.
(1) Appointment of Lawyer.
(a) Unless there is a postjudgment motion pending, the court must rule on a defendant’s request for a lawyer within 14 days after receiving it. If there is a postjudgment motion pending, the court must rule on the request after the court’s disposition of the pending motion and within 14 days after that disposition.
(b) In a case involving a conviction following a trial, if the defendant is indigent, the court must enter an order appointing a lawyer if the request is filed within 42 days after sentencing or within the time for filing an appeal of right. The court should liberally grant an untimely request as long as the defendant may file an application for leave to appeal.
(c) In a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request if it is filed within 42 days after sentencing.
On July 25, 1997, the Michigan Supreme Court directed that the current version of MCR 6.425 remain in effect until further order of that Court. See 455 Mich xxvi (1997).
The passage of Proposal B led to confusion regarding the scope of an indigent defendant’s right to appointed counsel to pursue an application for leave to appeal following a plea-based conviction. The pr oper application of MCR 6.425 is not clear-cut. As a result, requests for counsel by indigent defendants have met with inconsistent responses from trial courts across the state. Some trial courts have continued to appoint counsel upon request; however, other trial courts have taken a more narrow view and have apparently come close to routinely denying such requests. In this case, we attempt to define the scope of an indigent defendant’s right to appointed counsel to pursue an application for leave to appeal following a plea-based conviction.
m. ANALYSIS
Once a state has established appellate review in criminal cases, a defendant cannot be denied access to the process because of indigency. Burns v Ohio, 360 US 252, 257; 79 S Ct 1164; 3 L Ed 2d 1209 (1959). In Burns, the United States Supreme Court made it clear that a state may not, without violating the constitution deny an indigent criminal defendant who has been convicted of a crime the ability to file a pleading seeking leave to appeal because of the indigent defendant’s inability to pay the applicable filing fee. That concern is not involved here; the ability of an indigent defendant to file an application in this Court for leave to appeal a plea-based conviction is unquestioned.
Further, this case does not present the situation in which the first appeal is as of right, in which case appointment of counsel would certainly be required under Douglas v California, 372 US 353, 356-357; 83 S Ct 814; 9 L Ed 2d 811 (1963). This case also does not involve a discretionary appeal taken to a higher court after an appeal of right with counsel has been heard before an intermediate appellate court, in which case appointment of counsel would not be required. Ross, supra. Rather, this case concerns the extent to which such an indigent defendant should be provided the assistance of counsel, at public expense, in filing such an application to appeal a plea-based conviction.
We recognize that Ross included language emphasizing that the indigent defendant in that case had been provided an appeal of right, with a corresponding right to appellate counsel, at an intermediate appellate court in North Carolina before the challenged procedure for seeking discretionary review in the North Carolina Supreme Court, in which the indigent defendant was not afforded a right to appointed appellate counsel. Nevertheless, no decision of the United States Supreme Court requires a state, as a matter of federal constitutional law, to provide a convicted indigent defendant with the assistance of counsel in pursuing discretionary appellate relief. The Court in Ross reiterated “the traditional principle that a State is not obliged to provide any appeal at all for criminal defendants.” Id. at 606. Further, the Fourteenth Amendment does not require absolute equality. Id. at 612. We view Douglas, supra, as holding that there is a federal constitutional right to appointed counsel in pursuing a first appeal of right. We find no federal or state constitutional right to appointed counsel in pursuing an application for leave to appeal.
Accordingly, in the absence of a Michigan statute regarding this subject, the right to counsel for an indigent defendant following a plea-based conviction is governed by MCR 6.425(F)(1)(c). This rule provides, as set forth above, that a trial court should “liberally grant” a request for appointed appellate counsel that is made within forty-two days after sentencing resulting from a plea-based conviction. The rule does not mandate appointment of counsel, and we will not rewrite the rule to require the appointment of counsel in every case following a plea-based conviction.
We note that the same “liberally grant” language appears in MCR 6.425(F)(1)(b), in the context of an untimely request for appellate counsel following a trial. In Cottrell, supra at 259, this Court held that delay alone cannot serve as a basis for denying an untimely request for counsel under MCR 6.425(F)(1)(b). In so holding, this Court observed, in dicta, that we rejected a construction of the “liberally grant” language that would allow a trial court to make a preliminary assessment of the merits of a potential appeal before deciding to grant an untimely request for counsel. Id. at 258. Cottrell did not address what circumstances might justify the denial of a request for counsel. However, given that an assessment of the merits of a potential appeal was discouraged as a gate-keeping method, the practical effect of the Cottrell dicta may have been to induce trial courts to grant requests for counsel whenever an indigent defendant, convicted on the basis of a plea, can still file a delayed application for leave to appeal.
Cottrell was decided before the amendment of Const 1963, art 1, § 20 and MCR 6.425. It is distinguishable on that basis. Thus, we decline to apply its dicta to an analysis of the “liberally grant” language of MCR 6.425(F)(1)(c). Instead, we find a useful analogy in the standard formerly applied to a motion to withdraw a guilty plea brought before sentencing. Before the adoption on October 1, 1989, of MCR 6.310(B), which sets forth the current standard of review, a motion to withdraw a guilty plea was brought under GCR 1963, 785.7(6) or its successor, the former MCR 6.101(F)(6)(b). These rules stated that a court “may” set aside a plea on a defendant’s motion. However, they did not specify a standard for the exercise of discretion. The appellate courts developed the “great liberality” standard to be used by trial courts in consideiing such requests. See, e.g., People v Bencheck, 360 Mich 430, 432; 104 NW2d 191 (1960). This standard allowed a defendant to withdraw a plea unless the request was obviously frivolous or clearly motivated by a concern regarding the sentence. Id. at 433. See also People v Holmes, 181 Mich App 488, 492-494; 449 NW2d 917 (1989). While application of this standard allowed a trial court to exercise discretion, it resulted in the granting of the motion in the majority of cases.
We conclude that the “liberally grant” language of MCR 6.425(F)(1)(c) should be similarly construed. This language presupposes that a trial court will both exercise discretion when passing on requests for appointment of counsel for indigent defendants seeking leave to appeal following plea-based convictions and approach such requests with an inclination to grant them. Of necessity, these requests come from the indigent defendants themselves, many of whom are uneducated and have little or no familiarity with the law. We recognize that many sophisticated issues that are not waived by a plea, such as double jeopardy, entrapment, and subject-matter jurisdiction, veiy likely could not be presented in an articulate manner by such indigent defendants.
We therefore hold that if an indigent defendant’s request for counsel raises any issue other than one relating to (1) the facial regularity of the plea-taking procedure, (2) the trial court’s adherence to a sentencing agreement, (3) a plain correction of clerical error in court documents, such as a misspelling or a mathematical miscalculation, or (4) other instances absolutely devoid of merit, the request for appointment of appellate counsel should be granted.
We further hold that if in a request for appointed appellate counsel an indigent defendant raises a properly preserved issue by alleging that the advice of rights given by the trial court did not comply with MCR 6.302(B) or that he was not sentenced in accordance with an agreement and thus is entitled to withdraw his plea, People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993), the trial court can easily examine the record to determine the accuracy of the claim. If upon examination of the record the trial court finds that the claim is not accurate, it can exercise its discretion to deny the request for appointed appellate counsel. A request in such a case may be granted if the trial court determines that the indigent defendant is in need of assistance to pursue an application for leave to appeal.
We believe that these guidelines will assist trial courts in this difficult area. We emphasize, however, that we do not propose to, or in fact, rewrite the language of MCR 6.425(F)(1)(c). The “liberally grant” standard contained in that rule clearly requires, and will continue to require, the exercise of discretion by the trial court.
IV. CONCLUSION
In his request for appointment of appellate counsel, defendant Najar asserted that the trial court erred in failing to grant him credit against his sentence for the time he spent in jail between August 10, 1995, the date of his initial incarceration, and December 27, 1995, the date of his sentencing for the instant offenses. Applying the standard outlined above, and in light of the fact that defendant was not on bond, defendant should be provided with appointed appellate counsel, upon a proper showing of indigency, to assist him in seeking appellate review of his plea-based convictions.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
At the time of the Cottrell decision, MCR 6.425(F)(1)(b) provided:
“Untimely Request. If an indigent defendant’s request is not timely,
“(i) the court must grant the request if it is filed within the time for filing an appeal of right;
“(ii) the court should liberally grant the request as long as the defendant may file an application for leave to appeal.” [Cottrell, supra at 257-258.]
This is substantially the same as the current language of MCR 6.425, which is set out later in the main text of this opinion.
For example, an indigent defendant who was not previously arrested, tried, or convicted in connection with the charge or transaction underlying a plea-based conviction would plainly have no claim that such a conviction violated double jeopardy protections. | [
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Bandstra, P.J.
Hi Temp Products, Inc., formerly known as Asbestos Specialties Company, was granted leave to appeal in these thirty-eight consolidated cases, all arising from a decision denying Hi Temp’s motions for summary disposition predicated on a statute of limitations. We affirm.
Hi Temp was in the business of selling asbestos products. In these otherwise unrelated actions, plaintiffs claim to have suffered personal injuries or death in consequence of use of or exposure to Hi Temp products. All the lower court cases were filed sometime after October 25, 1994. One year earlier, on October 25, 1993, the Bureau of Corporations and Securities accepted for filing Hi Temp’s certificate of dissolution as a Michigan business corporation. Hi Temp’s board of directors and sole stockholder had passed resolutions providing for such dissolution on October 8, 1993. The certificate of dissolution was received at the Bureau of Corporations and Securities on October 14, 1993; it was not stamped “filed” until October 25, 1993.
In the intervening eleven-day period between the receipt by the bureau of the certificate and its filing, Hi Temp sent notice to known creditors, including the claimants in these cases, by addressing a letter to the law firm that, at that time, was representing most or all of these plaintiffs. The letter was in the form and contained the information required by § 841a of the Business Corporation Act (bca), MCL 450.1841a; MSA 21.200(841a). Additionally, during that same time frame, Hi Temp published a notice in the Oakland Press, a paper published in the county in which Hi Temp’s principal office was located, in the form and containing the information required by § 842a of the BCA, MCL 450.1842a; MSA 21.200(842a). Accordingly, Hi Temp argues that the one year period of limitation set forth in the BCA bars plaintiffs’ claims. MCL 450.1842a(3); MSA 21.200(842a)(3).
The primary goal of statutory interpretation is to give effect to the Legislature’s intent in enacting a provision. In re Jagers, 224 Mich App 359, 362; 568 NW2d 837 (1997). In determining the Legislature’s intent, the specific language of the statute must be examined. Id. “If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written.” Id. Statutory interpretation is a question of law that is reviewed de novo on appeal. Id.
In Michigan, pursuant to statute, the general rule is that a dissolved corporation can sue and be sued. MCL 450.1833, 450.1834; MSA 21.200(833), 21.200(834). However, the Legislature has created a process whereby a dissolved corporation can bar future claims, thus cutting off the possibility that the corporation’s potential liability could never be completely resolved. After the corporation’s dissolution becomes effective, the corporation can give either actual written notice of the dissolution pursuant to MCL 450.1841a; MSA 21.200(841a), or notice by publication pursuant to MCL 450.1842a; MSA 21.200(842a) to potential claimants against the corporation. Specifically, MCL 450.1841a; MSA 21.200(841a) provides:
(1) The dissolved corporation may notify its existing claimants in writing of the dissolution at any time after the effective date of the dissolution. The written notice shall include all of the following:
* * *
(c) The deadline, which may not be less than 6 months from the effective date of the written notice, by which the dissolved corporation must receive the claim.
(d) A statement that the claim will be barred if not received by the deadline.
(3) A claim against the dissolved corporation is barred if either of the following applies:
(a) If a claimant who was given written notice under subsection (1) does not deliver the claim to the dissolved corporation by the deadline.
* * *
(5) For purposes of this section, the effective date of the written notice is the earliest of the following:
(a) The date it is received.
(b) Five days after its deposit in the United States mail, as evidenced by the postmark, if it is mailed postpaid and correctly addressed.
(c) The date shown on the return receipt, if the notice is sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee.
Notice by publication is allowed by MCL 450.1842a; MSA 21.200(842a), which provides:
(1) A dissolved corporation may also publish notice of dissolution at any time after the effective date of dissolution and request that persons with claims against the corporation present them in accordance with the notice.
* * *
(3) If the dissolved corporation publishes a newspaper notice in accordance with subsection (2), the claim of each of the following claimants is barred unless the claimant commences a proceeding to enforce the claim against the dissolved corporation within 1 year after the publication date of the newspaper notice:
(a) A claimant who did not receive written notice under section 841a.
(b) A claimant whose claim was timely sent to the dissolved corporation but not acted on.
(c) A claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.
(4) Notwithstanding subsection (3), a claimant having an existing claim known to the corporation at the time of publication in accordance with subsection (2) and who did not receive written notice under section 841a shall in no event be barred from suit until 6 months after the claimant has actual notice of the dissolution.
In order for a corporation that has dissolved to take advantage of the protections afforded by these sections, it must furnish or publish notice “at any time after the effective date of dissolution.” The bca provides that the dissolution of a corporation “shall be effected by the . . . filing of a certificate of dissolution on behalf of the corporation . . . .” MCL 450.1804(7); MSA 21.200(804)(7). Hi Temp argues that delivery of its certificate of dissolution to the Bureau of Corporations and Securities on October 14, 1993, constituted the requisite act of “filing,” thus making that date “the effective date of dissolution.”
Hi Temp relies on § 131(1) of the BCA, MCL 450.1131(1); MSA 21.200(131)(1), which provides:
A document required or permitted to be filed under this act shall be filed by delivering the document to the administrator together with the fees and accompanying documents required by law. ... If the document substantially conforms to the requirements of this act, the administrator shall endorse upon it the word “filed” with his or her official title and the date of receipt and of filing and shall file and index the document... in his or her office. If so requested at the time of the delivery of the document to his or her office, the administrator shall include the hour of filing in his or her endorsement. The administrator shall prepare and return a true copy of the document other than an annual report... to the person who submitted it for filing showing the filing date.
However, § 131(3) further provides that a filed document “is effective at the time it is endorsed . . . MCL 450.1131(3); MSA 21.200(131)(3).
Reading these provisions together, we conclude that § 131(1) merely describes the procedure by which a document is to be filed under the bca. It must be filed along with required fees and accompanying documents. The administrator makes a determination that the filed document substantially conforms to the requirements of the act before endorsing the document as “filed.” With respect to documents other than annual reports, the filing party is entitled to be provided a copy of the filed document showing when it was endorsed as filed.
Subsection 131(3) then specifically states that a filed document “is effective at the time it is endorsed . ...” In light of subsection 131(3), we disagree with Hi Temp’s argument that the description of the filing procedure set forth in subsection 131(1) somehow makes a document effective at the time of its delivery to the administrator rather than at a later time when the administrator endorses the document as filed.
The effective date of Hi Temp’s dissolution was October 25, 1993, when the certificate was endorsed as filed. Hi Temp provided no notice to plaintiffs after that date; its written notice was provided before that date and the Oakland Press publication of notice occurred on (not after) that date. Accordingly, Hi Temp cannot rely on the statutory bars that would have been available under the BCA had notice been provided “after the effective date of dissolution.”
Although Hi Temp also relies on the doctrine of “substantial compliance” in arguing that plaintiffs’ claims should be barred, we conclude that this argument is without merit. Where the Legislature views the doctrine of “substantial compliance” acceptable, it has, at least in the BCA, specifically indicated that intent. Subsection 131(1) authorizes the administrator to endorse a certificate of dissolution as “filed” if, with respect to content, the document “substantially conforms to the requirements of this act . . . .” The Legislature has made no similar provision for the timing of notices under either § 841a or § 842a, apparently intending an orderly process where effective dissolution must occur before notice of that dissolution can be provided to claimants. It would be a usurpation of legislative prerogatives to interpolate The substantial compliance doctrine into those sections.
We affirm.
Presumably, Hi Temp received a return copy of its certificate of dissolution in this case and was thus provided notice of the date on which its dissolution was “filed” and effective. Hi Temp could have avoided the problems leading to this appeal by recognizing that the earlier notices were premature and by providing notice to plaintiffs after October 25, 199b.
The necessity for the administrator of the Bureau of Corporations and Securities actually to inspect the documents and to determine that the dissolution requirements have been satisfied before filing the certificate of dissolution is apparent both from the language of the statute and from case law, which indicates that unless all such ancillary requirements have beer*, fulfilled, the administrator has no obligation to treat the document as filed. Dobson v Secretary of State, 249 Mich 199; 228 NW 773 (1930).
In effect, Hi Temp argues that we should rewrite the statute to allow notice “before, on or after” the effective date of dissolution. As judges, we cannot constitutionally act as legislators.
Similarly, our Supreme Court has applied substantial compliance analysis to the content, rather than the timing, of a notice in Meredith v Melvindale, 381 Mich 572; 165 NW2d 7 (1969).
Although this seems a reasonable approach, Hi Temp characterizes this construction of the statute an “absurdity” that should be rejected. Although there are precedents rejecting a literal construction of a statute for this kind of reason, see, e.g., Rowell v Security Steel Processing Co, 445 Mich 347, 354; 518 NW2d 409 (1994), we consider Hi Temp’s conclusory argument here, made without citation to any authority, to be waived, Weiss v Hodge (After Remand), 223 Mich App 620, 637; 567 NW2d 468 (1997).
We realize that plaintiffs have not shown that they have been prejudiced by the fact that notices were provided on and before the effective date of the dissolution in this case. Notwithstanding that, we cannot merely ignore the clear language of the statute requiring that notices occur after the effective date of dissolution. Any argument that, at least in cases like this, this requirement should not apply should be taken to the Legislature. | [
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Per Curiam.
Defendant was charged with three counts of involuntary manslaughter arising from an automobile accident that allegedly occurred while he was drag racing. After his district court arraignment, but before his preliminary examination, defendant filed in the district court a motion to compel discovery of information obtained by the prosecutor through use of investigative subpoenas. The district court granted the motion, but, on appeái by leave in the circuit court, the discovery order was vacated. Defendant now appeals by leave granted. We vacate and remand.
The narrow issue in this case is whether a district court, before the preliminary examination of an indi vidual charged with a felony, possesses the authority to compel discovery of witnesses’ statements given to the prosecution pursuant to an investigative subpoena. We hold that, in felony cases, a district court has the authority to order the production of statements made by a defendant, codefendant, or accomplice in response to an investigative subpoena, along with any exculpatory information obtained from any witness in response to an investigative subpoena; it does not have the authority in felony prosecutions to order the production of nonexculpatory statements made by other subpoenaed individuals.
i
The use of investigative subpoenas by prosecutors to facilitate felony investigations was authorized by the Michigan Legislature in 1995, 1995 PA 148, and is codified as MCL 767A.1 et seq.; MSA 28.1023A(1) et seq. Under the statutory scheme, a prosecutor may petition “the district court, the circuit court, or the recorder’s court” for authorization to issue one or more subpoenas to investigate the commission of a felony. MCL 767A.2(1); MSA 28.1023A(2)(1). Once an investigative subpoena is issued and properly served, the person subpoenaed “shall appear before the prosecuting attorney and answer questions concerning the felony being investigated or produce any records, documents, or physical evidence he or she is required to produce.” MCL 767A.5(1); MSA 28.1023A(5)(1). A person who refuses to answer any question or to produce any record, document, or physical evidence may be ordered to do so by the judge who authorized the issuance of the subpoena, MCL 767A.6; MSA 28.1023A(6), and is in contempt if the court order is disobeyed. MCL 767A.9(2); MSA 28.1023A(9)(2). A person who knowingly makes a false statement to the prosecutor under oath is guilty of perjury. MCL 767A.9(1); MSA 28.1023A(9)(1).
When a prosecutor files charges based upon information obtained pursuant to an investigative subpoena, the statutory scheme allows the defendant to receive a copy of the defendant’s testimony, along wi th the testimony of witnesses who will testify at the defendant’s trial. MCL 767A.5(6); MSA 28.1023A(5)(6) provides:
If a criminal charge is filed by the prosecuting attorney based upon information obtained pursuant to this Chapter, upon the defendant’s motion made not later than 21 days after the defendant is arraigned on the charge, the trial judge shall direct the prosecuting attorney to furnish to the defendant the testimony the defendant gave regarding the crime with which he or she is charged and may direct the prosecuting attorney to furnish to the defendant the testimony any witness who will testify at the trial gave the prosecuting attorney pursuant to this chapter regarding that crime except those portions that are irrelevant or immatenal, or that are excluded for other good cause shown. If the defendant requests the testimony of a witness pursuant to this section and the trial judge directs the prosecuting attorney to furnish the defendant a copy of that witness’s testimony, the prosecuting attorney shall furnish a copy of the testimony not later than 14 days before trial. If the prosecuting attorney fails or refuses to furnish a copy of the testimony to the defendant pursuant to this subsection, the prosecuting attorney may be barred from calling that witness to testify at the defendant’s trial. [Emphasis added.]
In addition, MCL 767A.5(7); MSA 28.1023A(5)(7) provides a form of “mid-trial discovery”:
If the trial judge has not directed the prosecuting attorney to furnish a copy of a witness’s testimony to the defendant before trial, the prosecuting attorney shall, upon the defendant’s request, furnish a copy of the testimony to the defendant after direct examination of that witness at trial has been completed. [Emphasis added.]
In this case, defendant, who was charged with a felony, filed a motion for discovery in the district court after his district court arraignment but before his preliminary examination. Among the items sought were copies of the statements of several individuals, including defendant, that had been obtained by the prosecution through the use of investigative subpoenas. The district court ordered the prosecution to provide defendant with copies of these statements, as well as any audiotapes or videotapes of the statements. The circuit court vacated the order, ruling that the district court lacked authority to grant defendant’s motion. In reaching that conclusion, the circuit court found MCL 767A.5(6); MSA 28.1023A(5)(6) controlling and determined that the “trial judge” referred to in the statute means a circuit judge. The court therefore concluded that defendant was not entitled to discovery of his statement or the statements of other subpoenaed witnesses at the district court stage of the proceedings.
n
Defendant argues that the discovery procedures set forth in MCL 767A.5(6); MSA 28.1023A(5)(6) are superseded by the Michigan court rule governing criminal discovery, MCR 6.201. We agree in part.
The Michigan court rules governing criminal procedure supersede any statutory procedure pertaining to and inconsistent with a procedure provided by a court rule. MCR 6.001(E). See also Const 1963, art 6, § 5; People v Strong, 213 Mich App 107, 112; 539 NW2d 736 (1995). MCR 6.201 makes certain discovery mandatory and, although it applies only to felony raises, see MCR 6.001(A) and (B), it applies to proceedings in both district and circuit courts. People v Valeck, 223 Mich App 48, 50; 566 NW2d 26 (1997). See also MCR 6.003; People v Laws, 218 Mich App 447; 554 NW2d 586 (1996).
MCR 6.201 provides in relevant part:
(B) Discovery of Information Known to the Prosecuting Attorney. Upon request, the prosecuting attorney must provide each defendant:
(1) any exculpatory information or evidence known to the prosecuting attorney;
(3) any written or recorded statements by a defendant, codefendant, or accomplice, even if that person is not a prospective witness at trial[.]
* * *
(F) Timing of Discovery. Unless otherwise ordered by the court, the prosecuting attorney must comply with the requirements of this rule within 7 days of a request under this rule. . . .
Thus, under the court rule, a prosecutor must supply a felony defendant copies of the defendant’s statements, the statements of any codefendants and any accomplices whether or not they are potential witnesses at trial, and any exculpatory information known to the prosecution. Furthermore, under the court rule, requests for this information may be made at any stage of the proceedings — in the district court or the circuit court — and must be satisfied within seven days of a request. To the extent that MCL 767A.5(6); MSA 28.1023A(5)(6) allows a felony defendant to seek copies of statements given pursuant to an investigative subpoena only during a twenty-one-day period, limits discovery to the statements of the defendant and, in the discretion of the court, “any witness who will testify at trial,” allows a prosecutor to forestall disclosure of the statements until fourteen days before trial, and does not require the prosecutor to turn over other exculpatory information, the statute is in direct conflict with MCR 6.201(B)(1), (B)(3), and (F), and, under MCR 6.001(E), is superseded by the court rule.
The trial court in this felony case erred in concluding that the district court lacked the authority to order any discovery of information obtained by the prosecutor through the use of investigative subpoenas. The criminal discovery procedures of MCR 6.201 supersede the statutory procedures in both the district court and the circuit court; the court rule mandates that, at any stage of the proceedings, the prosecution must turn over exculpatory information and the statements of a defendant, codefendant, or accomplice within seven days of a request.
in
Obviously, because investigative subpoenas may be used to obtain information from any person reasonably believed to have knowledge regarding the felony being investigated, see MCL 767A.3; MSA 28.1023A(3), use of the subpoenas extends beyond obtaining the “statements by a defendant, codefendant, or accomplice.” MCR 6.201(B)(3). One of the purposes behind the Legislature’s enactment of 1995 PA 148, for example, was to force reluctant individuals not necessarily involved in the crime being investigated to cooperate in the investigation. Senate Analysis, SB 85, August 10, 1995. Nonexculpatory statements made by these individuals, that is, persons who are not “defendants], codefendant[s], or accomplice[s],” are not subject to mandatory discovery under MCR 6.201, but are subject to discovery under MCL 767A.5(6); MSA 28.1023A(5)(6).
The circuit court read MCL 767A.5(6); MSA 28.1023A(5)(6) as using the terms “criminal charge,” “arraigned,” “trial,” and “trial judge” to mean “felony charge,” “arraigned in circuit court,” “felony trial,” and “circuit judge.” We conclude that this is an overly mirrow construction of the statute. Rather, it appears that the Legislature deliberately and systematically incorporated the broadest possible terms in the statute in order to encompass the possibility that both felony and misdemeanor cases might result from investigations in which subpoenas were used. That is, the Legislature seems to have intended the statutory terms to have varying meaning depending on whether a case arising from information uncovered by use of investigative subpoenas is brought in the context of misdemeanor or felony proceedings. So read, MCL 767A.5(6); MSA 28.1023A(5)(6) refers to arraignment in either the circuit court or the district court, depending on whether a misdemeanor or a felony has been charged, refers to either felony or misdemeanor trial, depending on the crime charged, and refers to either the circuit or the district judge, depending on the; crime to be tried. Thus, for purposes of MCL 767A.5(6); MSA 28.1023A(5)(6), we conclude that the term “trial judge” means a judge of the court with jurisdiction to try the crime charged. It does not mean, as defendant urges, the judge presiding at any particular stage of the criminal proceedings, including the preliminary examination in a felony case. Nor does it always mean circuit judge, as the circuit court in this case seemingly believed.
If felony charges are brought against a defendant and the case goes to trial, a circuit judge will preside over the trial. Under the statute, therefore, felony defendants have twenty-one days after their circuit court arraignment in which to seek from the circuit judge an order for the discovery of information not discoverable under MCR 6.201, i.e., nonexculpatory statements obtained by investigative subpoena from persons other than themselves, a codefendant, or an accomplice. The circuit judge has the discretion to allow discovery of the statements of any witnesses who will appear at trial.
If, on the other hand, the “criminal charge” filed by the prosecution is, for some reason, a misdemeanor charge rather than the felony originally under investigation, the trial would be in the district court. In that instance, the discovery provisions of MCR 6.201 would have no application, MCR 6.001(B), and the “trial judge” would be a district judge. In the absence of MCR 6.201, the provisions of MCL 767A.5(6); MSA 28.1023A(5)(6) would be triggered, and, therefore, misdemeanor defendants would have twenty-one days after their district court arraignment in which to seek from the district judge an order for the discovery of statements made pursuant to an investigative subpoena by themselves or any other witness who will testify at the trial.
IV
In this case, defendant sought in the district court copies of the statements given by himself and by five other individuals pursuant to investigatory subpoenas. Because defendant was charged with a felony, under MCR 6.201(B) and (F) the prosecution was required to provide defendant a copy of his statement within seven days of his request even though the case was still in the district court. Additionally, if the other subpoenaed individuals whose statements defendant sought were codefendants or accomplices, or if they supplied exculpatory information, the prosecution was also required under MCR 6.201(B) and (F) to supply defendant with that information within seven days of his request even though the case was still in the district court. On the other hand, if the other subpoenaed individuals were not codefendants or accomplices and their statements were nonexculpatory, the statements were not subject to mandatory discovery in the district court under MCR 6.201; the provisions of MCL 767A.5(6); MSA 28.1023A(5)(6) would then be triggered. Under the statute, defendant is entitled to seek discovery of these statements only in the circuit court (as the court with trial jurisdiction if he is bound over on felony charges) and only within twenty-one days after his circuit court arraignment. Furthermore, defendant would be entitled to discovery of the statements only if they were made by a person who will testify at trial, and the prosecutor would be allowed to withhold them until not later than fourteen days before trial.
Vacated and remanded to the district court. We do not retain jurisdiction.
Saad, J. I concur in the result only. | [
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Saad, P.J.
Defendant raises two issues in his appeal as of right from his conviction of felonious assault, MCL 750.82; MSA 28.277. We affirm.
On July 1, 1995, the victim left the Bam Tavern in Grand Ledge and walked to the parking lot. While he was walking, he saw a car drive quickly out of an alleyway beside the bar and come to a screeching halt in front of him. After a brief pause, the victim proceeded in front of the car until he heard a man’s voice say something about the victim “shooting his mouth off.” When the victim turned to address the driver, the victim was struck with “something hard” near his left eye and then was repeatedly bashed over the head. The victim was treated for a concussion, lacerations, and injuries to his facial bones, and he received twenty to twenty-five stitches. At the time of trial, the complainant’s vision was still impaired.
Sergeant Don McGillis of the Grand Ledge Police Department, who had been in his vehicle at a gas station, saw the assailant’s vehicle shortly before the assault began. McGillis watched the vehicle drive the wrong way through a bank drive-through-service lane and heard brakes screeching. Thinking the driver might be impaired, McGillis followed the car to the Bam Tavern where he watched the driver (later identified as defendant) approach the victim and begin hitting him over the head with an object. McGillis believed that the attack was unprovoked.
When McGillis arrested defendant, defendant told him that the victim had stolen his money. McGillis observed defendant following the arrest and testified that defendant was not slurring his words, stumbling, or falling down. McGillis smelled alcohol on defendant, but did not believe that defendant was “heavily intoxicated.” McGillis did not administer a Breathalyzer or blood test to determine whether defendant was intoxicated.
During the pretrial phase of this matter, defendant moved to proceed in propria persona, after having two attorneys appointed and withdraw from his representation. A third attorney was appointed as “stand by” counsel to assist defendant at trial. Defendant’s motion to disqualify the trial judge was denied. The jury ultimately convicted defendant of felonious assault.
i
Defendant contends that the trial judge abused his discretion in denying defendant’s motion that the judge disqualify himself. According to defendant, disqualification was required pursuant to MCR 2.003(B) because the trial judge repeatedly demonstrated that he was personally biased against defendant, who elected to proceed (at times) without benefit of counsel. Defendant relies on several comments made by the trial judge, but after careful review of the entire record, we do not believe that he has met his burden of demonstrating that the comments evidence actual bias or prejudice against defendant, or that the trial judge abused his discretion in denying the motion. For example, the trial judge did refer to defendant on one occasion as “Mr. Pro Se.” In addition, during the hearing regarding defendant’s second appointed counsel's motion to withdraw, defendant complained that his attorney had failed to meet with him “to have some kind of defense” until approximately twelve days before trial was scheduled. The trial court responded, “Well, in some cases, sir, you have to understand that in some cases there is no defense.” Even considering these (and other) comments, we do not believe that the record reflects a showing of actual bias or prejudice, as required by MCR 2.003(B)(1). See Cain v Dep’t of Corrections, 451 Mich 470, 503; 548 NW2d 210 (1996). There is no error.
n
Defendant next argues that the trial court erred in failing to give an instruction regarding the defense of intoxication. We disagree. As a threshold matter, the record does not reveal that defendant requested an intoxication instruction or objected to the absence of such an instruction. (There is no record of the jury instruction conference that occurred in chambers, and no subsequent objection to the instructions as given.) A defendant cannot claim instructional error on appeal when he failed to request the instruction at trial. People v Taylor, 159 Mich App 468, 488; 406 NW2d 859 (1987); MCL 768.29; MSA 28.1052. We thus review this issue only to determine if there is manifest injustice. People v Van Dorsten, 441 Mich 540, 544-545; 494 NW2d 737 (1993).
We find no manifest injustice in this case. An instruction regarding the defense of intoxication is proper only if the facts of the case would allow the jury to conclude that the defendant’s intoxication was so great as to render him incapable of forming the requisite intent. People v Mills, 450 Mich 61; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). In Mills, the defendants were convicted of assault with intent to commit murder after dousing the victim with gasoline and lighting her on fire. Mills claimed that the trial court had erred in refusing his request for an instruction regarding intoxication. The Court noted that there was “some evidence that the defendants appeared intoxicated, but there was no testimony that Mills actually was intoxicated, or was intoxicated to the point at which he was incapable of forming the intent to commit the charged crime.” Mills, supra at 82. There, two witnesses testified that the defendants were “loud and obnoxious” and that the one who ciime into the gas station was “in a hurry, nervous, and appeared ‘high.’ ” Yet the trial court observed:
“Under the circumstances, there is absolutely nothing on this record to substantiate the notion that Mr. Mills had consumed anything that night. People can appear one way to someone else when in actuality there is something else causing them to act the way they are being observed. Under the circumstances, I don’t think the intoxication instruction is supported by anything that I’ve heard on this record . . . .” [Id. at 83.]
Immediately following this quote, the Supreme Court stated:
We agree. Other than appearing high or drunk, there is no indication on the record that defendant was drunk or high on drugs and was incapable of forming the intent to commit this crime. With evidence that Mills was able to grab Ms. Grauman by the right leg, and at the same time was able to dump or throw gasoline on her, we cannot find that Mr. Mills was intoxicated, or intoxicated to the point at which he was incapable of forming the intent to commit the crime. We hold that the trial court properly denied the request to instruct on this defense. [Id.]
Our issue is a closer one, but, as in Mills, we find no basis for an intoxication instruction. The law enforcement officer who witnessed the assault testified that defendant was driving erratically and this caused him to suspect that defendant might be driving under the influence. Yet, defendant had no trouble landing multiple blows on the victim — defendant was not flailing wildly or uncontrollably. When defendant was arrested, the officer did not believe that defendant was sufficiently under the influence to even test his alcohol level. The smell of alcohol that the officer detected could have been minimal but certainly insufficient to demonstrate intoxication that rendered defendant incapable of forming the requisite intent. As in Mills, there was simply no evidence that defendant “actually was intoxicated, or was intoxicated to the point at which he was incapable of forming the intent to commit the charged crime.” Id. at 82-83. The trial court’s omission of an instruction regarding the defense of intoxication was not erroneous, and there is therefore no manifest injustice.
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Per Curiam.
Plaintiff Guy Cole appeals as of right an order granting summary disposition to defendant West Side Auto Employees Federal Credit Union on his claims of age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and discrimination based on his alleged handicap of alcoholism in violation of the Michigan Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.; MSA 3.550(101) et seq. The trial court based its grant of summary disposition on the credit union’s motion for summary disposition pursuant to MCR 2.116(C)(7) and (10). Although we cannot approve all aspects of the trial court’s reasoning, we affirm its decision.
I. FACTS
Cole began working for the credit union sometime around October 1971 and eventually became the chief executive officer (CEO) of the credit union. The credit union discharged Cole on or about March 26, 1993. Following his discharge by the credit union, Cole challenged his discharge as wrongful under the credit union’s Termination and Grievance Policy. After an arbitration proceeding, the arbitrator upheld Cole’s discharge as being based on just cause. Following the arbitrator’s decision, Cole filed this lawsuit. The trial court granted summary disposition to the credit union on two grounds. First, the trial court held that Cole was obligated to submit the claims in this suit to binding arbitration pursuant to the credit union’s Ter mination and Grievance Policy (as opposed to filing suit in a court of law). Alternatively, the trial court noted that, assuming Cole was not obligated to submit this dispute to binding arbitration, he voluntarily did so. The trial court stated that to allow Cole to relitigate these issues “would be to give him an opportunity certainly not within the reasonable expectations of the parties at the time of the contract.”
Further, the trial court indicated that the doctrine of collateral estoppel, which applies to factual determinations made during an arbitration proceeding, barred relitigation of the issues underlying this case. The trial court concluded that the arbitrator’s factual findings, which it regarded as conclusive, precluded Cole from establishing the necessary elements of either of his discrimination claims. In this appeal, Cole argues that the trial court erred in holding that he was obligated to submit his statutory discrimination claims to binding arbitration and, alternatively, that he was collaterally estopped from pursuing those claims in the trial court.
Pursuant to an employee handbook issued by the credit union for its salaried employees, Cole was assured that he would not be discharged except for just cause. The employee handbook also provided for grievance and arbitration procedures applicable to salaried employees who were discharged by the credit union. The procedures purportedly were to be the only method allowed for such employees to challenge an alleged wrongful termination, expressly including employment discrimination claims. The handbook stated:
These procedures shall apply to any and all disputes concerning the termination of salaried employees, including employment discrimination claims, and shall be the sole and exclusive remedy for any salaried employee claiming wrongful termination from employment with the Credit Union. [Emphasis supplied.]
The arbitration procedure to be followed under the employee handbook involved the selection of a neutral arbitrator in accordance with the procedures of the American Arbitration Association.
H. ARBITRATION UNDER RUSHTON v MEIJER, INC (ON REMAND)
Under Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), we must reject the portion of the trial court’s analysis that concluded that Cole was obligated to submit his statutory claims of handicap and age discrimination to arbitration. The Rushton majority summarized its pertinent holding as follows:
Accordingly, we hold that Meijer cannot require its employees, as a condition of employment, to waive prospectively their right to pursue direct and immediate review of civil rights claims in a judicial forum. The provision of the parties’ private employment contract requiring plaintiff, a nonunion employee, to exhaust the termination appeal procedure, including binding arbitration, before filing a lawsuit in the circuit court, is void as it relates to her gender discrimination claim under Michigan law. [Rushton, supra at 170 (emphasis supplied).]
Even more pointedly, the Rushton majority declared, “Michigan’s declared public policy entitling a state civil rights plaintiff to direct and immediate review of such claims in the circuit court cannot be abrogated by contract.” Id. at 165. If Cole had not pursued the credit union’s alternative dispute resolution (adr) procedure to the point of arbitration, then clearly under Rushton Cole would have had a right to reject the ADR procedure with regard to his civil rights claims against the credit union under Michigan statutes by proceeding with a complaint against the credit union in the trial court.
However, this case is materially distinguishable from Rushton. Cole decided to proceed to binding arbitration under the credit union’s ADR procedure after he had been discharged. The Rushton majority concluded that an employer could not require an employee, as a condition of employment, to prospectively waive the right to pursue civil rights claims under a state statute in a judicial forum. Id. at 170. However, this concern is inapplicable with regard to a former employee, such as Cole, whom the employer already has discharged. Indeed, the Rushton majority quoted with agreement the following comments reflecting the view of three justices of the Michigan Supreme Court in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 438; 550 NW2d 243 (1996) (Cavanagh, J., joined by Levin and Mallett, JJ.):
Finally, I would assert that I am not backing away from the public policy favoring alternative means of dispute resolution. For aggrieved individuals seeking to pursue remedies for claims that have already accrued, arbitration may present a quicker and cheaper means of receiving relief, and I fully support the parties’ voluntary intent in those cases. I would limit this opinion to the arbitration agreements in employment contracts entered into before any claim for unlawful discrimination has accrued. [Rushton, supra at 169-170 (emphasis supplied).]
Accordingly, we conclude that Rushton does not apply here. We hold that a discharged employee who alleges that he was wrongly discharged and who voluntarily submits to an arbitration procedure is barred in a lawsuit filed after the arbitration decision from seeking a factual finding different from that which was found in the arbitration decision.
As noted above, the Rushton majority concluded that a provision in an employment contract purporting to prospectively require arbitration of civil rights claims under state statutes is unenforceable. However, the Rushton panel unanimously concluded that a provision of an employee handbook requiring arbitration of employment disputes is enforceable with regard to a contractually based employment dispute when the employee handbook also provides for just-cause employment. Rushton, supra at 161-164 (majority opinion), 170 (Taylor, J., concurring in this part of the majority opinion). Because the plaintiff in Rush-ton never proceeded to arbitration under the employer’s ADR procedure in that case, id. at 159-160, the Rushton panel did not consider whether factual findings by an arbitrator in a proceeding in which a discharged employee alleged that the discharge violated contractual just-cause provisions would be conclusive if the employee thereafter filed a lawsuit alleging that the discharge violated one or more state civil rights statutes. Nevertheless, in Porter v Royal Oak, 214 Mich App 478, 485; 542 NW2d 905 (1995), this Court stated:
Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding. This principle likewise applies to factual determinations made during grievance hearings or arbitration proceedings. [Citations omitted; emphasis supplied.]
On the basis of the plain language of Porter, we conclude that factual findings made by an arbitrator after a proper arbitration proceeding are conclusive in a later-filed civil suit between the same parties, including a situation in which the earlier arbitration involved a contractually based wrongful discharge claim and the later lawsuit involves a claim that the employee’s discharge violated one or more state civil rights statutes.
m. discrimination claim
In this case, Cole alleged that his discharge involved age discrimination contrary to the Civil Rights Act and handicap discrimination contrary to the hcra. Cole based his claim of handicap discrimination solely on the alleged handicap of alcoholism. However, “The HCRA expressly excludes alcoholism as a handicap with respect to employment discrimination under Article 2 where the condition prevents the employee from performing his duties. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii).” Gazette v Pontiac, 212 Mich App 162, 168-169; 536 NW2d 854 (1995). The arbitrator in his written opinion stated: “I find that [Cole’s] job performance was detrimentally affected by his excessive drinking during the strike.” The arbitrator also recounted various ways in which Cole’s intoxication detrimentally affected his job performance and reflected negatively on the credit union. Accordingly, we conclude that, as a matter of law, if Cole indeed suffered from alcoholism, under the arbitrator’s conclusive factual findings, Porter, supra at 485, this did not constitute a handicap that could form the basis of a claim of illegal employment discrimination under the hcra because it prevented Cole from properly performing job duties. Thus, the trial court correctly granted summary disposition to the credit union with regard to Cole’s claim of handicap discrimination.
With regard to Cole’s claim of age discrimination, he presented no direct evidence of age-based animus on the part of the credit union. Accordingly, to avoid a grant of summary disposition under MCR 2.116(C)(10), Cole had to establish a “prima facie case” of age discrimination on the basis of circumstantial evidence. Harrison v Olde Financial Corp, 225 Mich App 601, 606-609; 572 NW2d 679 (1997). One essential aspect of such a prima facie case in an age discrimination case based on discharge from employment is that the plaintiff was qualified for the position. Meagher v Wayne State Univ, 222 Mich App 700, 710-711; 565 NW2d 401 (1997). Arguably, the arbitrator’s finding that Cole’s discharge was “based upon just cause” would necessarily encompass a factual determination that he was not qualified for his position as CEO of the credit union at the time of the discharge. However, assuming for purposes of discussion that a finding of just cause for termination of employment does not automatically amount to a finding that an employee is unqualified for a position, the factual findings contained in the following paragraph of the arbitrator’s decision require a conclusion that Cole was not qualified for his CEO position at the time of discharge:
It is acknowledged that [Cole] accomplished much on behalf of the credit union during his long tenure supervising the construction of a $4.5 million building and expanding assets from $70 to $110 million. (TR 446). But in my view his effectiveness as a Chief Operating Officer is substantially impugned by the above incidents of misconduct which constitute sufficient evidence of just cause to warrant sustaining the Employer’s action of discharge. As is often the case it took a traumatic event, such as the hit and run incident, to alert [Cole] to the fact of his disease of alcoholism. But by that time much damage had been sustained by the credit union relative to [Cole’s] relationship with its other employees and to the public. Such damage cannot be overcome by the arguable fact that [Cole] now has his alcoholism condition under control. [Emphasis supplied.]
According to the arbitrator’s conclusive factual findings, Porter, supra at 485, the damage to Cole’s relationship with other employees of the credit union and the public could not be overcome. Obviously, this requires a conclusion that Cole was, at the time of his discharge, not qualified to handle the supervisory and public relations responsibilities inherent in being the CEO of the credit union. Thus, the trial court correctly granted summary disposition to the credit union with respect to the age discrimination claim.
IV. COLLATERAL ESTOPPEL
While Cole invokes Florence v Dep’t of Social Services, 215 Mich App 211; 544 NW2d 723 (1996), in support of his position that the trial court erred in holding that he was collaterally estopped from pursuing his civil rights claims in a judicial forum, that case involving a union-represented employee is inapposite. In Florence, the defendant hired the plaintiff despite knowing of her severe hearing problem. Id. at 212. The plaintiff asserted that the defendant refused repeated, reasonable requests to accommodate her handicap during a training program. Id. After her training, the plaintiff was unable to perform her job adequately and was discharged. Id. at 212-213. After the discharge, the labor union that represented the plaintiff filed a grievance that resulted in a settlement agreement between the union and the defendant employer in which the defendant changed its records to indicate that the plaintiff had resigned. Id. at 213. The plaintiff did not participate in the settlement proceedings or sign the agreement. Id. Thereafter, the plaintiff filed a lawsuit alleging wrongful termination contrary to the HCRA, but the trial court granted summary disposition with one ground being that the suit was barred by the grievance settlement. Id. at 212-213.
This Court concluded that the pursuit and settlement of the plaintiffs contractual grievances by the union did not preclude the plaintiff from bringing suit in her own right for the alleged violation of the HCRA:
Plaintiff argues that the settlement agreement between plaintiff’s union and defendant did not bar an action based on her statutory civil rights. We agree. . . .
Although a union speaks for its members, its duty is to make and uphold the terms of a collective bargaining agreement for its members. However, a union does not have a duty to pursue for its members rights possessed independent of the collective bargaining agreement.
Here, it is true that plaintiffs union reached an agreement with defendant concerning plaintiffs contractual grievance. However, plaintiff’s claims in this suit do not arise out of the collective bargaining agreement. It is an “incontestable,” “black-letter statement of law” that employees in Michigan have “ ‘an independent, nonnegotiable right not to be discriminated against on the basis of handicap.’ ” Similarly, claims under the cra [the state Civil Rights Act] concern nonnegotiable state rights that are entirely independent of the collective bargaining agreement. Accordingly) plaintiff has a right to proceed in this case on her claims pursuant to the HCRA and the CRA regardless of the agreement that her union signed with respect to her contractual grievances. [Id. at 213-214 (citations omitted; emphasis supplied).]
The reasoning of Florence is inapplicable to this case. It is evident that the grievance procedure in Florence was limited to contractual grievances. Accordingly, in pursuing the contractual grievance in Florence, the union was not in a position to concern itself with adequately representing the employee’s interests with regard to claims based on statutory rights bestowed independently of any collective bargaining agreement. In contrast, the arbitration procedure in this case encompassed any claims of wrongful termination, including statutorily based employment discrimination claims. Therefore, Cole was in a position to pursue his claims of age and handicap discrimination in violation of state statutes in the arbitration proceeding. Thus, Florence is not pertinent to deciding this case.
V. CONCLUSION
In sum, we conclude that, while Cole was not obligated to submit his statutory civil rights claims to the arbitration procedure provided for by the employee handbook, the factual findings of the arbitrator were conclusive in this suit that was filed after the arbitrator’s decision. Those factual findings warranted summary disposition to the Credit Union because they precluded Cole from establishing his claims of handicap or age discrimination.
Affirmed. The credit union, being the prevailing party, may tax costs pursuant to MCR 7.219.
It almost does not bear repeating that we do not reverse the decision of a trial court where it reaches the right result for a wrong reason. See, e.g., General Aviation, Inc v Capital Region Airport Authority (On Remand), 224 Mich App 710, 716; 569 NW2d 883 (1997).
In light of our analysis, we consider it unnecessary to set forth in detail many of the unpleasant facts underlying Cole’s discharge.
We note that the panel in Rembert v Ryan’s Family Steak House, Inc, 226 Mich App 821, 822-823 (1997) followed the majority opinion in Rush-ton only because it was required to do so by MCR 7.215(H). The Rembert panel disagreed with the conclusion in Rushton that all employment contracts to arbitrate prospective civil rights claims violate public policy. Rembert, supra at 823. Rather, the Rembert panel would have adopted then Judge (now Justice) Taylor’s dissent in Rushton except for what it regarded as “the unnecessary commentary contained in the footnotes” of that dissent. Rembert, supra at 823 & n 2. We note that the procedure has been initiated for a seven-judge panel of this Court to be convened in Rembert to resolve the conflicting views of the Rushton majority and the prior three-judge panel in Rembert. Accordingly, we note that, at this point, Rushton remains binding precedent upon this panel, and apply it accordingly. In fairness to the trial court, we note that its decision predated Rushton. We do not criticize the trial court for its analysis of this difficult issue, which has produced a strong difference of opinion within this Court.
We also note that, under the unanimous view of the Michigan Supreme Court in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996), a provision in an employee handbook that purports to require arbitration of employment discrimination claims while the handbook only provides for at-will employment is unenforceable. See id. at 413-414 (Cavanagh, J., joined by Levin and Mallett, JJ.), 438 (Boyle, J., joined by Brickley, C.J., and Riley and Weaver, JJ., expression of majority of justices agreeing with this part of Justice Cavanagh’s minority lead opinion).
Accordingly, we express no opinion regarding any situation that may arise in which an employee alleges discrimination in violation of a state civil rights statute other than outright discharge from employment with the involved employer and the employee remains employed by the employer at the time of the dispute.
However, other case law establishes that an arbitration award may be vacated by a court if (1) it was procured by corruption, fraud, or other undue means, (2) there was evident partiality or corruption by an arbitrator or misconduct prejudicing a party’s rights, (3) the arbitrator exceeded granted powers, or (4) the arbitrator refused to postpone the hearing on a showing of sufficient cause, refused to hear material evidence, or otherwise conducted the hearing to substantially prejudice a party’s rights. Dohanyos v Detrex Corp (After Remand), 217 Mich App 171, 174-175; 550 NW2d 608 (1996).
Also, an arbitration decision may be modified or corrected by a court if (1) there is an evident miscalculation of figures or an evident mistake in the description of a person, a thing, or property referred to in the award, (2) the arbitrator has made an award regarding a matter not submitted to arbitration and the award may be corrected without affecting the merits of the decision regarding submitted issues, or (3) the award is imperfect in a matter of form that does not affect the merits of the controversy. Id. at 175. Cole has advanced no such claims.
MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii) provides:
For purposes of article 2, “handicap” does not include either of the following:
'■ (ii) A determinable physical or mental characteristic caused by the use of an alcoholic liquor by that individual, if that physical or mental characteristic prevents that individual from performing the duties of his or her job.
This referred to a strike by certain union-represented employees of the credit union that occurred while Cole was the CEO of the credit union. | [
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Sawyer, J.
Defendant appeals from a judgment of the Court of Claims in favor of plaintiff on plaintiffs claim for a refund under the Michigan Single Business Tax Act (SBTA), MCL 208.1 et seq.; MSA 7.558(1) et seq. We reverse.
Plaintiff is a Michigan corporation engaged in the business of retail sales of prescription drugs and other merchandise. At issue is plaintiffs treatment of discounts it received during fiscal years ending in 1986, 1987, 1988, and 1989. Plaintiff paid single business tax (sbt) on those amounts, but thereafter filed amended returns seeking refunds, categorizing those discounts as not subject to the sbt. Defendant denied the refunds and plaintiff brought the instant action in the Court of Claims.
The discounts at issue are those earned for prompt payment of purchases on credit. For example, the terms of a sale may be 2/10, net 30 — payment is due within thirty days, but a two percent discount may be taken if payment is made within ten days. Plaintiff argues, and the trial court agreed, that those discounts should be treated as interest income, which is not subject to the sbt. We disagree.
The dispute has its genesis in part because of how the sbt is calculated. A taxpayer takes its federal taxable income, to which certain adjustments are made. The adjustments are necessary because the federal tax is a tax on income (i.e., profits), while Michigan’s sbt is more akin to a value-added tax. See Haughey, The economic logic of the single business tax, 22 Wayne L R 1017 (1976). Thus, adjustments are made to add back items that reduce profit and therefore taken as deductions from the federal income tax, but do not reduce the value added to the product during production, such as compensation, MCL 208.9(5); MSA 7.558(9)(5), as well as dividends, interest, and royalties paid by the taxpayer, MCL 208.9(4)(d), (f), and (g); MSA 7.558(9)(4)(d), (f), and (g). Similarly, items such as interest, dividends, and royalties received by the taxpayer are removed from the tax base for calculation of the sbt, MCL 208.9(7)(a), (b), and (c); MSA 7.558(9)(7)(a), (b), and (c), because, although those items represent income for federal tax purposes, they do not represent value added to the product. That is, they do not result from the use of capital by the recipient. See Kasischke, Computation of the Michigan single business tax: Theory and mechanics, 22 Wayne L R 1069 (1976).
The question posed in this case is whether purchase discounts constitute interest under the sbt and, therefore, are deductible in determining the tax liase for calculation of the SBT. We conclude that they are not.
Plaintiff’s argument hinges on the fact that those discounts may be treated as income for federal income tax purposes. Plaintiff argues that we must, therefore, treat them as interest income under the requirements of MCL 208.2(2); MSA 7.558(2). We disagree.
First, we are not persuaded that pinchase discounts are necessarily defined as interest income under federal tax law. At most, federal tax regulations allow them to be treated as income. 26 CFR 1.471-3. And it is not necessarily the case that they should be treated as interest income. That regulation defines inventory cost basis as
the invoice price less trade or other discounts, except strictly cash discounts approximating a fair interest rate, which may be deducted or not at the option of the taxpayer, provided a consistent course is followed.
The option referred to in the regulation acknowledges that there are two generally accepted ways of accounting for purchase discounts. See Kieso & Weygandt, Intermediate Accounting (8th ed), p 387 (John Wyley & Sons, Inc, 1995). The first is the gross method, by which the purchases account is debited, and the accounts payable account is credited, for the full invoice price. When the bill is paid, the accounts payable account is debited for the full amount and, if the discount is taken, the cash account is credited for the actual amount paid and a “Purchase Discounts Taken” account is credited with the amount of the discount.
Under the net method, at the time of purchase, the purchases account is debited, and the accounts payable account is credited, with the purchase amount less the anticipated discount. If the discount is not ultimately taken, then the cash account is credited with the full payment amount when payment is made, while the accounts payable account is debited with the amount of the purchase (less the discount not taken) and a “Purchase Discounts Lost” account is debited by the amount the discount would have been. The Purchase Discounts Lost account becomes an expense account.
Plaintiff utilizes the gross method to account for the purchase discounts. It argues that the Purchase Discounts Taken account should be treated as interest income and, therefore, excluded from the SBT tax base. The fact that it may be acceptable to the Internal Revenue Service for plaintiff to treat Purchase Discounts Taken as income for federal tax purposes is not, in our view, dispositive of how those discounts should be treated for SBT purposes.
First, because of the nature of the federal income tax, it is not critical how the income is treated. Both the gross and net methods are accepted by the IRS because either method reaches the same amount of federal tax owed. See Revenue Ruling 73-65. That is, whether a taxpayer uses the net method to create an income account for discounts taken or an expense account for discounts lost, the amount of federal income tax owed remains the same. Id.
However, both methods do not arrive at the same tax for purposes of Michigan’s SBT. That is because, while the federal income tax is a tax on income, the SBT is a modified value-added tax. Therefore, its treatment of interest income differs from how interest income is treated under an income tax. Thus, unlike under federal tax law, it is critical under the SBTA whether we treat purchase discounts as interest income or not.
The Michigan Supreme Court addressed the definition of “interest” within the context of the SBTA in Town & Country Dodge, Inc v Dep’t of Treasury, 420 Mich 226; 362 NW2d 618 (1984). For comparative purposes, a detailed explanation of the transaction in Town & Country is helpful. The Court, in pertinent part, described it as: a customer buys a car for $10,000. He puts down a deposit of $2,000 and finances $8,000 over three years at sixteen percent. After taking into account the time value of money, a $26.57 time-price differential charge per $100 is assessed for a total time-price differential charge of $2,125.60 (26.57 x 80), making total payments to the dealer on the contract of $10,125.60. The dealer then takes the contract, extended over three years, and discounts this $10,125.60 note to a financial institution. A draft is drawn on the bank account of the financial institution or the financial institution remits its own check for the amount of $8,000 plus ... portion of the time-price differential charge. For purposes of this illustration, this portion of the time-price differential charge is $210 (approximately ten percent of the total time-price differential). Consequently, the dealer would then have a draft in the amount of $8,210 of its own, having left the balance of the time-price differential charge as profit for the financial institution. At issue in Town & Country was the characterization of this $210 premium in the hands of the car dealerships. The buyer would then directly pay the financial institution thirty-six monthly installments of $281.27 ($10,125.60/36 = monthly payments). There are no more checks given to the dealer and no more funds are being received by the dealer from the financial institution. However, in the event that the time-price differential agreement is paid off on a shorter basis or there is a default by the buyer resulting in a loss to the financial institution, there is a proportionate share of the time-price differential charge charged back to the dealer. For example, if the note is paid within two years, the dealer has a charge back of the one-year time-price differential charge that he has retained, inasmuch as such time-price differential charge has not been earned and in fact has been prepaid. At issue in Town & Country was also the characterization of this charge back to the plaintiff dealerships. Their contention was that it was “interest income” and therefore should be deducted from their sbta tax bases.
The Court found and the parties conceded that the time-price differential charges paid by the customer to the financial institution constituted “interest income.” The issue became whether this interest, in the hands of the financial institution, retained this characterization when it was rebated to the plaintiff’s car dealerships. The Court acknowledged that neither the SBTA nor federal tax law specifically defined “interest” and relied on rules of statutory interpretation in attempting to ascertain the intent of the Legislature. Town & Country, supra at 239-240. It held that, because the sbta did not specifically define “interest,” the Legislature intended that the word be construed according to its ordinary and primarily understood meaning, and therefore defined “interest” as
[compensation allowed by law or fixed by the respective parties for the use or forbearance of money, “a charge for the loan or forbearance of money,” or a sum paid for the use of money, or for the delay in payment of money. [Id. at 242, citing Batch v Detroit Trust Co, 312 Mich 146, 152; 20 NW2d 138 (1945); Coon v Schlimme Dairy Co, 294 Mich 51, 56; 292 NW 560 (1940); Marion v Detroit, 284 Mich 476, 484; 280 NW 26 (1938); Drennan v Herzog, 56 Mich 467, 469; 23 NW 170 (1885); 47 CJS, Interest & Usury, § 3, pp 18-22.]
In applying this definition to the facts in Town & Country, the Court held that any amount returned to the plaintiffs was not money paid for the use of or forbearance from using money and the rebates therefore were not interest income. It reasoned that because the addition of interest expense on their floor-plan financing to business income was mandated by statute, MCL 208.9(4)(f); MSA 7.558(9)(4)(f), a rebate or return to the plaintiffs of a portion of the finance charges that plaintiffs had paid in connection with the floor-plan financing of their inventories was not money paid to the plaintiffs for the use of money or the forbearance or delay in the use of money. Town & Country, supra at 244. It further reasoned that, although generally accepted accounting princi pies may have required that a return of a portion of that interest be credited on the dealerships’ books as “interest refund,” a refund of interest is not “interest income” within the meaning of the SBTA. Id.
In arriving at its decision, the Court also noted that, in general, exemptions from taxation are not favored and that statutory exemptions are construed strictly against the taxpayer. Id. at 242-243. It also acknowledged that “the propriety of a deduction does not turn upon general equitable considerations, such as a demonstration of effective economic and practical equivalence. Rather, it ‘depends upon legislative grace; and only as there is clear provision therefor can any particular deduction be allowed.’ ” Id. at 243 quoting Comm’r of Internal Revenue v Nat’l Alfalfa Dehydrating & Milling Co, 417 US 134, 148-149; 94 S Ct 2129; 40 L Ed 2d 717 (1974), and New Colonial Ice Co v Helvering, 292 US 435, 440; 54 S Ct 788; 78 L Ed 1348 (1934).
In the present case, the trial court found that plaintiff’s “purchase discounts taken” did constitute “interest income” because they represented money paid to plaintiff by its suppliers in exchange for the early forbearance of plaintiff’s money. Defendant argues that purchase discounts are not payment for the use or forbearance of money and do not comport with the definition of “interest” as set forth in Town & Country, supra at 242. Defendant supports this contention with the position that purchase discounts do not reflect the time value of money, as does interest, because, for example, pursuant to a 2/10, net 30 discount, a purchaser would be due the same discount on day one that would be available on day ten and would be due no discount whatsoever on days eleven through thirty. Defendant also finds compelling that plaintiffs suppliers were not in the commercial lending industry and merely offered the discounts as an incentive to its customers to pay their invoices in a timely manner.
In accord with defendant’s argument, the Supreme Court in Town & Country, supra at 243, appeared reluctant to allow an “interest income” deduction from a taxpayer’s sbt tax base for what the Court described as a “rebate.” The ordinary and common understanding of purchase discounts is that they are partial rebates of a purchaser’s invoice amount as an incentive for early payment. See Kieso & Weygandt, Intermediate Accounting (5th ed), p 330. Although, as plaintiff argues, there is a time element to this rebate, purchase discounts are not strictly time-price differential transactions that are usually associated with interest such as discount bonds or discounted chattel paper, which both rely strictly upon the time value of money to derive their prices. As noted in Town & Country, supra at 242-243, tax exemptions are strictly construed against the taxpayer. Also, this Court may not speculate on the probable intent of the Legislature beyond the intent expressed in the words of the statute and may not engage in judicial construction when the plain and ordinary meaning of the language is clear. Adrian School Dist v Michigan Public Schools Employees’ Retirement System, 219 Mich App 456, 461; 556 NW2d 524 (1996).
The definition of “interest” requires that the parties have “fixed” a rate for the use or forbearance of money, usually pursuant to a contract or by law. Town & Country, supra at 241, quoting Old Colony R Co v Comm’r of Internal Revenue Service, 284 US 552, 560; 52 S Ct 211; 76 L Ed 484 (1932). The contract in this case was a purchase agreement evidenced by an invoice. Plaintiff as the purchaser agreed to the full invoice price but, in the event it submitted payment within ten days, it would receive a rebate of the total invoice price. The parties here did not agree to any specific interest rate, nor was plaintiff contractually bound to forebear its money. Simply stated, plaintiff could take the discount or it could elect not to do so. Therefore, there was no contractual forbearance of money by plaintiff. Finally, as defendant properly argues, the Department of Treasury’s interpretation of purchase discounts as a reduction in the purchase price or a rebate is entitled to deference. Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 354; 564 NW2d 519 (1997).
The Court in Town & Country also was unpersuaded by how the taxpayers designated the funds in their corporate records and even disregarded compliance with generally accepted accounting principles (GAAP). Town & Country, supra at 244. Plaintiff spends considerable time arguing that under GAAP and under federal tax law “purchase discounts taken” are designated as “interest income.” First, as discussed above, under the gross method of accounting for p\irchase discounts, Revenue Ruling 73-65 states that these discounts are accounted for as “income” items and not “interest income.” Further, this income account is subtracted from the cost of goods sold account before computing gross income. Thus, the final result is that the taxpayer paid less for its inventory. The result would then be a higher federal gross income, and consequently, a higher sbt tax base before adjustments. The same result occurs when utilizing the net method of accounting for purchase discounts, except that these taxpayers do not have a “purchase discounts taken” account on their records, but rather an expense account “purchase discounts lost.” Plaintiff does not offer an explanation for why gross method taxpayers should receive this deduction while net method taxpayers should not merely because they have chosen a different accounting method. Thus, the trial court erred in finding that “purchase discounts taken” were “interest income” as defined by Town & Country, supra, and therefore excludable from plaintiff’s sbt tax base. These discounts appeared to constitute a “rebate” or “reduction in the cost of purchases,” rather than “interest income,” because federal tax law does not define these discounts as “interest” and plaintiff was not contractually bound to forebear the use of its money.
Simply put, a purchase discount taken is more akin to a reduction in the purchase cost of goods than it is to interest on money invested. We are satisfied that treating it as such not only means that a taxpayer will owe the same tax whether it employs the net or gross method of accounting for purchase discounts, but it is also more consistent with the purpose behind the sbt. That is, the taxpayer is taxed for the amount it adds to the value of the goods it purchases and thereafter sells.
Reversed. Defendant may tax costs.
If the discount is not taken, then the cash account is credited with the entire amount.
If the discount is taken, then the cash account is credited with the reduced amount actually paid.
An illustration might help illuminate this point. Let us say that XYZ Company buys widgets for $10,000 and sells them for $15,000. The ms expects tax to be paid on the $5,000 profit. Let’s assume that there is a two percent purchase discount available — a $200 savings if the invoice is paid within ten days.
A taxpayer who employs the gross method of accounting would still report a purchase cost of $10,000 with a profit of $5,000. However, it would also report the discount taken as income subject to tax. Therefore, it would report a taxable income of $5,200 — a $5,000 profit from sales and $200 in income from the discount (or what plaintiff would label as “interest income”). If no purchase discount were taken (because the invoice was not paid within ten days), then only the $5,000 profit would be reported as taxable income.
A taxpayer employing the net method would report the purchase cost as being $9,800 (the $10,000 purchase price less the purchase discount) whether the purchase discount was taken or not. If the discount is, in fact, taken, then the taxpayer would report a $5,200 profit as taxable income (and no other income for the discount). If the discount was not taken, then the taxpayer would report a $5,200 profit and deduct a $200 expense for the expense item of Purchase Discounts Lost, resulting in a taxable income of $5,000.
In either case, the ms is satisfied — the taxpayer pays tax on $5,200 if the discount is taken and on $5,000 if it is not. Because both methods arrive at the same taxable income for federal income tax purposes, both are acceptable to the irs.
The term “time value of money” is a term of art in the financial community and refers to the concept that a dollar received today is worth more than a dollar to be received in the future. See 9B Am Jur 2d, Bankruptcy, § 2631, pp 357-359.
In fact, the federal regulation that plaintiff relies upon, 26 CFR 1.471-3, refers to “a fair interest rate.” If we were to accept plaintiffs analysis and call this interest income, we do not believe the interest rate could be deemed fair. For example, if plaintiff were to make payment on the last day that the discount could be taken, it would be forbearing the use of its money for only one day, for which it earns a two percent discount. If we deem this to be interest, then it would equate to an annual interest rate of 730 percent. We do not believe that this could be considered a “fair interest rate.” In fact, if it were interest, it would be considered criminal usury. MCL 438.41; MSA 19.15(51). | [
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The Court orders that a special panel shall be convened pursuant to MCR 7.215(H) to resolve the conflict between this case and Bieker v Suttons Bay Twp Supervisor, 197 Mich App 628 (1993).
The Court further orders that the opinion in this case released May 8, 1998, is hereby vacated.
The appellant may file a supplemental brief within 28 days of the clerk’s certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant’s brief. Nine copies must be filed with the Clerk of the Court. | [
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Saad, J.
Appellant Bagley Acquisition Corporation (bac) contends that the use of payment plans by Detroit Edison Company (Edison) for office building owners who do not pay their bills in a timely manner constitutes impermissible rate discrimination against building owners who pay their bills on time. Following a hearing, the Public Service Commission (psc) dismissed bac’s complaint. We affirm.
i
BACKGROUND
Bac owns and operates the Michigan Building in downtown Detroit. On June 5, 1995, bac filed a complaint with the psc against Edison, asserting that Edison arbitrarily extended credit to certain commercial property owners and selectively entered into repayment plans rather than shutting off service. Bac contended that Edison should terminate service if a landowner is ten days late in making payment.
At the hearing, Anthony V. Pieroni, bac’s president, testified about a bill for $100,000 owed on the David Stott Building, and about other bills owed on the Book Building. Pieroni also testified that 220 Bagley, Inc. (the previous owner of the Michigan Building), incurred in excess of $200,000 in electric bills that were never paid.
Edison’s manager of customer services testified that Edison entered into special payment arrangements with certain buildings when it might otherwise have no recovery at all. He testified that it is very difficult to deny service under commission rules when a corporation changes its name. He also testified that no rule requires Edison to shut off service and that payment arrangements are offered to commercial customers only after they have experienced payment problems.
The PSC opinion and order dismissed BAC’s complaint, finding that it was based on a misinterpretation of the relevant statute. Bac’s motion to reopen the record to admit evidence of additional arrearages was denied, because the psc did not believe that the evidence sought would affect the outcome.
n
ANALYSIS
The standard of review for PSC orders is narrow and well established. Pursuant to MCL 462.25; MSA 22.44, all rates, fares, charges, classifications, regulations, practices, and services prescribed by the PSC are presumed to be prima facie lawful and reasonable. A party aggrieved by an order of the PSC bears the burden of proving by clear and convincing evidence that the order is unlawful or unreasonable. MCL 462.26(8); MSA 22.45(8). A reviewing court gives due deference to the administrative expertise of the PSC and is not to substitute its judgment for that of the psc. Marshall v Consumers Power Co (On Remand), 206 Mich App 666, 676-677; 523 NW2d 483 (1994).
MCL 460.557(4); MSA 22.157(4) provides:
The rates of an electric utility shall be just and reasonable and a consumer shall not be charged more or less than other consumers are charged for like contemporaneous service rendered under similar circumstances and conditions. If an electric utility doing business within this state . . . charges ... or receives ... a greater or lesser compensation for a service rendered than the electric utility charges, demands, collects, or receives from any other person, partnership, or corporation for rendering a like contemporaneous service, the electric company is guilty of unjust discrimination which is hereby prohibited and declared to be unlawful. In addition, a person, partnership, or corporation shall not... ask, demand, or accept a rebate, draw-back, or other device by which the person, partnership, or corporation shall obtain electric service for a rate less than that charged others in like circumstances.
There is no Michigan case law construing this portion of the statute in a context similar to that presented here. The statute clearly prohibits charging similarly situated customers different rates. Cf. Attorney General v Public Service Comm, 141 Mich App 505, 508-509; 367 NW2d 341 (1984) (not unlawful discrimination to charge different rates for “principal” residence and “alternate” residence). Allowing some customers discounts on unpaid bills, while denying that discount to other customers would violate the statute. However, there is no showing that this is Edison’s practice. Indeed, Edison’s manager of customer services testified that the company does not knowingly enter into a payment arrangement that does not include payment or expected payment of the total amount owing. Because bills are sent only after the electricity has already been used, and notice pro visions must be complied with, it may take 105 to 115 days before service could be cut off to a nonpaying customer. Psc rules require that reasonable attempts to effect collection be made before initiating a cutoff. Customers are all charged the same rates, and, in fact, Edison may collect more from customers on payment plans because of late charges. This testimony shows that the use of payment programs is intended not to favor certain customers, but to maintain the rate base, favoring all customers.
Bac has failed to acknowledge that under its theory, any customer’s failure to pay a bill results in a net payment of a different rate. If a commercial building does not pay its bill and service is cut off, it would have been provided a discriminatoiy rate if the bill is never paid. Thus, bac’s proposed solution of cutting off power after a bill is ten days overdue does not solve the purported rate discrimination problem. The PSC interpreted MCL 460.557(4); MSA 22.157(4) to permit utilities to develop and implement reasonable collection practices that apply equally to all customers. We defer to its findings that Edison’s practices were reasonable and that BAC’s claims therefore should be rejected.
Affirmed.
Bac also argues that the psc erred in denying bac’s motion to reopen the proceedings to admit additional evidence regarding other arrearages that was not disclosed by Edison. At the pretrial conference, Edison objected to producing information that would disclose the identity of its customers. In response, bac stated that it did not need any more documents from Edison. The parties acknowledged that the information provided to bac was not an exhaustive list of all arrearages. By failing to pursue further discovery below, bac failed to preserve this issue for review. See Harville v State Plumbing & Heating, 218 Mich App 302, 323-324; 553 NW2d 377 (1996) (error requiring reversal cannot be error to which the aggrieved party contributed by plan or negligence). | [
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Taylor, C.J.
At issue in this case is whether a pro se litigant, who is also an attorney, may recover “court costs and actual attorney fees,” MCL 15.271(4), after he or she brings a successful action under the Open Meetings Act. We conclude that because an attorney is defined as an agent of another person, there must be separate identities between the attorney and the client before the litigant may recover actual attorney fees. Accordingly, we reverse the judgment of the Court of Appeals that held to the contrary, and remand to the trial court for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
Torger Omdahl, an attorney proceeding in propria persona, sued his former client, the West Iron County Board of Education, for violations of the Open Meetings Act (OMA), MCL 15.261 et seq. The trial court granted judgment for Omdahl, ruling that the board violated the OMA by failing to take minutes at two closed sessions. However, the trial court denied Omdahl’s request for attorney fees. Omdahl appealed.
The Court of Appeals, in a divided decision, reversed the denial of attorney fees and costs. Omdahl v West Iron Co Bd of Ed, 271 Mich App 552, 553; 722 NW2d 691 (2006). The majority noted the general rule that a party proceeding in propria persona is not entitled to an award of attorney fees. Id. However, MCL 15.271(4) of the OMA specifically mandates an award of actual attorney fees to a prevailing plaintiff. Omdahl, supra at 554. The Court recognized a split of authority in contexts other than the OMA regarding whether an attorney proceeding in propria persona could collect attorney fees. Id. It found unpersuasive the argument that allowing an attorney plaintiff proceeding in propria persona to collect attorney fees would create a cottage industry that would subsidize attorneys without clients. Id. at 555. The majority then stated:
[A]s Abraham Lincoln is quoted as saying, “a Lawyer’s time and advice are his stock in trade.” We see no reason why plaintiff should be expected to give away his stock in trade merely because he is seeking to redress a wrong on his own behalf, and in which the public always has an interest, instead of on behalf of a third party. Whether representing himself or a client, he is investing the time. It is time he could have invested on behalf of another client who would have paid a fee. [Id. at 556-557.]
The majority declined to read “actual attorney fees” as requiring an actual physical bill or the actual payment of a fee. Id. at 557-558. Rather, it concluded that the actual attorney fees constituted the value of the professional time Omdahl invested in the case. Id. at 559.
Judge KELLY dissented, stating that the statute referred to “actual” attorney fees; “actual” was defined as “ ‘existing in act, fact, or reality; real’ ”; and Omdahl did not demonstrate that the fees he sought existed in act, fact, or reality. Id. at 561, quoting People v Yamat, 475 Mich 49, 54 n 15; 714 NW2d 335 (2006) (internal quotation omitted). She opined that it was inappropriate to rely on cases addressing other statutes or court rules because the statute at issue in the instant case unambiguously requires that the attorney fees actually be incurred. Omdahl, supra at 562 (KELLY, J., dissenting). With respect to the quotation from Abraham Lincoln, Judge KELLY stated: “And although Abraham Lincoln recognized the value of a lawyer’s ‘time and advice,’ the OMA does not provide for a recovery of this time or effort.”
Defendant board of education sought leave to appeal in this Court, arguing that (1) the plain language of MCL 15.271(4) requires “actual attorney fees,” (2) an attorney representing himself or herself could not claim actual attorney fees because he or she was not obligated to reimburse himself or herself for services, (3) the Court of Appeals impermissibly engaged in judicial legislation by not applying the statute as clearly written, and (4) if the Court of Appeals published opinion was allowed to stand it would wreak havoc not only in this case but on future litigation involving statutory construction. This Court ordered oral argument on whether the application for leave to appeal should be granted. 477 Mich 961 (2006).
II. STANDARD OF REVIEW
The interpretation of a statute presents an issue of law that is reviewed de novo. Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559, 566; 640 NW2d 567 (2002). Our primary purpose when construing a statute is to effectuate legislative intent. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). Legislative intent is best determined by the language used in the statute itself. Id. When the language is unambiguous, we give the words their plain meaning and apply the statute as written. Id.
III. ANALYSIS
The OMA was enacted by the Legislature in 1968 to consolidate the hodgepodge of statutes requiring governmental accountability and disclosure. Booth v Univ of Michigan Bd of Regents, 444 Mich 211, 221; 507 NW2d 422 (1993); 1968 PA 261. The Booth Court explained that legislators perceived that, by promoting openness of governmental deliberations, the act would cause responsible decision making and minimize abuse of power. Booth, supra at 223. Because the act initially failed to provide for an enforcement mechanism or penalties for noncompliance, the act was repealed and reenacted by 1976 PA 267 to remedy the oversight and “promote a new era in governmental accountability.” Booth, supra at 222. One of these newly enacted enforcement provisions was MCL 15.271(4), which provided that a successful party could recover court costs and actual attorney fees. It is this provision under which Omdahl claims he is entitled to attorney fees even though he was a pro se litigant in the OMA action.
In determining whether a party is entitled to statutory attorney fees, the first thing to consider is the statutory language itself. The relevant provision of the OMA, MCL 15.271(4), states:
If a public body is not complying with this act, and a person commences a civil action against the public body for injunctive relief to compel compliance or to enjoin further noncompliance with the act and succeeds in obtaining relief in the action, the person shall recover court costs and actual attorney fees for the action.
Because Omdahl prevailed in his action against the board of education under the OMA, the only question was whether there were “actual attorney fees” for Omdahl to recover.
The meaning of these three words is central to the resolution of this case. The word “actual” means “ ‘existing in act, fact, or reality; real.’ ” Yamat, supra at 54 n 15, quoting Random House Webster’s College Dictionary (1997). “Attorney” is defined as a “lawyer” or an “attomey-at-law.” Random House Webster’s College Dictionary (2001). The definition of “lawyer” is “a person whose profession is to represent clients in a court of law or to advise or act for them in other legal matters.” Id. (emphasis added). And the definition of “attorney-at-law” is “an officer of the court authorized to appear before it as a representative of a party to a legal controversy.” Id. (emphasis added). Clearly, the word “attorney” connotes an agency relationship between two people. “Fee” is relevantly defined as “a sum charged or paid, as for professional services or for a privilege.” Id.
The courts of this state as well as the federal courts have, in deciding cases of this sort, focused on the concept that an attorney who represents himself or herself is not entitled to recover attorney fees because of the absence of an agency relationship.
In Laracey v Financial Institutions Bureau, 163 Mich App 437, 441; 414 NW2d 909 (1987), the Court of Appeals considered whether an attorney acting in propria persona could collect attorney fees under MCL 15.240(4) of the Michigan Freedom of Information Act (FOIA). That act provided that the fees, to be award-able, had to be “reasonable attorney fees.”
The Court stated that an attorney proceeding in propria persona actually had no attorney for the purpose of the attorney fee provision and thus no fees were recoverable. Laracey, supra at 445. In doing so, it relied on the reasoning from the Eleventh Circuit in Duncan v Poythress, 111 F2d 1508, 1518 (CA 11, 1985) (Roney, J., dissenting):
For there to be an attorney in litigation there must be two people. Plaintiff here appeared pro se. The term “pro se” is defined as an individual acting “in his own behalf, in person.” By definition, the person appearing “in person” has no attorney, no agent appearing for him before the court. The fact that such plaintiff is admitted to practice law and available to be an attorney for others, does not mean that the plaintiff has an attorney, any more than any other principal who is qualified to be an agent, has an agent when he deals for himself. In other words, when applied to one person in one proceeding, the terms “pro se” and “attorney” are mutually exclusive. [Laracey, supra at 445 n 10, quoting Duncan, supra (Roney, J., dissenting).]
The Court of Appeals thus determined that a plaintiff attorney proceeding in propria persona is not entitled to attorney fees under FOIA. **4
Building on Laracey, the Court of Appeals in Watkins v Manchester, 220 Mich App 337, 341-344; 559 NW2d 81 (1996), in construing the attorney fee provisions in the case evaluation rules that gave “reasonable” attorney fees, held that a defendant attorney who represents himself or herself is not entitled to an award of attorney fees under MCR 2.403(O). While the statutory and court rule language interpreted in Laracey and Watkins differed somewhat from the language in the present statute in that the attorney fees were to be “reasonable” as opposed to “actual,” the courts in both cases focused on the availability of any attorney fees when the agency relationship was missing, which is also the situation here.
In Falcone v Internal Revenue Service, 714 F2d 646 (CA 6, 1983), the Sixth Circuit similarly held that a pro se attorney may not recover attorney fees under 5 USC 552(a)(4)(E) of the federal Freedom of Information Act where attorney fees to be allowable had to be reasonable. In so concluding, the court stated, “The fortuitous fact that such a FOIA plaintiff is also an attorney makes no difference. Both a client and an attorney are necessary ingredients for an award of fees in a FOIA case.” Falcone, supra at 648.
Similarly, the United States Supreme Court in Kay v Ehrler, 499 US 432, 435, 438; 111 S Ct 1435; 113 L Ed 2d 486 (1991), affirmed the Sixth Circuit in holding that a successful in propria persona attorney may not recover attorney fees under 42 USC 1988, where the fees were allowed if reasonable. It noted that the use of the word “attorney” assumed an agency relationship and found it likely that Congress intended to predicate an award under § 1988 on the existence of an attorney-client relationship. Kay, supra at 435-436. After noting that the circuit court interpreted the statute as assum ing there was a “ ‘paying relationship between an attorney and a client,’ ” the Court agreed “that the overriding statutory concern is the interest in obtaining independent counsel for victims of civil rights violations.” Id. at 435, 437.
In the instant case, the Court of Appeals reliance on the case that predated Laracey and Watkins, Wells v Whinery, 34 Mich App 626; 192 NW2d 81 (1971), was misplaced. While the issue in Wells was whether an attorney plaintiff who represented himself could recover attorney fees under MCL 600.2522, that Court neglected to directly consider whether an agency relationship existed, Wells, supra at 630, and is unpersuasive, as Watkins concluded, Watkins, supra at 342.
Thus, with these definitions and the caselaw we have discussed in mind, it being clear that there was no agency relationship between two different people, there was no lawyer-client relationship as understood in the law. Therefore, there were no “actual attorney fees” for Omdahl to recover under MCL 15.271(4).
IV CONCLUSION
In sum, by its plain terms, the phrase “actual attorney fees” requires an agency relationship between an attorney and the client whom he or she represents. Therefore, there must be separate identities between the attorney and the client, and a person who represents himself or herself cannot recover actual attorney fees even if the pro se individual is a licensed attorney. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the trial court for proceedings consistent with this opinion.
Reversed and remanded to the trial court.
Corrigan, Young, and Markman, JJ., concurred with Taylor, C.J.
We have applied the plain and unambiguous meaning of the term “attorney” by discerning the reasonable meaning of the term through relevant dictionary definitions. The dissent claims that the definitions of “attorney” do not explicitly require an agency relationship; however, the most reasonable interpretation of the term does require such a relationship, and the dissent does not cite a single instance in which “attorney” is defined in any context other than an agency relationship. The dissent compounds its erroneous analysis by ignoring the fact that the word “fees,” as used in the statute, is modified not only by the word “actual,” but also by the word “attorney.”
We note in passing that these courts also relied on several public policy grounds in reaching their conclusions. In Falcone v Internal Revenue Service, 714 F2d 646, 647-648 (CA 6, 1983), the Sixth Circuit Court of Appeals reasoned that the attorney fee provision was intended to reheve plaintiffs of the burden of legal costs, not to provide pro se plaintiffs a windfall for fees never incurred; the provision was intended to encourage prospective plaintiffs to seek the advice of detached and objective legal professionals; and the provision was not intended to create a cottage industry for clientless attorneys. The Court of Appeals in Laracey v Financial Institutions Bureau, 163 Mich App 437, 444-446; 414 NW2d 909 (1987), relied on the first and third grounds stated in Falcone, supra. In Kay v Ehrler, 499 US 432, 437-438; 111 S Ct 1435; 113 L Ed 2d 486 (1991), the United States Supreme Court also noted that the purpose of the provision was to encourage prospective plaintiffs to seek the advice of detached and objective counsel. And the Court of Appeals in Watkins v Manchester, 220 Mich App 337, 343-345; 559 NW2d 81 (1996), in addition to relying on Laracey, supra, and Kay, supra, noted that pro se attorneys should not be able to recover for time that could have been spent representing other clients when pro se plaintiffs who were not attorneys also could suffer lost income or business opportunities as a result of time spent in litigation. While this public policy reasoning may be of interest, we decline to rely on it here because the statutory language can be applied plainly without resort to public policy analysis; thus, the dissent’s claim that we have relied on public policy to reach our decision in the instant case is unfounded.
MCL 15.240(4) provided:
If a person asserting the right to inspect or to receive a copy of a public record or a portion thereof prevails in an action commenced pursuant to this section, the court shall award reasonable attorneys’ fees, costs, and disbursements. If the person prevails in part, the court may in its discretion award reasonable attorneys’ fees, costs, and disbursements or an appropriate portion thereof. The award shall be assessed against the public body hable for damages under subsection (5). [Emphasis added.]
While the dissent criticizes the majority for relying on cases interpreting the statutory language “reasonable attorney fees,” and claims that the difference between actual attorney fees and reasonable attorney fees is significant, we note that our focus in this case is on “attorney” not “actual.” In this respect, the dissent’s attempt to distinguish Laracey fails. Laracey is relevant because both Laracey and the instant case involve attempts by an attorney appearing in propria persona to recover attorney fees. We find Laracey persuasive for the relevant portion of its holding, which states that “both a client and an attorney are necessary ingredients for an attorney fee award.” Laracey, supra at 446. Contrary to Justice Weaver’s assertion, the term “reasonable,” as used in the statute in Laracey, does not affect this analysis. | [
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Cavanagh, J.
The issue presented in this case is whether entry into an enclosure by crawling under a fence constitutes the crime of entry without breaking, MCL 750.111; MSA 28.306. The Court of Appeals held that a fence is included in the catchall category of “structure” contained in the statute. We disagree with the Court of Appeals and hold that a fence is not a structure for the purposes of the statute.
i
The defendant was arrested for stealing four crushed pop cans from a 7-UP distribution center. Apparently, he slid under the fence surrounding the center through a six- to eight-inch depression in the ground, picked up the cans, and put them in his pocket. He was discovered by the police holding on to the back of a trailer parked within the fenced area. When questioned by the police, he admitted that he did not have permission to be in the center, and that he had gained access to the enclosure by crawling under the fence.
Defendant was convicted of entry without breaking at a bench trial before Recorder’s Court Judge Michael F. Sapala. Instrumental to the conviction was Judge Sapala’s finding that the fenced enclosure was “part of the business,” and, therefore, entry through the fence into the enclosure constituted entry into a structure. The Court of Appeals affirmed the conviction, holding that “our Legislature contemplated a fence that is used to enclose and protect property and is ‘an integral part of a closed compound’ when it included the term ‘structure’ in the breaking and entering and entering -without breaking statutes.” 215 Mich App 699, 709; 547 NW2d 349 (1996) (citations omitted). We granted leave to appeal.
n
The crime of entry without breaking is defined as:
Any person who, without breaking, shall enter any dwelling, house, tent, hotel, office, store, shop, warehouse, bam, granary, factory or other building, boat, ship, railroad car or structure used or kept for public or private use, or any private apartment therein, with intent to commit a felony or any larceny therein, shall be guilty of a felony punishable by imprisonment in the state prison not more than 5 years, or fined not more than $2,500.00. [MCL 750.111; MSA 28.306.]
While the term “fence” or “fenced enclosure” does not appear in the specifically enumerated terms of the statute, both the trial court and the Court of Appeals found that a fence is included in the general term “structure.” The question before us is whether, in the context of the statute, the word structure was meant to include a fence.
Our first step in interpreting a statute is to look at the “common and approved usage” of the word in question. People v Fields, 448 Mich 58, 67; 528 NW2d 176 (1995). This principle of statutory construction requires us to look at the ordinary meaning given to the term “structure.” Unfortunately, the ordinary meaning of the word structure provides little guidance in this case. In People v Adams, 75 Mich App 736; 255 NW2d 752 (1977), the Court of Appeals explained that structure is traditionally defined to include “ ‘any production or piece of work artificially built up or composed of parts joined together in some definite manner; any construction or edifice for any use; or that which is built, such as a dwelling house, church, shed, or store.’ ” Id. at 738, quoting 2 Wharton, Criminal Law & Procedure, § 428, pp 49-50. Thus, the ordinary meaning of the term structure is broad enough to cover everything from a building to a breadbox. Certainly, entry into a breadbox is not the type of criminal behavior contemplated by the Legislature. We believe the Legislature intended a more narrow interpretation of the word “structure.”
When the ordinary meaning of a term is not helpful, this Court has traditionally looked to a second principle of statutory construction, ejusdem generis. This principle was stated by this Court in People v Brown, 406 Mich 215, 221; 277 NW2d 155 (1979):
“This is a rule whereby in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated.” [Quoting People v Smith, 393 Mich 432, 436; 225 NW2d 165 (1975).]
In Smith, this Court used the principle of ejusdem generis to interpret the statutory offense of carrying a concealed weapon. The defendant was prosecuted after the police found an m-i rifle under the front seat of his car. The concealed weapons statute made it illegal for a person to so “carry a dagger, dirk, stiletto, or other dangerous weapon.” We held that the term “other dangerous weapon” was limited to a stabbing weapon when it followed the terms “dagger, dirk, stiletto” in the statute. Therefore, the defendant’s rifle was not included in the general term “other dangerous weapon” for the purposes of that statute.
Similarly, in the statute before us, the terms dwelling, house, tent, hotel, office, store, shop, warehouse, bam granary, factory or other building, boat, ship, and railroad car all appear before the term structure. The commonality shared by all these terms is that they are buildings or structures that may be entered into. Indeed, the purpose of the statute is to prohibit the unlawful entry into a building or structure. Because all the specific terms listed in the statute are limited to places that may be entered into, the general term structure must also be so limited.
The dissent argues that the use of ejusdem generis is inappropriate in this case because the term structure is not preceded by the modifying word “other” in the statute; therefore, the language employed by the Legislature manifests an intention for the term structure to be read expansively. We agree with the dissent that the doctrine of ejusdem generis does not apply to a statute where the context of the statute manifests a contrary intention. A good example of such a situation is presented in In re Forfeiture of $5,264, 432 Mich 242; 439 NW2d 246 (1989), cited by the dissent. In that case, the Court was concerned with whether the forfeiture provision of the controlled substances act applied to real property. The relevant provision of the act stated that it was to cover “any thing of value . . . including but not limited to money, negotiable instruments, or securities. ...” Id. at 252-253, n 7 (emphasis in original). The Court refused to apply ejusdem generis because the statute in question clearly evidenced an intention not to limit items covered by the statute to the types of things specifically listed.
In contrast, we find no such manifestation of intent in the context of the present statute. First, none of the cases cited by the dissent require the use of a modifying term such as “other” to come before the general term in a statute. The absence of “other” before “structure” does not, by itself, prohibit the use of ejusdem generis. Second, a sensible reading of the statute supports the use of ejusdem generis. As mentioned above, a broad reading of the word structure would criminalize entry into everything from a building to a breadbox, and we believe the Legislature did not intend such a broad definition of structure. Moreover, the statute before us does contain a list of specific words, all of which are of “the same kind, class, ... or nature.” Id. It is exactly the type of statute where the doctrine of ejusdem generis has traditionally been used to aid in statutory interpretation. Therefore, under the principle of ejusdem generis, a structure must be something that one may physically enter into.
The only remaining question is whether a fence is a structure that one may physically enter into. We hold that it is not. Of course one could enter into a fenced “area,” as the defendant did in the instant case. However, only the fence itself is “built up or composed of parts joined together,” Adams, supra at 738; on the other hand, the “area” is merely a piece of land on which a person can trespass. The area does not consist of anything built up, or anything made of parts joined together. Thus, limiting our consideration to the fence itself, we hold that a fence is not a structure that may be entered into. As counsel for the defendant stated at oral argument:
[Y]ou can’t be inside a fence. You can be on one side or the other or on top or underneath, but you can’t be inside a fence. You can be on the property if you’re on the wrong side of the fence, but you can’t be in the fence.
Noticeably absent from the terms in the statute is anything resembling a fence. The Legislature chose not to include fence, wall, gate, or barrier in the statute. Nor did it include fenced enclosure, compound, or secured area. If the Legislature wanted to criminalize crawling under a fence as entry without breaking, it easily could have done so. For whatever reason, it chose not to include a fence in the statute, and we are not inclined to reword the statute to mean something the Legislature did not intend.
We note that nothing in this opinion should be construed to legalize crawling under a fence to steal. A person who does so may be guilty of trespassing and larceny or intent to commit larceny. However, in this case the defendant’s quest for pop cans, although criminal, did not violate this particular statute.
m
The defendant also argues that the prosecution failed to fulfill its duty to render reasonable assistance in locating and serving process on a defense witness. Because of our disposition of the case on the basis of the language of the statute itself, it is unnecessary for us to reach this issue.
IV
Because we find a fence is not a structure under the entry without breaking statute, the decision of the Court of Appeals is reversed, and the defendant’s conviction is vacated.
Mallett, C.J., and Brickley and Kelly, JJ., concurred with Cavanagh, J.
The defendant was originally charged with breaking and entering, MCL 750.110; MSA 28.305. On a motion for directed verdict by the defendant at the close of the prosecution’s proofs, the trial judge found that there was no evidence of a breaking and reduced the charge to entry without breaking.
MCL 750.227; MSA 28.424.
Another part of the statute made it illegal to carry a concealed pistol. We also held that an m-i rifle did not fit the definition of a pistol.
The Court did note that the defendant could have been properly charged with carrying a firearm or dangerous weapon with unlawful intent. MCL 750.226; MSA 28.423. Thus, the defendant’s actions may have been criminal, just not by means of the statute under which he was charged.
MCL 333.7521(1)©; MSA 14.15(7521)(l)ffl.
In the first case relied on in the dissent, Pennsylvania Steel Co v J E Potts Salt & Lumber Co, 63 F 11 (CA 6, 1894), the Court never makes a distinction between the words “structure” and “other structure,” as asserted by the dissent. Bather, the case stands for the proposition that a general term following a list of more specific terms is limited by those specific terms. The limitation of the general term is not conditional upon the existence of the word “other” in the statute.
The other case relied on by the dissent, C K Eddy & Sons v Tierney, 276 Mich 333; 267 NW 852 (1936), involved a statute that used the terms “building, structure, or premises.” The Court held that the three terms were used disjunctively, and therefore, the doctrine of ejusdem generis should not apply. In that statute, the Legislature used three general terms, none of which was specific enough to limit the others. The Court properly concluded that the three general terms were not modified by each other, and therefore, ejusdem generis was inappropriate. In contrast, the statute in the present case contains a list of specific terms followed by a general term, rather than a series of general terms used disjunctively.
This is still the case if the listed words in the statute are divided into two groups, as advocated by the dissent. “[B]oat, ship, [and] railroad car” are still all structures that may be entered into.
MCL 767.40a; MSA 28.980(1). | [
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Brickley, J.
I
In this case, we are called upon to determine the priority of coverage of several insurance policies, all of which admittedly provided coverage for the automobile accident that is the subject matter of the underlying lawsuit. We conclude that a distinct difference exists between “true” excess insurance coverage and excess “other insurance” on the basis of the difference in policy types within the insurance industry, the premiums charged for and risks assumed by the policies, the language of the policies, and the reasona ble expectations of all the contracting parties. This difference requires an excess “other insurance” policy to be exhausted before “true” excess insurance policies are required to contribute to a loss. Thus, we reverse the decision of the Court of Appeals and reinstate the judgment of the trial court.
n
The underlying suit, upon which this matter is based, began as a wrongful death action arising from a truck-bicycle accident in which fifteen-year-old Eric John Bosco was killed. Primary defendant Chris Bauermeister was driving the truck, which was owned by primary defendant Kenneth Cook. At the time of the accident, Bauermeister was acting in the course of his employment with Flint Canvas Company and Flint Tent & Awning, Inc. The case was tried before a jury, which found in favor of the Bosco estate and the eight persons entitled to recover for the death of the decedent. Damages of $1,044,903.25 were assessed in favor of the Bosco estate, with set-offs of $556,000 from no-fault funeral benefits and two prior settlements. The net verdict was $613,569.08.
This appeal involves five insurance policies covering the various defendants in this matter: (1) Continental Insurance Company issued an automobile policy to Kenneth Cook, the owner of the truck, with a $500,000 limit; (2) USAA Casualty Company, Inc., issued an automobile policy to Chris Bauermeister’s father, which covered his son, with a $100,000 limit; (3) Usaa also issued a $1,000,000 personal umbrella policy to Chris Bauermeister’s father that covered his son; (4) Frankenmuth Mutual Insurance Company, Inc., issued an automobile policy to Flint Canvas with a $250,000 limit; and (5) Auto-Owners Insurance Company, Inc., issued a $1,000,000 executive umbrella policy to Kenneth Cook.
The Continental policy was previously determined to be primary by this Court in Frankenmuth Mut Ins Co, Inc v Continental Ins Co, 450 Mich 429; 537 NW2d 879 (1995), and is not directly involved in the present controversy. Frankenmuth filed that declaratory action to determine which insurance company was primary and, thus, responsible for the primary defendants’ defense. Continental already paid plaintiff the $500,000 policy limit before trial, which was approved by the trial court. Frankenmuth settled with plaintiff for $55,000 of the $250,000 policy limit and, in exchange, plaintiff executed a covenant not to enforce judgment, which extinguished Frankenmuth’s potential liability for the remaining $195,000. This settlement was also approved by the trial court. In this covenant, it was stated that no representations were made regarding the insurance coverages of the various companies involved and that the layers of coverages were undetermined at that time.
After judgment was entered, plaintiff filed affidavits and writs of garnishment against Auto-Owners and usaa. Usaa voluntarily paid the $100,000 primary policy limit, and plaintiff’s garnishment action continued with regard to Auto-Owners’ and usaa’s liability under their umbrella policies.
Usaa asserted that it was entitled to a credit against the judgment of $195,000 under its umbrella policy, that portion being Frankenmuth’s unpaid policy limit. Usaa paid one-half of the amount owing on the judgment in excess of $195,000 under its umbrella policy, having filed a disclosure admitting liability in part and denying liability in part. Auto-Owners initially asserted that it was not responsible for any portion of the judgment because of the bad-faith failure of the underlying insurance carriers to settle plaintiff’s claims within the limits of their policies and because of contractual limitations in its policy. All parties to the garnishment action filed motions for summary disposition.
The trial court granted plaintiff’s motion for summary disposition and usaa’s counter motion for summary disposition, holding that there were three layers of coverage in this case: (1) the primary coverage provided by Continental ($500,000), (2) the excess “other insurance” coverage provided by USAA ($100,000) and Frankenmuth ($250,000), and (3) the “true” excess or umbrella coverage provided by Auto-Owners and usaa, each $1,000,000. Thus, there was $850,000 of coverage available before the umbrella policies were required to contribute. The trial court also held that plaintiff was not entitled to recover the $195,000 because he did not exhaust the limits of the Frankenmuth policy. Thus, the trial court’s decision required that the first two layers of insurance coverage be exhausted before the umbrella policies would be required to contribute to the loss. The trial court then prorated liability between usaa and Auto-Owners under their umbrella policies for the portion of the judgment that exceeded the three other policy limits. The Court of Appeals reversed the decision of the trial court and denied usaa’s motion for rehearing.
The language contained in the various policies must be examined to properly analyze this controversy and to explain the results reached by the trial court and the Court of Appeals. The USAA primary policy contained the following pertinent language:
If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance. [Emphasis added.]
The Frankenmuth policy provided the following, in pertinent part:
If the Insured has other insurance against a loss covered by Part B [residual liability agreements] of this policy the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the Declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or a non-owned automobile shall be excess insurance over any other valid and collectible insurance. [Emphasis added.]
This policy also contained a Michigan employers nonowned automobile liability and hired automobile endorsement, which provided:
The insurance afforded by this endorsement shall be excess insurance over any other valid and collectible insurance available to the insured.
The personal umbrella policy issued by USAA contained the following pertinent provision:
We provide excess liability protection for occurrences covered by primary insurance. We are responsible for the amount of loss above the limit of the applicable primary insurance up to Policy Limit. Payment of legal and loss expenses is in addition to the Policy Limit. [Emphasis added.]
The Michigan amendatory endorsement applicable to this policy provides:
If there is other valid and collectible insurance which covers a loss also covered by this policy, ours will be excess. However, if the other insurance is written specifically to cover as excess over the Primary Insurance limits of liability shown on the Declarations, then we will pay only our proportionate share of the loss. [Emphasis added.]
Finally, the executive umbrella policy issued by Auto-Owners covered the amount for which the insured is liable in excess of the “[r]etained limit,” which is the greater of (1) the sum of the limits of liability stated for each policy listed or insurance described in schedule A and applying to any other underlying insurance, or (2) “$250 with respect to any one occurrence not covered by other insurance.” Additionally, this policy contained provisions regarding other insurance:
If other insurance covering a loss also covered by this policy is available to the insured, the insurance afforded by this policy shall be excess of such other insurance. This does not apply with respect to insurance purchased to apply excess of this policy. [Emphasis added.]
This policy also contained a separate Michigan amendatory endorsement, which provided:
With respect to the Other Insurance Condition, this insurance will prorate with other similar insurance written excess of the same limits of underlying insurance. [Emphasis added.]
The Court of Appeals, in reversing the decision of the trial court, held that the Frankenmuth policy provided primary and excess coverage in certain limited circumstances. 212 Mich App 421, 429; 539 NW2d 517 (1995). In those limited circumstances, the Frankenmuth policy provides excess insurance, “nothing more, nothing less.” Id. at 431. The Court of Appeals further held that the Frankenmuth policy was “ ‘similar insurance written excess of the same limits of underlying insurance’ under Auto-Owners’ policy or ‘other valid and collectible insurance which covers a loss also covered by [the umbrella] policy’ under usaa’s umbrella policy.” Id. at 432. Finally, the Court of Appeals held that the Frankenmuth policy did not limit its excess coverage to prevent concurrent coverage by umbrella policies, and the Auto-Owners or USAA policies did not refuse contribution with policies providing such excess insurance. Id. The Court of Appeals concluded that the three policies were responsible pro rata for the remainder of the liability, thereby also rejecting plaintiff’s argument that the Frankenmuth policy was excess to the umbrella policies. Id. at 434, n 3.
in
A. POLICY LANGUAGE
This Court adheres to the rule that the policy language must be given effect, if at all possible. See St Paul Fire & Marine Ins Co v American Home Assurance Co, 444 Mich 560, 570; 514 NW2d 113 (1994). Thus, the policy language is most important in our analysis. The Court of Appeals attempted to follow this Court’s mandate that “certainty and simplicity” should not be achieved at the “cost of nullifying the negotiated intent of the parties.” Bosco, supra at 431, citing St Paul, supra at 577. However, the Court of Appeals analysis of the policy language failed to give meaning to all the pertinent policy language.
First, we will look to the language of the Auto-Owners policy and how its language functions with the language of the Frankenmuth policy. Auto-Owners argues that in order for the Frankenmuth policy not to be the underlying insurance, it must fit into one of two categories: (1) a policy written specifically to be excess of the Auto-Owners policy, or (2) a policy sufficiently similar to qualify for proration with the Auto-Owners policy. With regard to the first category, no evidence was presented, and no language in the Frankenmuth policy indicates, that it was purchased to be excess of the Auto-Owners umbrella policy. Plaintiff did argue in the lower courts that the Frankenmuth policy was excess to the Auto-Owners and usaa policies. The Court of Appeals rejected this argument (see Bosco, supra at 434, n 3), and Auto-Owners states, “there is something inherently suspect with ‘reasoning’ which yields the conclusion that an auto liability policy is excess over a multi-risk umbrella policy purchased for a small fraction of the cost of the auto policy.”
Auto-Owners maintains that its “retained limit” section contemplates that its policy is excess to any other underlying insurance, whether such underlying insurance is excess or primary. The policy also specifically states that if there is other insurance covering a loss also covered by the Auto-Owners policy, this policy is excess, unless such policy was purchased specifically to apply in excess of the Auto-Owners policy. Nothing in the Frankenmuth policy indicates that it was pmchased to be excess to the Auto-Owners policy. Thus, the Court of Appeals correctly rejected the notion that the Frankenmuth policy was excess to the Auto-Owners and usaa umbrella policies.
Now we will examine the policy language to determine if the Frankenmuth policy qualifies for proration with the Auto-Owners policy. The Auto-Owners policy further provides that it will prorate -with other similar insurance written also in excess of other underlying insurance. The Frankenmuth policy is not sufficiently similar to qualify for prorating under this clause. For example, there is nothing in the language of the Frankenmuth policy to suggest that Frankenmuth determined its rates after considering any underlying primary policies, unlike the Auto-Owners policy which specifically refers in its “retained limit” section to underlying insurance. Nothing suggests that it was written as excess over any underlying policy.
Plaintiff, in support of his contention that the Frankenmuth policy should prorate with the Auto-Owners policy, argues that if Auto-Owners intended its policy to be excess over other excess policies, it could have drafted it that way, and to do so it must contain lan guage that prevents prorating. However, the fact that a policy is issued as an umbrella policy at rates reflecting the reduced risk insured indicates the intent that the policy is excess over other excess policies. State Farm Fire & Casualty Co v LiMauro, 65 NY2d 369, 376; 492 NYS2d 534; 482 NE2d 13 (1985). Plaintiff misunderstands the basic nature of the Frankenmuth policy. It is a primary policy and has an excess clause that becomes operative in certain limited circumstances. This clause does not change the nature and function of the policy. Absent specific language in the Frankenmuth policy rendering it sufficiently similar to the Auto-Owners policy, it does not qualify for proration with it.
Now we will examine the language of the usaa policy as compared to the Frankenmuth policy. The USAA umbrella policy first provides that it is excess to any underlying insurance and then provides that, if an insurance policy is written specifically to cover as excess over the primary insurance limits, then the USAA umbrella policy will prorate the loss. This is slightly different than the Auto-Owners policy, which provides for proration with similar insurance, while the usaa policy only requires an excess policy be specifically written as excess over another primary policy.
The Frankenmuth policy excess provision was not written specifically to cover as excess over any primary policy. The USAA policy “other insurance provision” plainly states that the USAA policy will not pay contribution with any primary insurance policies, only those written as excess over primary insurance, i.e., other policies like the Auto-Owners policy, which is written specifically over underlying insurance. Usaa also notes that no evidence was presented that the Frankenmuth policy was purchased to be an umbrella policy; thus, it must be underlying insurance. The USAA umbrella policy is a “true” excess policy written as excess specifically over the usaa primary policy and all other underlying insurance, including the Frankenmuth policy. Finally, unlike the Frankenmuth policy, nothing in the USAA or the Auto-Owners umbrella policies suggests that either policy satisfies the requirements of MCL 500.3131; MSA 24.13131.
Plaintiff also asserts that the Frankenmuth policy should prorate with the USAA policy. Plaintiff argues that the USAA policy defines primary insurance as those policies listed in the declaration, i.e., the USAA primary policy. Therefore, no other policy (including the Frankenmuth policy) could be underlying. However, this analysis ignores the other insurance provision in the USAA umbrella policy, and by logical extension means that USAA, under its umbrella policy, would be required to pay before Continental because that policy is not in the declarations either. This not only contradicts Frankenmuth v Continental, but it violates common sense.
Plaintiffs analysis is inherently flawed because the Frankenmuth policy is not written as a “true” excess policy. Only the existence of the Continental policy triggers the Frankenmuth policy “coincidental” excess coverage clause. Its basic nature — a primary automo bile policy — does not change. The Emcasco court contrasted an umbrella policy, which remained as such in all circumstances except under very limited circumstances in which the policy provided primary coverage, with a primary policy with the excess clause, which provided primary coverage under almost all circumstances. Illinois Emcasco Ins Co v Continental Casualty Co, 139 Ill App 3d 130, 133; 487 NE2d 110 (1985). The basic purpose and nature of an insurance policy does not change, even if its coverage may change under certain limited circumstances.
Although the Court of Appeals, at the time of its decision, did not have the benefit of this Court’s decision in Frankenmuth, it misapplied St Paul Ins Co v American Home Assurance Co, supra. St Paul involved three primary policies, two with pro-rata other insurance clauses and one with an excess other insurance clause. This Court adopted the majority rule that gave effect to all three clauses; the two policies with pro-rata other insurance clauses were primary and the policy with the excess other insurance clause was secondary. Id. at 563. Just as in Si Paul, the excess other insurance clauses of the USAA primary policy and the Frankenmuth policy are only effective when other primary insurance exists, such as Continental. Otherwise, both policies would be primary, even if a nonowned vehicle was involved.
The parties and the Court of Appeals noted that the present case differed from St Paul because this case involves the priority of secondary insurers, not pri mary insurers. See Bosco, supra at 428. This is true only in the sense that umbrella carriers are involved here and were not in St Paul. However, that is of little significance. The excess other insurance clauses in the Frankenmuth policy and in the USAA primary policy are just like that in the excess other insurance policy involved in St Paul. Thus, these policies would be primary unless a nonowned vehicle was involved or no other primary insurance existed. No difference exists between the excess other insurance clauses contained in the USAA primary policy and the Frankenmuth policy in this matter and that in the secondary policy involved in St Paul. The entrance of two “true” excess umbrella policies into the equation does not change the result with respect to the first two tiers of coverage.
B. POLICY TYPE
As we held above, giving effect to the policy language is of greatest import in this analysis. However, examining the policy types involved within the insurance industry and the premiums charged for such policies is helpful in determining the contractual intent of the insurance policies as evidenced by their language. Auto-Owners and USAA argue that policies like the Frankenmuth policy, which insure a specific risk, differ in kind from umbrella policies. This difference was recognized by this Court in Frankenmuth v Continental, supra, which characterized umbrella insurance as “true” excess insurance and “coincidental” excess insurers, as those which, by the terms of their policies, also cover some loss arising from an insured event. Id. at 437. In Frankenmuth, this Court characterized this very policy as “coincidental” excess. Id. Auto-Owners contends that this distinction is not “merely semantic. Rather, it is rooted in the fundamental differences in the nature and scope of the risks which the policies intend to cover. Those differences are reflected both in the language of the policies . . . and in the premiums charged for the risk.”
This distinction also comports with the overwhelming weight of foreign authority. An Illinois appellate court recognized that general differences exist between umbrella policies and primary policies with excess insurance clauses. Emcasco, supra at 132-133. Umbrella policies provide unique coverage, often called catastrophe coverage. Id. at 133, citing 8A Appleman, Insurance Law & Practice, § 4906. Where a policy is, in most instances, a primary policy, its limits should be exhausted before an umbrella policy is required to contribute. Allstate Ins Co v American Hardware Mut Ins Co, 865 F2d 592, 595 (CA 4, 1989).
The Court of Appeals failed to appreciate this difference in kind between the automobile coverage provided by the Frankenmuth policy and the multirisk coverage provided by the umbrella policies. The Frankenmuth policy excess coverage availability in certain circumstances does not make it “true” excess coverage like an umbrella policy because the Frankenmuth policy excess coverage is triggered only upon the cir cumstances of the accident, while the umbrella policies are written to be excess over any underlying coverage. If there had been no other primary policy, the Frankenmuth policy would have been primary, regardless of the “coincidental” excess insurance clause, unlike the usaa and Auto-Owners umbrella policies.
This Court articulated the definition of a “true” excess policy in Frankenmuth v Continental: “ ‘True’ excess coverage occurs where a single insured has two policies covering the same loss, but one policy is written with the expectation that ‘the primary will conduct all of the investigation, negotiation and defense of claims until its limits are exhausted . . . .’’’Id. at 435, n 4. This Court held that additional insurers, like Frankenmuth, are not “true” excess insurers. Frankenmuth, supra at 436.
The Frankenmuth policy certainly does not appear to have been written with the expectation that a primary insurer would investigate, negotiate, and defend claims. In fact, absent the circumstances of this case, the involvement of a nonowned vehicle and the existence of the Continental policy, this policy would be primary. That it might be excess in some circumstances does not change the nature of the policy. This is the very reason for distinguishing between “coincidental” excess and “true” excess. This Court recognized the significance of that distinction in Frankenmuth.
The defining character of a “coincidental excess” policy is that liability attaches immediately upon the occurrence of the insured event. See Frankenmuth v Continental, supra. The Frankenmuth policy was written chiefly as a primary policy to cover residual liability losses arising out of the use of a motor vehicle. The policy states:
To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of: A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by any person; B. injury to or destruction of property, including loss or use thereof, hereinafter called “property damage”; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile. These agreements provide the Residual Liability Insurance required by Section 3131 of Chapter 31 of the Michigan Insurance Code.
As soon as the insured experiences the bodily injury or property damage described in the policy language, the carrier’s liability for those losses under the policy attaches. On the other hand, under an umbrella policy, liability will never automatically attach upon the occurrence of an insured event. Rather, liability under a true excess/umbrella policy only attaches once the limits of all underlying insurance have been exhausted. That is why neither the Auto-Owners policy nor the USAA umbrella policy contains any language similar to the language cited above. Instead, both contain language stating that coverage applies to losses in excess of the “retained limit” or the “limit of the applicable primary insurance.”
The New York Court of Appeals explained the effect of the “other insurance” clause in a policy similar to the Frankenmuth policy:
The juxtaposition in that [other insurance] clause of provision for pro rata contribution with all insurance except as to a nonowned automobile strongly suggests that what Aetna sought to achieve was an excess position with respect to other primary insurance covering the nonowned vehicle, rather than an intention to place itself on an equal or better footing with all other insurance excess to the primary insurance. [LiMauro, supra at 376.]
On the other hand, 8A Appleman, Insurance Law & Practice, § 4906, p 348, provides the following discussion of the nature of a true excess umbrella policy:
There is, however, a unique form of excess contract which always remains excess over and above all other applicable forms of contract, except as to the specific risks upon which it may elect to carry the primary burden. That is the umbrella or catastrophe policy. This is a needed form of coverage which picks up, above the limits of all other contracts, such as automobile and homeowners coverages, to give the security and peace of mind so necessary today where jury verdicts, or court awards, may be very substantial, to discharge the unexpected, but potentially bankrupting, judgment. The premium is comparatively small for the size of the risk, so that the company cannot be expected to prorate with other excess coverages; and public policy should not demand that this be done.
Thus, the effect of the Frankenmuth excess clause is to merely allocate liability among the primary insurers, not to magically remove the primary nature of the policy when a nonowned or substitute vehicle is involved.
C. PREMIUMS
Both Auto-Owners and USAA argue that the large disparity in premiums demonstrates that the risk assumed by a “true” excess carrier is more remote from the insured event than that assumed by the primary carrier, thus reflecting the level of risk that each insurer intended to assume. The Court of Appeals addressed the premium issue in passing, also discussing the separate endorsement problem.
First, the Court of Appeals noted that even if a greater premium was paid for the Frankenmuth policy than for either umbrella policy, that price would presumably take into account both aspects of the Frankenmuth policy — the primary and the excess coverage. Bosco, supra at 433. This is essentially the basis of Auto-Owners’ and usaa’s position — the premium for the Frankenmuth policy is significantly higher for the entire risk assumed by each of the three insurers, further illustrating the difference between a primary policy with a nonowned vehicle excess clause and an umbrella policy. However, the Court of Appeals, after stating the costs of coverage should take into account the entire policy, stated that neither Auto-Owners nor USAA demonstrated that the “premium attributable to the excess insurance portion of the Frankenmuth policy is disproportionately higher than that paid for the umbrella policies.” Id. at 433. The Court of Appeals analysis did not fully address the substance of Auto-Owners’ and USAA’s arguments regarding the purpose of examining the disparity in premiums.
An examination of the premiums reflects the intent that an umbrella policy serves a different function. Emcasco, supra at 133. The Emcasco court also noted that “ ‘[t]he premium is comparatively small, for the size of the risk, so that the company cannot be expected to prorate with other excess coverages; and public policy should not demand that this be done.’ ” Emcasco, supra at 133, quoting 8A Appleman, supra, § 4906, p 348.
The USAA primary policy costs $3.91 per $1,000 of coverage. The annual premium was $1,746.82, of which $390.82 or twenty-two percent, was for liability coverage. The Frankenmuth policy had an annual premium of $2,334. The Frankenmuth policy declarations do not indicate the premium charged for each separate coverage, but if the usaa automobile policy is representative, then twenty-two percent is about $500 or $2 per $1,000 of coverage. The umbrella policies issued by USAA ($123.17 annual premium) and Auto-Owners ($90 annual premium) cost twelve cents and nine cents per $1,000 of coverage, respectively. This disparity, argue Auto-Owners and USAA, is even more significant than it appears because the coverage provided by the umbrella policies is not limited to automobile-related risks. The Emcasco court simply compared the total premiums for each policy to reveal the disparity and held it indicative of the reduced risk assumed under the umbrella policy. Id. at 133. Whatever the method employed, the disparity in premiums is obvious and demonstrates that the umbrell i policies were intended to cover a more remote level of risk. While not dispositive, the disparity in premiums does evidence the risk each insurer intended to assume.
D. THE REASONABLE EXPECTATIONS OF THE CONTRACTING PARTIES
While the language of the policies is critical to tne priority analysis, as our entire analysis indicates, it should be construed in light of all the circumstances of each contracting party to determine the “intention of each contract within the design of a consistent overall insuring scheme.” Allstate Ins Co v Employers Liability Assurance Corp, 445 F2d 1278, 1283 (CA 5, 1971). Moreover, in attempting to ascertain the parties’ contractual intent, a court must consider the language of the policy, the character of the contract, the contract’s object and purpose, and the surrounding facts and circumstances at the time of execution. US Fire Ins Co v Maryland Casualty Co, 52 Md App 269, 275; 447 A2d 896 (1982).
Auto-Owners argues that the plaintiff erroneously invokes the principle that the policy language at issue should be strictly construed against the insurer and should comport with the reasonable expectations of the insured. While such construction devices are appropriate when coverage is at issue, they have no application where the question is not the existence or extent of coverage, but priority of coverage. Construing the policies strictly against the insurers is of little use in resolving priority issues because, as Auto-Owners asserts, “construing all of the policies against all of the insurers is not a fruitful approach to a solution.” Plaintiff provides no rationale for construing the umbrella policy provisions against USAA and Auto-Owners and construing the Frankenmuth policy provisions in favor of Frankenmuth. Such a rule makes little sense in these circumstances and is virtually impossible to apply.
Instead, the insurer’s reasonable expectations should be accommodated in a priority dispute, as this Court has recognized. Frankenmuth held that requiring an excess insurer to participate pro rata on notice that the claim might exceed the primary insurer’s limits effectively forces the excess insurer to be a coinsurer, despite the policy language, and such a result is contrary to the excess insurer’s reasonable expectations. Frankenmuth, supra at 437. Additionally, this Court’s holding in St Paul was based in part on the insurer’s intent that the policy afforded only secondary coverage when the same loss was covered by other insurance. St Paul, supra at 568.
The nature of the Frankenmuth policy and its language contradict the conclusion that Frankenmuth’s reasonable expectation was that its policy was written specifically in excess of any primary policy. It is a primary policy with an excess clause triggered under certain circumstances. While true that it is excess insurance in this instance, it “necessarily contemplated a different and probably a greater risk than that covered by the [umbrella] policies].” USAA v Empire Fire & Marine Ins Co, 134 Ariz 64, 66; 653 P2d 712 (1982). This policy would have provided primary coverage if the Continental policy did not or if an owned vehicle was involved in the accident. The overwhelming weight of authority supporting our decision to characterize the Frankenmuth policy as coincidental excess belies the conclusion that Frankenmuth reasonably expected its policy to be characterized as true excess.
Both the Auto-Owners and USAA policies were written to be excess to any underlying insurance under all circumstances; the only policy that could be excess to either is one written specifically to be excess, which the Frankenmuth policy was not. Moreover, the Frankenmuth policy was not written to be prorated with other “true” excess insurers. Both the Auto-Owners and USAA umbrella policies contain language indicating proration with similar insurance or other insurance written to be excess of another primary policy, while the Frankenmuth policy does not.
On the basis of a reading of the language of all the policies, the insurers’ reasonable expectations require the conclusion that three tiers of coverage are appropriate. This is consistent with decisions of this Court and other courts that policies should be read as a whole and the negotiated intent of the parties should not be nullified. See St Paul, supra at 577, and Emcasco, supra at 133-134. Under the trial court’s analysis, each provision relating to excess insurance, other insurance, and proration with other policies is given meaning. The Court of Appeals analysis failed to give effect to all policy provisions, and does not give the parties what they bargained for; in other words, it is inconsistent with the parties’ reasonable expectations. Moreover, three tiers of priority are harmonious with the nature and purpose of the policies, the risks assumed by the insurers, and the reasonable expectations of the insurers in the light of all the surrounding circumstances.
E. PUBLIC POLICY
Lastly, reversal of this case would not chill settlement, as plaintiff argues, because by settling with Frankenmuth for $55,000, plaintiff “knowingly bargained for this litigation concerning the priority of the policies,” as Auto-Owners asserts. Plaintiffs settlement with Frankenmuth was a calculated risk, and he had $550,000, regardless of the verdict. If the verdict was more, and plaintiff prevailed on the priority issue, then he would also recover an additional $195,000. However, if plaintiff did not prevail on the priority issue, then, by the terms of the covenant not to enforce judgment, that sum would not be available to plaintiff. Plaintiff, like the insurance companies, got what he bargained for.
rv
We agree with the Court of Appeals and the trial court that an insurer’s liability should be prorated on the basis of the ratio of the insurer’s limits of liability to the total limits of available coverage on the loss within its tier of priority. See St Paul, supra at 565, n 14.
v
We conclude that the distinction between “trae” excess insurance coverage and excess “other insurance” based on the difference in policy types within the insurance industry, the premiums charged for and risks assumed by the policies, the language of the policies, and the reasonable expectations of all the contracting parties requires an excess “other insurance” policy to be exhausted before a “true” excess insurance policy is required to contribute to a loss. Thus, we reverse the decision of the Court of Appeals and reinstate the judgment of the trial court.
Mallett, C.J., and Cavanagh, Boyle, Weaver, and Kelly, JJ., concurred with Brickley, J.
Taylor, J., took no part in the decision of this case.
USAA Casually Company, Inc., also argued that the Court of Appeals incorrectly held that it waived its priority claim with regard to its $100,000 primary automobile policy. We need not address this issue because we reverse the decision of the Court of Appeals on the priority issue and reinstate the trial court’s decision, which places the usaa primary policy in the second tier of coverage. This is the result that usaa has advocated from the beginning of this dispute.
This section provides, in pertinent part: “Residual liability insurance shall cover bodily injury and property damage which occurs within the United States, its territories and possessions, or in Canada. This insurance shall afford coverage equivalent to that required as evidence of automobile liability insurance under the financial responsibility laws of the place in which the injury or damage occurs. In this state this insurance shall afford coverage for automobile liability retained by section 3135.”
There might be circumstances in which no other primary insurance existed. This should not be the case under the Michigan no-fault insurance scheme; however, it is possible. Additionally, without any other primary insurance, the usaa policy could be primary.
The majority of foreign authority supports the position of the trial court, usaa, and Auto-Owners. This was acknowledged by the Court of Appeals, which recognized the “deference given by other jurisdictions to the approach taken by the trial court and advocated by usaa and Auto-Owners.” Bosco, supra at 431. This authority was exhaustively noted in Liberty Mut Ins Co v Harbor Ins Co, 603 A2d 300, 302 (RI, 1992). See also anno: Automobile insurance: Umbrella or catastrophe policy automobile liability coverage as affected by primary policy “other insurance” clause, 67 ALR4th 14.
While the distinction is a function of the policy language, coincidental excess insurance clauses are virtually universal, particularly in primary automobile policies.
Plaintiff asserted that the Frankenmuth policy was the least expensive of all the policies because plaintiff segregated the nonowned liability coverage endorsement ($30) from the rest of the policy ($2,334 total). Auto-Owners asserts that no rational justification exists for comparing the premium charged for a portion of the risk assumed by Frankenmuth with the premium charged for the entirety of the risks assumed by Auto-Owners and usaa. This $30 additional charge appears to be for the nonowned vehicle endorsement. Liability for owned vehicles is still included within the total, separate from the additional endorsement. In other words, the nonowned vehicle coverage would not merely cost $30 in the absence of the owned vehicle coverage premium charge of $2,304. Thus, using only the $30 is not an accurate comparison to the USAA $390.82 premium for total liability (not the total premium) or to the premiums charged for the umbrella policies, which include total risk. Whether using the twenty-two percent method set forth by usaa and Auto-Owners is the proper method of determining the cost of coverage is debatable. However, of the two methods presented by the parties for making this determination, usaa’s and Auto-Owners’ seem more logical and fair. Moreover, cost of coverage, while relevant to this analysis, is not determinative.
We want to emphasize that this rule of law only applies to priority disputes. It has no place in a coverage dispute, where the rule steadfastly remains that insurance policies will be construed against the insurer and the reasonable expectations of the insured govern. Thus, an examination of the reasonable expectations of the insurer is prudent only in this limited and narrow context.
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Riley, J.
In the matter now before us, this Court is asked to clarify the evidentiary threshold a discharged employee must satisfy in order to create a genuine issue of material fact when an employer asserts that its decision to discharge an employee was precipitated by business conditions. We are also asked to decide whether a discharged employee may challenge an employer’s decision to reduce its work force charging discrimination, even when the reduction in work force (rif) decision has been deemed bona fide.
We hold that even when an employer’s rif decision is concluded to be bona fide, an employee may still establish a genuine issue of material fact that the employer’s justification for discharging him was not the true reason for its decision to discharge. We also hold that in order for a discharged employee to establish a genuine issue of material fact when an employer contends that its decision to discharge the employee was based on a work-force reduction, the employee may not merely rely on unsubstantiated allegations or denials in the pleadings. Rather, he must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute that the employer’s articulated reason was merely a pretext to discrimination.
In the instant case, we conclude that defendant’s policy statement could have reasonably created a legitimate expectation of just-cause employment. We also conclude that defendant did have just cause to reduce its work force as a matter of law, but not with respect to this plaintiff. Rather, we hold that plaintiff did sufficiently establish a genuine issue of material fact regarding whether age was a determining factor in defendant’s decision to discharge her. We also conclude that plaintiff presented evidence sufficient to establish a genuine issue of material fact regarding whether defendant considered her sex in its decision to discharge her.
We affirm the decision of the Court of Appeals finding that plaintiff could have reasonably had a legitimate expectation of just-cause employment. We also affirm its ruling that plaintiff raised a genuine issue of fact with respect to whether defendant discriminated against her on the basis of her age, as well as its decision concluding that plaintiff raised a genuine issue of material fact regarding her claim of sex discrimination.
FACTS AND PROCEEDINGS
On January 29, 1973, plaintiff Nancy Lytle was hired by defendant Howmet Turbine Components Corporation as a general clerk in its human resources department, which at that time served all divisions making up the Whitehall operation. Plaintiff received a manual containing a statement of defendant’s policies and procedures regarding employment. In the section containing defendant’s policy regarding the relationship it sought with each of its employees, defendant expressed that a probationary period existed that afforded it time to decide whether it was in its interest as well as the employee’s interest to continue the relationship following the probationary period. In that same section, the manual also stated that “[n]o employee will be terminated without proper cause or reason and not until management has made a careful review of all facts.” The last two paragraphs of the manual stated:
The contents of this booklet are not intended to establish, and should not be interpreted to constitute any contract between the Misco Whitehall Division, Product Support Operations, Reactive Metal Operations or the Technical Center of Howmet Turbine Components Corporation and any employee, or group of employees.
For over twenty years we have concentrated on the production of the finest investment castings, with the development of policies and principles which aim at the attainment of pride in every day’s work for every employee, plus the satisfaction of finding opportunities for individual growth and security. [Emphasis added.]
In 1981, defendant placed a disclaimer in its policy manual: “[T]he Company reserves the right to terminate employees without assigning cause; therefore, the employee serves at the will of the employer.” Direct notification of the disclaimer was provided only to new employees, but plaintiff was involved in placing the disclaimer in new employee manuals.
At the time of plaintiffs hiring, John Ozar was the human resources director, serving as her immediate supervisor. Under Ozar’s supervision, plaintiff received exemplary performance evaluations and was rewarded with a succession of promotions. In 1979, plaintiff spoke with Ozar about resigning and seeking employment elsewhere. Ozar assured plaintiff that her employment with defendant was secure and that she could expect advancement. Soon after that conversation, plaintiff was promoted to employment manager of the entire human resources department. Additionally, about the same time, Ozar hired Walter Boczkaja. Boczkaja became plaintiffs subordinate trainee. For approximately two years, Boczkaja trained under plaintiff, receiving promotions to various positions within the personnel department, and continued to be one of plaintiffs subordinates until 1989.
During the 1984-85 fiscal year, Ozar retired and was replaced by William Roof. In March 1987, Roof determined a need to decentralize the human resources department. He planned for each of the Whitehall divisions to have its own human resources representative. Roof hired defendant Michael Malady to head the Whitehall Machined Products Division and to serve as plaintiffs supervisor. Plaintiff was reassigned to serve as human resources representative for defendant’s Ti-Ingot Division.
A personality conflict between Malady and plaintiff soon developed. In June 1987, Malady requested all female employees under his supervision to wear dresses to a company picnic. Plaintiff wore slacks. Shortly thereafter, in September 1987, Malady submitted an unfavorable evaluation of plaintiffs job performance.
In January 1989, on Malady’s recommendation and with Roof’s approval, plaintiff’s job title was changed from human resources representative to human resources specialist. Plaintiff’s duties, as well as her salary, remained the same. Malady suggests that the change was necessary to reduce the number of direct reports he had to address, in addition to “centraliz[ing] the total employment function under one person instead of having it split with two different people doing part of it.” He also asserts that he had “some performance concerns . . . with [plaintiff’s] supervisory abilities],” as reflected in his latest performance evaluation.
Plaintiff held her new position from January 1989, until her discharge on November 1, 1991.
Plaintiff contends defendant’s policy manual created an expectation that her employment would not be terminated unless there was sufficient cause to do so. Also, she claims that she relied on verbal assurances by Ozar that her employment with defendant was secure.
Defendant argues that plaintiff was terminated pursuant to a company-wide reduction in work force. Defendant asserts that as a result of declines in military spending and a downturn in the commercial airline industry between 1988 and 1991, it was forced to institute a series of reductions in its work force. Defendant suggests that it initially sought to cut costs in the 1992 budget without terminating any employees. In an August 21, 1991, intracompany memorandum to all the personnel support departments, Dr. Thomas Wright, vice president in charge of the Whitehall operations, directed all department supervisors to cut their respective 1992 budgets by fifteen percent.
At the same time reductions were being sought, defendant was embarking on a plan that would use work cells as the primary facility structure, where employees would be working in teams instead of in the traditional hierarchical order. Notwithstanding the fact that he had to eliminate fifteen percent of his projected 1992 budget, Roof was told by the Operhall management to somehow compile a list of employees from the human resources department to head an independent department. From that list someone was to be selected to oversee the development of the work-cell plan.
After reviewing the qualifications of those listed, Operhall management identified Malady and Boczkaja as the two most promising candidates. Malady was not available and Boczkaja, who was interviewed by Operhall management, later decided to stay on in his current position. Then Roof went to the private sector and found Andrea Achterhoff. She was thirty-one years old and had previous experience as a production supervisor, personnel manager, and human resources manager. Plaintiff never was interviewed for the position.
By November 1, 1991, in an effort to comply with Wright’s mandate, Roof had eliminated approximately $300,000. Roof needed to cut $439,950 in costs in order to meet Wright’s directive of a fifteen-percent reduction in expenditures for the human resources department’s 1992 operating budget. Roof eliminated four positions in the human resources department, which included two plant medical staff, the employee assistance program assistant, and plaintiff’s position as human resources specialist. Roof contended that in terminating these four individuals, he focused on “functions” rather than “individuals or relative qualifications.” He suggested that the decision was based on who was absolutely critical and what they could get by without. Roof claimed that he terminated plaintiff because the primary function of her position involved hourly employees, where a substantial portion of the reduction in work force had already occurred, and the fact that little, if any, hiring was forecasted in the near future.
The same day plaintiff was discharged, defendant hired Jeff Billingsley to work in the training program for the work-cell project. As far as plaintiff understood, Billingsley “worked for the corporate office” and was merely assigned to take an office where plaintiff previously worked so that he would have a place to work. Moreover, plaintiff admitted that she had no idea how Whitehall’s operation budget and personnel were allocated among all the Pechiney subsidiaries.
On November 22, 1991, Boczkaja completed a final performance evaluation on plaintiff, which Malady accepted, indicating that she would be rehired in the event a nonsupervisory, administrative position became available. When plaintiff was finally discharged, her duties were assigned to other persons within the human resources department.
On January 7, 1992, plaintiff filed a complaint in the Muskegon Circuit Court against defendant How-met, alleging: (I) breach of a contract providing for termination for just cause only, (II) age discrimination, and (III) sex discrimination.
Following some discovery, defendants Howmet and Malady moved separately for summary disposition pursuant to MCR 2.116(C)(10), which the circuit court granted on all counts.
The Court of Appeals reversed, and this Court granted defendant’s application for leave to appeal.
A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim or defense. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992); General Motors Corp v Detroit, 372 Mich 234, 239-240; 126 NW2d 108 (1964). The affidavits, pleadings, depositions, admissions, and other material supporting and opposing the motion must be considered, so that it may be decided whether “ ‘it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.’ ” Stevens v McLouth Steel Products Corp, 433 Mich 365, 370; 446 NW2d 95 (1989), quoting Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). If the court concludes that it is impossible for the record to be developed any further, summary disposition is appropriate. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993).
I. JUST-CAUSE EMPLOYMENT
A
Employment contracts for an “indefinite” duration are presumed to be terminable at the will of either party, unless they contain distinguishing attributes or consideration in addition to the services to be rendered. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). This presumption is founded on the fact that the parties technically possess complete freedom to contract before entering into the agreement. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 600; 292 NW2d 880 (1980). It is not considered substantive in nature, but, rather, was judicially created to serve as a rule of construction in deducing the parties’ intentions when no other indications exist:
[T]he presumption provides assurance that oral contracts for an indefinite term, which fall outside the statute of frauds, will be recognized only where circumstances suggest both parties intended to be bound. [Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 636; 473 NW2d 268 (1991).]
The presumption of employment at will may be overcome by proof of “a contractual provision for a definite term of employment or a provision forbidding discharge absent just cause.” Rood v General Dynamics Corp, 444 Mich 107, 117; 507 NW2d 591 (1993), citing Rowe, supra at 636-637. A contract for just-cause employment may be established in three ways. First, it may be formed by an “explicit” promise. Rowe, supra at 668 (Boyle, J., concurring), citing Perritt, Employee Dismissal Law & Practice (2d ed), § 4.1, p 173. Second, it may be “manifested by the words or other conduct” of the parties assenting to the agreement. Rood, supra at 117, n 17. Third, it may be “implied by law” because the employer’s statement regarding its “policies and procedures instillfed] [a] ‘legitimate expectation!]’ of job security in [the] employees.” Rood, supra at 117-118, citing Toussaint, supra at 615.
Under the third, when a policy manual is at issue, the court decides whether those sections that address employee discharge “are reasonably capable of being interpreted as promises of just-cause employment,” that is, whether an ordinary individual, marked by reason and sensibility, viewing the objective manifestations of the parties’ intent, could conclude that discharge would be only for just cause. Rood, supra.
A just-cause obligation will not automatically arise where the manual lists conduct that constitutes a just basis for termination. In Reid v Sears, Roebuck & Co, 790 F2d 453, 460 (CA 6, 1986), quoting in part Toussaint, supra at 617, the United States Court of Appeals for the Sixth Circuit remarked:
The fact that certain acts were identified as conduct that might lead to discharge did not indicate that these acts were the exclusive permissible grounds for discharge. Moreover, the Sears handbook had no language similar to that relied upon in Toussaint: “to treat employees leaving Blue Cross in a fair and consistent manner and to release employees for just cause only.”
Any verbal assurances or statements of policy and procedure regarding job security must be clear and unequivocal to overcome the presumption of employment at will. Rowe, supra at 640-641, quoting Bullock v Automobile Club of Michigan, 432 Mich 472, 517; 444 NW2d 114 (1989), and Farnsworth, Contracts, § 7.10, p 492. To reach this threshold, “the statements must clearly permit a construction which supports the asserted meaning.” Rowe, supra at 641.
In evaluating verbal expressions, the court considers “all the relevant circumstances surrounding the transaction, including all writings, oral statements, and other conduct by which the parties manifested their intent.” Id., citing Farnsworth, Contracts, § 7.10, p 492.
If the employer has manifested a just-cause policy, the employer may unilaterally change it to one of employment at will, regardless of whether such right was reserved by the employer from the outset:
The very definition of “policy” negates a legitimate expectation of permanence ... a “policy” is commonly understood to be a flexible framework for operational guidance, not a perpetually binding contractual obligation. In the modem economic climate, the operating policies of a business enterprise must be adaptable and responsive to change. [In re Certified Question (Bankey v Storer Broadcasting Co), 432 Mich 438, 455-456; 443 NW2d 112 (1989).]
If the employer so chooses, then reasonable notice must be given to all those affected. “Reasonable notification is not necessarily actual notification”; rather, the method instituted must be calculated in its objective of providing notice to those affected and not invoke the appearance of bad faith in its assurance of actually giving notice. In re Certified Question, supra at 457 (“for the revocation of a discharge-for-cause policy to become legally effective, reasonable notice of the change must be uniformly given to affected employees”).
B
Plaintiff makes two arguments. First, plaintiff argues that certain representations were made by management regarding job security. She claims that when she was called by another company about employment, Archer and Joseph Sheehan, the persons who originally hired her and Ozar, plaintiffs initial supervisor, told her that “they did not want [her] to leave .... You do a good job. You’re very secure here. We’d like you to stay for long-term employment . . . .” She adds that individually, Ozar told her that “he would really like [her] to stay. [She] had a very secure job at Howmet. [She] had a lot of potential,” she would be missed, and he and Archer and Sheehan “hoped” she would decide to stay.
We conclude that these claimed assurances plaintiff received from Archer, Sheehan, and Ozar were not sufficiently “ ‘clear and unequivocal to overcome the presumption of employment at will,’ ” Rood, supra at 119, quoting Rowe, supra at 645, but, rather, represented that they “hoped” the employment relationship would “have a significant duration.” Rowe, supra at 640, quoting Carpenter v American Excelsior Co, 650 F Supp 933, 936, n 6 (ED Mich, 1987) (“any orally grounded contractual obligation for permanent employment ‘must be based on more than an expression of an optimistic hope of a long relationship’ ”) (emphasis previously supplied).
Second, plaintiff contends that she was told that the disclaimer she helped affix in newly hired employees’ policy manuals in 1981, applied only to new employees and that she “reasonably relied upon the written . . . statements and representations made by defendant^” in its policy manual. When plaintiff was originally hired, the policy manual she received expressed that “[n]o employee will be terminated without proper cause or reason.”
This language, standing alone, instilled in plaintiff a legitimate expectation of just-cause employment. However, the penultimate paragraph of the manual stated:
The contents of this booklet are not intended to establish, and should not be interpreted to constitute any contract between the Misco Whitehall Division, Product Support Operations, Reactive Metal Operations or the Technical Center of Howmet Turbine Components Corporation and any employee, or group of employees.
We conclude that a question of fact exists regarding whether defendant’s pre-1981 manual permitted plaintiff to have a legitimate expectation of just-cause employment. See Rood, supra at 140-141. Defendant failed to clearly manifest an intent because of the contradictory language within the manual. The average employee may not have interpreted the penultimate paragraph to contradict the language of the just-cause provision. Furthermore, the penultimate paragraph specifically lists several divisions within defendant’s Whitehall operation. Plaintiff’s division, human resources, was not listed. See n 2. This alone could allow plaintiff to reasonably believe that the penultimate paragraph did not apply to her.
We conclude that the contradictory provisions are open to differing, but reasonable, interpretations. Thus, a question of fact exists regarding whether plaintiff had a legitimate expectation of just-cause employment.
Despite the contradictory provisions, defendant asserts that plaintiff had actual knowledge of the disclaimer she helped affix in newly hired employees’ manuals in 1981, extinguishing any expectations she may have had regarding just-cause employment. We agree she had knowledge of the disclaimer. She worked in defendant’s human resource department and helped place the disclaimer in handbooks to be given to new employees. Notwithstanding, it is undisputed that plaintiff did not receive a new handbook, nor was she told that the disclaimer applied to her. At the September 14, 1992, summary proceeding, the following exchange took place between the trial court and defense counsel:
The Court: Did [defendant] give any notice to [plaintiff]?
[Defense Counsel]: There was no direct notice to her in terms of a memorandum, but she was involved in the company putting the sticker in the book. . . .
The Court: Well, she didn’t put it in her book, did she?
[Defense Counsel]: Well, that’s trae.
Accordingly, because defendant could have easily provided notice to all those it intended to be affected by the disclaimer, we conclude that the method of notification instituted was not reasonably calculated to uniformly assure awareness of the change for all defendant’s affected employees, as well as hold that plaintiff’s legitimate expectation of just-cause employment was left undisturbed.
H. REDUCTION IN WORK FORCE
A
A reduction in a work force for economic reasons constitutes termination for “just cause.” McCart v J Walter Thompson USA, Inc, 437 Mich 109, 114; 469 NW2d 284 (1991), citing Friske v Jasinski Builders, Inc, 156 Mich App 468, 472; 402 NW2d 42 (1986). In Friske, supra at 472, the Court of Appeals held:
[Discharge for economic reasons, as determined by and within the complete discretion of the board of directors of defendant corporation, constitutes termination for sufficient cause. To hold otherwise would impose an unworkable economic burden upon employers to stay in business to the point of bankruptcy in order to satisfy employment contracts and related agreements terminable only for good or sufficient cause.
Layoffs that axe conducted must be bona fide, that is, business conditions must have necessitated the reduction in work force. McCart, supra at 115. In McCart, the defendant sought summary disposition, contending that the plaintiff was discharged as part of a work-force reduction. Despite all the plaintiffs allegations regarding why he was wrongfully discharged, he “conceded” that the “defendant was instituting layoffs for economic reasons . . . .” Id. This Court concluded that “[i]n the absence of any sufficient response from [the] plaintiff, [the] defendant’s proofs . . . were adequate to support summary disposition on the ground that [the] plaintiff’s termination was for bona fide economic reasons.” Id. at 116.
Therefore, where a defendant asserts work-force reduction in defense of its decision to discharge an employee, that employee, to establish a genuine issue of material fact that the employer’s decision was not bona fide, may not merely rely on unsubstantiated allegations or denials in the pleadings, but, rather, must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute.
Having set forth the controlling principles, we now turn to plaintiff’s contention that defendant lacked just-cause to discharge her.
B
Plaintiff contests the genuineness of defendant’s economic motivation in discharging her. Plaintiff claims that her review of defendant’s corporate salary reports evidences that defendant had actually hired more people from 1988 to 1990. However, this docu mentation is not part of the record. In spite of plaintiff’s failure to present this evidence, it would be of no consequence because the evidence related to the period from 1988 through December 1990. Plaintiff was discharged on November 1, 1991. Defendant’s decision to institute a work-force reduction was based on a forecasted economic decline in 1992. See n 5 and accompanying text.
In addition, plaintiff herself admits that defendant had been conducting an rif from January 1988, until the time of her discharge, “as a method of dealing with [the] economic downturn . . . .” Notwithstanding, plaintiff submits that a Pechiney report called “Direct Magazine” published in May 1991, claimed sales figures for defendant corporation in the amount of $973 million, sales backlogs in excess of $1 billion, anticipated sales for 1991 of over $1 billion, as well as projected overall continued upward growth. We conclude, however, that defendant evidenced that Pechiney is a huge French-owned conglomerate. See n 1. Defendant could have overall profitability, yet require reductions in operating and capital expenditures in its subsidiaries. Thus, our attention is directed at the economic disposition of defendant’s Whitehall operation.
Plaintiff also asserts that her testimony in a case brought against defendant involving another employee supports her contention. See n 24. But, her allegations are based solely on “information and belief” or inadmissible evidence, and, as such, even though we are required to view plaintiff’s case in its most favorable light, we are given nothing to view that would permit us to conclude that the record before us could be developed at trial to the extent that it would leave open an issue on which reason able minds could differ. Durant v Stahlin, 375 Mich 628, 639; 135 NW2d 392 (1965); Rizzo, supra at 371.
Therefore, because we choose not to second-guess employers’ decisions regarding day-to-day management operations, and because plaintiff failed to present evidence demonstrating the existence of bad faith on behalf of defendant in its aim to reduce costs, we hold that defendant’s decision to conduct a reduction in work force was proper as a matter of law.
c
We conclude that plaintiff’s relief, if any, rests in the Civil Rights Act. See MCL 37.2202; MSA 3.548(202).
In this instance, the Court of Appeals provided relief to plaintiff by concluding that defendant’s decision to reduce its work force was a mere pretext to discrimination. It stated:
Bona fide economic reasons are just cause for discharge. McCart [supra at 114]. However, an employer may not use economic necessity as a pretext for unlawful discrimination. Id. at 115. When the parties dispute the genuineness of the economic necessity, the question of just cause is one for the trier of fact. Ewers v Stroh Brewery Co, 178 Mich App 371, 378-379; 443 NW2d 504 (1989). Here, plaintiff has presented documentary evidence that Howmet was not in an economic downturn during this period and that in reality its sales and net income were increasing and that it continued to hire personnel while it was discharging current employees. Giving the benefit of every reasonable doubt to plaintiff, we find that she has raised a genuine issue of material fact concerning whether Howmet’s proffered economic justification was a mere pretext for discrimination, and this issue is best left to the jury to resolve. McCart, supra at 115-116; Ewers, supra at 373-374. [209 Mich App 179, 198-199; 530 NW2d 135 (1995).]
In so holding, the Court of Appeals erred by confusing just-cause analysis with discrimination analysis under the Civil Rights Act. It held that plaintiffs discharge constituted a breach of contract. Id. at 199. However, defendant presented evidence of the economic necessity to conduct an rif, e.g., a decline in military and commercial aircraft, as well as a more competitive market. See n 5 and accompanying text, and n 23. Therefore, we are persuaded that the Court of Appeals should have addressed plaintiffs claim in light of the Civil Rights Act, so that it could determine whether defendant relied on prohibited criteria in making its decision to discharge plaintiff.
Accordingly, we now turn to plaintiffs contention that she presented evidence establishing that, notwithstanding defendant’s claim of economic necessity, its actual motive for discharging her was to discriminate against her on the basis of her age and sex.
m. DISCRIMINATION
A. CIVIL RIGHTS ACT
The Civil Rights Act is codified in MCL 37.2202; MSA 3.548(202). In particular, subsection 202(1) provides, in pertinent part:
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
Ever since our decision in Matras v Amoco Oil Co, 424 Mich 675, 683; 385 NW2d 586 (1986), we have looked to McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), and its progeny for guidance when addressing the Civil Rights Act.
In McDonnell Douglas, the Supreme Court promulgated a presumption-based approach that encompassed special rules governing the order of proof when a plaintiff attempts to establish his claim by circumstantial evidence. The McDonnell Douglas approach has been applied to other matters involving employee discharge as well as other types of disparate treatment cases, notwithstanding that McDonnell Douglas arose under the context of title VII of the Civil Rights Act, 42 USC 2000 et seq. Hence, this Court’s analysis in Matras, supra, suggests that McDonnell Douglas applies to plaintiff’s claims of discrimination based on sex as well as age.
The approach was not meant to be inflexible, but, rather, was developed to serve as “a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.’’ See Adama v Doehler-Jarvis, 115 Mich App 82, 95; 320 NW2d 298 (1982), citing Loeb v Textron, Inc, 600 F2d 1003, 1016-1017 (CA 1, 1979) (emphasis added). The underlying purpose in viewing “the evidence in light of common experience” was set forth by the Supreme Court in Furnco Construction Corp v Waters, 438 US 567, 577; 98 S Ct 2943; 57 L Ed 2d 957 (1978):
[W]e are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.
Under the McDonnell Douglas approach, the burden of persuasion always rests with the plaintiff to prove that the prohibited discriminatory treatment by the employer was a determining factor used in its decision to discharge. St Mary’s Honor Center v Hicks, 509 US 502, 507; 113 S Ct 2742; 125 L Ed 2d 407 (1993), citing Texas Dep’t of Community Affairs v Burdine, 450 US 248, 253; 101 S Ct 1089; 67 L Ed 2d 207 (1981). Thus, the plaintiff must prove that the employer’s explanation was a pretext to discrimination. The plaintiff can rely on the same evidence to prove both pretext and discrimination as long as the evidence would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. Udo v Tomes, 54 F3d 9, 13 (CA 1, 1995).
The approach involves three stages. In the first stage, the plaintiff must establish a prima facie case in order to create the rebuttable presumption of discrimination. The prima facie showing itself involves four parts. The plaintiff must show that (1) he was a member of a protected class, (2) he suffered an adverse employment action, (3) he was qualified for the position, and (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct, suggesting that discrimination was a determining factor in defendant’s adverse conduct toward the plaintiff.
In the second stage, following the plaintiff establishing a prima facie case, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for its decision. McDonnell Douglas, supra at 802. If the employer is unable to satisfy its burden of production, it is presumed that the basis of the employer’s decision was discriminatory. Burdine, supra at 253.
If the defendant rebuts the presumption, then, in the third stage, the burden of production shifts back to the plaintiff creating “ ‘a new level of specificity.’ ” United States Postal Service Bd of Governors v Aikens, 460 US 711, 715; 103 S Ct 1478; 75 L Ed 2d 403 (1983), quoting Burdine, supra at 255; see also McDonnell Douglas, supra at 802-805. At this point, the plaintiff must establish that the employer’s articu lation was merely a pretext to discrimination. Id. at 804; Burdine, supra at 256.
B. ST MARYS HONOR CENTER v HICKS
Since the inception of the McDonnell Douglas approach, for the judiciary, “[f]inding a balance between protecting victims of subtle prejudice on the one hand, and overreaching into legitimate decision-making of business on the other,” has proven itself a difficult task. This is because in McDonnell Douglas the “[Supreme] Court did not . . . attempt to give any meaningful guidance as to how the specification of the required prima facie proof would be determined” for the third stage. Malamud, The last minuet: Disparate treatment after Hicks, 93 Mich L R 2229, 2245 (1995).
The Supreme Court’s most recent attempt to provide guidance came in Hicks. In that case, the Court addressed whether a trier of fact may issue judgment as a matter of law in favor of a plaintiff when the plaintiff has proven that an employer’s proffered reason for its employment action is false. In ruling that this alone is not adequate, the Court rewrote the third stage of the McDonnell Douglas approach. According to the Court, once the employer rebuts the presumption, McDonnell Douglas is no longer relevant — having fulfilled its role of forcing the defendant to come forward with some response, the presumption “simply drops out of the picture.” Hicks, supra at 511, quoting Burdine, supra at 255. After the defendant’s rebuttal, “the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven ‘that the defendant [was] intentionally discriminated against . . .’ because of his race . . . .’’Id. Once the defendant satisfies its burden of production, the factfinder must then decide not whether that evidence is credible but “ ‘whether the rejection was discriminatory within the meaning of Title VIL’ ” Hicks, supra at 519. “It is not enough ... to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.” Id. Thus, the Court held, regarding the plaintiff’s establishment of pretext, that “proving the employer’s reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination.” Hicks, supra at 517 (emphasis added). The Court concluded that the factfinder’s disbelief of the employer’s proffered reasons, together with the elements of the prima facie case, might suffice to show intentional discrimination. Hicks, supra at 511.
Although the Hicks majority appeared to be unambiguous, “many readers have found it to be otherwise.” 1 Lindemann & Grossman, Employment Discrimination Law (3d ed), p 24. Consequently, it is not surprising that
[s]ome employers have argued that, in order to defeat an employer’s motion for summary judgment, Hicks requires plaintiffs to offer . . . both that the employer’s articulated reason was false and that the employer’s true reason was discriminatory — i.e., a “pretext-plus” standard. Some plaintiffs, on the other hand, have argued that once a prima facie case of discrimination is put forward, summary judgment for the employer never is appropriate, even if no evidence is put forward to refute the employer’s articulated nondiscriminatory reason, because the factfinder’s disbelief alone should be enough to permit a finding of pretext. [Id., p 25 (citation omitted; emphasis in original).]
However, the majority in Hicks rejected both extremes. See Equal Employment Opportunity Comm v Yenkin-Majestic Paint Corp, 1997 US App LEXIS 4348. Instead, it favored an intermediate position. See Hicks, supra at 510-511. The majority held that “[e]ven though (as we say here) rejection of the defendant’s proffered reasons is enough at law to sustain a finding of discrimination, there must be a finding of discrimination.” Id. at 511, n 4. We, too, favor such a position and hold that when viewed in a light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could find that the employer’s stated reason is a pretext for discrimination for summary judgment to be precluded. Furthermore, we hold that “evidence sufficient to discredit a defendant’s proffered nondiscriminatory reasons for its actions, taken together with the plaintiff’s prima facie case, [may be] sufficient to support [but not compel] a finding of discrim ination.” Combs v Plantation Patterns, 106 F3d 1519, 1535 (CA 11, 1997).
In other words, we expressly adopt the intermediate approach endorsed by the United States Supreme Court in Hicks. For a plaintiff to survive summary disposition, he must always present an issue of fact regarding whether the defendant impermissibly discriminated. In some contexts, this may be shown merely by disproving the employer’s articulated reason, if, and only if, disproving the employer’s reason also shows discrimination. See Hicks, supra at 511, 519. See also Combs, supra at 1535. In other contexts, merely disproving an employer’s articulated reason will not prove discrimination. The bottom line is that there must always be evidence upon which reasonable minds could conclude that discrimination was the true motive for the decision. At summary proceedings, the evidence must always be taken in the light most favorable to the nonmoving party.
C. MATRAS v AMOCO OIL CO
In Matras, the plaintiff was discharged as a result of the defendant’s lay-off plan. In that case, we observed that “[a] jury c[ould] find that the discharge was ‘because of age’ even if age was not the sole factor”:
Evidence that a competent older employee was terminated and a younger employee was retained, is insufficient standing alone to establish a prima facie case when the employer reduces his work force because of economic necessity. The rationale behind the McDonnell Douglas formula is that its four-part test alone “eliminates the most likely legitimate causes for the employer’s adverse action.” This formulation is incomplete in the work-force-reduction situation.
To establish a prima facie case of age discrimination when an employer lays off employees for economic reasons, the . . . employee [must] present sufficient evidence on the ultimate question — whether age was a determining factor in the decision to discharge the older protected employee. Accordingly, in the instant case, the McDonnell Douglas prima facie case approach folds into the traditional directed verdict/judgment notwithstanding the verdict standard. [Id. at 684-685.]
We concluded that the McDonnell Douglas approach folds into the traditional summary disposition or directed verdict standard because in the context of an RIF we assume that the burdens of production required by the respective parties under the approach have already been met. As a result, because the burdens of production have been satisfied by the respective parties, all its presumptions “drop out” and the plaintiff is left to prove that reasonable persons could draw differing conclusions regarding whether discrimination was the true moti vation underlying the employer’s adverse action rather than an rif.
Even though our decision in Matras, as well as the Supreme Court decisions in McDonnell Douglas and Hicks came after full trials, the principle is the same in summary proceedings:
[O]nce the employer has advanced a legitimate, nondiscriminatory basis for its adverse employment decision, the plaintiff, before becoming entitled to bring the case before the trier of fact, must show evidence sufficient for the factfinder reasonably to conclude that the employer’s decision to discharge him or her was wrongfully based on age. “Direct or indirect evidence of discriminatory motive may do, but ‘the evidence as a whole . . . must be sufficient for a reasonable factfinder to infer that the employer’s decision was motivated by age animus. ’ ” Thus, the plaintiff cannot avert summary judgment if the record is devoid of adequate direct or circumstantial evidence of discriminatory animus on the part of the employer. \Woods v Friction Materials, Inc, 30 F3d 255, 260 (CA 1, 1994) (citations omitted, emphasis added).]
We recognize, however, in the context of an RIF, that merely showing someone similarly situated to the plaintiff who is outside the protected class will not be sufficient. In concluding so, we are guided by the decision of the Supreme Court in O’Connor v Consolidated Coin Caterers Corp, 517 US 308, 311-313; 116 S Ct 1307; 134 L Ed 2d 433 (1996). In O’Connor, the Court noted that a “substantially younger [person] than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class”:
As the very name “prima facie case” suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a “legally mandatory, rebuttable presumption,” Burdine, supra at 254, n 7. The element of replacement by someone under 40 fails this requirement. The discrimination prohibited by the adea is discrimination “because of [an] individual’s age,” 29 USC 623(a)(1), though the prohibition is “limited to individuals who are at least 40 years of age,” § 631(a). This language does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older.
Because the [Civil Rights Act] prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is afar more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class. [Id. at 311-313 (emphasis added).]
For these reasons, to survive a motion for summary disposition, once “the employer articulates a legitimate, non-discriminatory reason [for laying off the plaintiff,] . . . [t]he plaintiff must then introduce sufficient evidence to support two additional findings: (1) that the employer’s articulated reason for [laying off the plaintiff] is a pretext, and (2) that the true reason is discriminatory.” Smith v Stratus Computer, Inc, 40 F3d 11, 16 (CA 1, 1994).
Under some circumstances, however, as we previously observed, a plaintiff may not need to introduce additional evidence, aside from the evidence he presented to support these findings in the first stage under McDonnell Douglas, because (1) the plaintiff’s prima facie case may establish that the employer’s articulated reason for its adverse employment action is a pretext and (2) in establishing that the articulated reason was pretext, the plaintiff may have created a question of fact regarding whether the true reason is discriminatory. In other words, under such circumstances, simply disproving the employer’s articulated reason will suffice if, and only if, disproving the employer’s reason also proves discrimination. In other instances, however, simply disproving an employer’s articulated reason will not establish discrimination, and, as such, the plaintiff would then have to introduce additional evidence, aside from that which had already been presented in the first two stages of the McDonnell Douglas approach, to support these two findings. We recognize that additional evidence may be necessary because a plaintiff will not always present “a triable question of pretext simply because the plaintiff disputes the employer’s stated reason(s); put differently, that there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination.” Employment Discrimination Law, supra, p 26 (emphasis added and in original), citing, e.g., inter alia, Udo, supra at 13 (“to avoid summary judgment, the plaintiff [must prove both] that the employer’s articulated reason ... is a pretext, and . . . that the trae reason is discriminatory”). Therefore, we hold that in all actions involving claims of discrimination, there must always be evidence upon which reasonable minds could conclude that discrimination was the true motive for the employer’s adverse conduct against the plaintiff.
D. APPLICATION
We will assume that plaintiff established a prima facie case under McDonnell Douglas because her claim centers on defendant’s assertion that it was conducting an RIF. Accordingly, we must give the benefit of every reasonable doubt to plaintiff and determine whether she might sufficiently develop the record now before us to permit a jury to find that defendant’s proffered explanation as applied to her was a pretext to discrimination.
As evidence of age discrimination, plaintiff notes that it was only when Ozar retired and was replaced by Malady that problems arose. Thus, for approximately the first thirteen years with defendant corporation it is undisputed that she excelled in her duties as employment manager. We are unpersuaded that this permits an inference of discriminatory animus on the basis of age.
Aside from plaintiffs problems with Malady, it is undisputed that approximately six weeks before plaintiff’s discharge, defendant hired Achterhoff for the new position created at defendant’s Operhall Research Center. Achterhoff was a thirty-one-year-old woman who was paid ten thousand dollars more a year than plaintiff. Conversely, plaintiff, who was forty-four years old at the time of her discharge, had nineteen years of experience in the human resources department. Further, over those nineteen years, it is undisputed that she had been awarded a succession of promotions. Yet, in September before her formal discharge, defendant, while conducting an RIF, decided to hire Achterhoff and discharge plaintiff. Furthermore, defendant’s hiring of Achterhoff must be considered in light of the fact that plaintiff and Achterhoff both “had very similar employment histories . . . [with] comparative qualifications.” Post, pp 71-72. Hence, if both had similar qualifications, the fact that Achterhoff received greater pay than that of plaintiff at a time defendant asserts it was conducting an RIF creates a question of fact regarding defendant’s motive.
Plaintiff also evidenced defendant’s inconsistency in its hiring Billingsley. Roof testified that he discharged plaintiff to reduce the 1992 fiscal budget for the human resources department, yet it is undisputed that at least part of Billingsley’s salary was paid out of that budget. We note that plaintiff’s proofs regarding Billingsley standing alone would present a rather weak case. Nevertheless, we consider it along with the other evidence she presented with respect to her age-discrimination claim.
Plaintiff need not show that age was the determining factor in defendant’s decision to discharge her. Rather, she need only prove that it was “« determining factor.” (Emphasis added.) Therefore, we are persuaded that, despite defendant’s claim that it based its decision on economic necessity, plaintiff produced evidence that would permit reasonable persons to conclude that age more likely than not was a determining factor in the adverse employment action defendant took against plaintiff. She presented proof that defendant hired individuals, Achterhoff and Billingsley, who were younger and, thus, along with the inconsistencies in defendant’s proffered explanation, created a reliable indication that “but for” plaintiff’s age, she would not have been discharged. See O’Connor, supra.
Thus, this case is distinguishable from Matras, supra, in which there was a lack of “evidence that management favored younger workers . . . , tended to fire older workers ... , or suggested that older workers were disfavored” and where the defendant employer’s RIF was felt by workers of all ages. Matras, supra at 713 (Riley, J., dissenting). Rather, here, defendant contends it discharged plaintiff out of economic necessity, but it then hired substantially younger persons at higher rates of pay with markedly less experience than that possessed by plaintiff, despite its claim that it was reducing its work force out of economic necessity. Plaintiff demonstrated the anomaly in defendant’s assertion that it was conducting an RIF.
Accordingly, this evidence suggests that defendant’s reason for discharging plaintiff was only a pretext for favoring the younger hirees over the older plaintiff. We axe persuaded that plaintiff’s proofs make it more likely than not that “[defendant’s] proffered explanation [as applied to this plaintiff] is unworthy of credence.” La Montagne v American Convenience Products, Inc, 750 F2d 1405, 1409 (CA 7, 1984).
As evidence of sex discrimination, plaintiff points to her dealings with Malady. The Court of Appeals agreed that this evidence was sufficient to raise “a genuine issue of material fact with respect to a prima facie case of gender discrimination, i.e., that she was treated more harshly than similarly situated male employees.” Id. at 193.
While we agree that these facts raise suspicion, we are persuaded that the Court of Appeals erred by exclusively focusing on the confrontations plaintiff had with Malady. We conclude that it failed to properly determine whether defendant considered plaintiffs sex in its decision to discharge her. This is not to say that plaintiffs confrontations with Malady are irrelevant. Instead, these confrontations must be considered in light of the ultimate question — whether plaintiff’s sex was a determining factor in defendant’s decision to discharge her.
Hence, viewing the evidence in a light most favorable to plaintiff and drawing every reasonable inference in her best regard, we conclude that plaintiff created a genuine issue of material fact whether defendant considered her sex in its decision to discharge her. Plaintiffs confrontations with Malady were not isolated incidents. Before Roofs hiring of Malady in March 1987, plaintiff had a succession of promotions, culminating in her appointment to the position of “Employment Manager.” When Roof became plaintiffs direct supervisor in 1985, because of Ozar’s retirement, she continued to receive favorable employment evaluations, indicating that her performance was outstanding. Then, in March 1987, Roof hired Malady as his direct subordinate and plaintiffs supervisor. Plaintiff retained her job title as “Employment Manager,” even though Malady only served as a supervisor of the Whitehall Machined Products Division. See n 2. In June 1987, defendant corporation’s annual picnic was held. Before the picnic, Malady requested that all female employees in the human resources department wear dresses. Plaintiff, having attended the picnic in previous years, was aware of no company requirement that mandated that all female employees wear dresses. Accordingly, because she had never worn a dress in the past, and being unhappy with the inconvenience of being forced to wear a dress to an outdoor picnic, plaintiff wore slacks. Soon after the picnic, Malady inexplicably conducted a performance evaluation of plaintiff. He did so despite standard operating procedures for the human resources department, recognizing that performance evaluations were to be conducted in December of each calendar year as a precursor to evaluations and decisions regarding merit pay raises, as well as promotions. Malady’s negative evaluation of plaintiff was the first she ever received while employed by defendant corporation, i.e., from the time plaintiff was hired in 1973 until this evaluation, fourteen years, she had never received a negative performance appraisal. Other confrontations between Malady and plaintiff soon ensued, which finally culminated with Boczkaja replacing plaintiff as employment manager and plaintiff being given the new title of human resources specialist. This is in light of the fact that Boczkaja was trained by plaintiff and had been her subordinate for the previous ten years.
Standing alone, we believe that plaintiff’s confrontations with Malady do not create a question of fact regarding whether sex was a determining factor in defendant corporation’s decision to discharge her. However, these facts must not be viewed in a vacuum, but, rather, in light of the other facts now before us. The same day plaintiff was discharged, defendant hired Billingsley to work in the training program for the work-cell project. Billingsley had worked several different jobs, mostly involving manufacturing, yet was promoted to manager of training. Moreover, Roof stated that Billingsley’s new position was to be included in his budget, despite defendant’s assertion that the human resources department had to reduce its budget by over $400,000 for the 1991 fiscal year. In light of defendant’s contention that it was conducting an rif, a reasonable trier of fact could conclude that its hiring of Billingsley, at a higher rate of pay, even though he had substantially less experience than that possessed by plaintiff, was merely a pretext to discrimination. It is uncontested that a portion of Billingsley’s salary was paid out of the human resources department’s budget.
Reinforcing the genuineness of plaintiff’s claim is the fact that plaintiff was not considered fairly for the position Achterhoff ultimately assumed. Inexplicably, plaintiff, who was fully qualified and possessed substantially more experience than Boczkaja, who had been her subordinate at one time, was not even considered for the new position the management of defendant’s Operhall Research Center sought to create. In his deposition, Roof admitted that he never considered plaintiff for the new position, even though it included duties she could have assumed considering her nineteen years of experience at Howmet, as well as her “comparative qualifications” to those of Achterhoff, who eventually was hired. Of course, we are not ruling that the Civil Rights Act mandates that employers establish an interdepartmental transfer program during the course of an RIF. See Jameson v Arrow Co, 75 F3d 1528, 1532-1533 (CA 11, 1996). Rather, we observe, in the face of the evidence presented by plaintiff, that it appears pretextual that defendant would only consider Boczkaja and defendant Malady as candidates for the new position and ultimately hire Achterhoff. Moreover, it appears pretextual that defendant would hire Billingsley over the more qualified plaintiff to assume responsibility regarding training and development for the “Whitehall training function.”
Thus, the record as a whole suggests, in light of common experience, that a genuine issue of material fact exists regarding whether defendant’s proffered explanation for discharging plaintiff was merely a pretext to age and sex discrimination.
In this case, we conclude that defendant’s policy statement could have reasonably created a legitimate expectation of just-cause employment. However, defendant’s reduction in work force was bona fide as a matter of law. Notwithstanding, we conclude that a genuine issue of material fact exists regarding whether age was a determining factor in defendant’s decision to discharge plaintiff. Also, we conclude that a genuine issue of fact exists regarding whether defendant considered plaintiff’s sex in its decision to terminate her.
Thus, we reverse the Court of Appeals decision holding that the trial court erred in summarily dismissing plaintiff’s claim for breach of contract of just-cause employment. We affirm both the decision of the Court of Appeals concluding that plaintiff raised a genuine issue of material fact regarding whether defendant considered plaintiff’s age as a determining factor in its decision to terminate her and its decision that a genuine issue exists regarding whether defendant considered plaintiff’s sex in its decision to terminate her.
Mallett, C.J., concurred with Riley, J.
Defendant is a subsidiary of Pechiney, a government-owned French conglomerate. Headquartered in Delaware, Howmet has operated a facility in Whitehall, Michigan, since the early 1950s.
The Whitehall operation was composed of: the Misco Whitehall Division; the Product Support Operations, which includes the Machined Prod ucts, Ceramic Products, and Thermotech Coating divisions; the Reactive Metal Operations, which includes the Ti-Cast and Ti-Ingot divisions; and the Technical Center, which includes the Data and Operhall Research divisions.
Normal procedure was to submit evaluations regarding job performance each December for the previous twelve months.
Personnel support departments included: human resources, payroll, and accounts payable.
At his deposition, Wright reflected on a more competitive and shrinking financial market that necessitated a need for the fifteen percent cut.
Plaintiff admitted that she has limited knowledge of Achterhoffs academic and employment backgrounds.
In sum, a total of ninety-one persons were terminated in 1991 at defendant’s Whitehall operation, of which fifty-four were under the age of forty and sixty-eight were men.
An additional count was filed against defendant Malady, alleging tortious interference with contractual relations. Malady’s motion for summary disposition was granted and subsequently affirmed by the Court of Appeals. We leave that aspect of the Court of Appeals decision undisturbed.
451 Mich 920 (1996).
The Court may not make actual findings or weigh the credibility of the evidence presented. Featherly v Teledyne Industries, Inc, 194 Mich App 352, 357; 486 NW2d 361 (1992).
In accordance with MCR 2.116(G)(4), the nonmoving party may not rest on mere allegations or denials in the pleadings. Durant v Stahlin, 375 Mich 628, 639; 135 NW2d 392 (1965). If the nonmoving party is able to produce some evidence, all inferences and the benefit of any reasonable doubt must be made in his favor. Id. at 638.
The contract may be enforceable, although neither party signed the policy statement, because of the benefit that accrues to an employer when it establishes desirable personnel policies. Toussaint, supra. Hence, under Toussaint, written personnel policies are not enforceable because they have been “offered and accepted” as a unilateral contract; rather, their enforceability arises from the benefit the employer derives by establishing such policies. In re Certified Question (Bankey v Storer Broadcasting Co), 432 Mich 438, 453; 443 NW2d 112 (1989). See also Toussaint, supra at 613. In Bankey, supra at 453, this Court explained that when an employer establishes personnel policies in which it gamers a benefit for the burden it has voluntarily accepted, the employer has then created a situation “instinct with an obligation.” See also Renny v Port Huron Hosp, 427 Mich 415, 429; 398 NW2d 327 (1986).
In Rood, supra at 140-141, we explained:
The common thread running through our decisions in Toussaint and Renny is the presence of clear and specific employer policy statements, regarding employee discharge. Otherwise stated, the handbooks in both Toussaint and Renny contained statements reasonably capable of being interpreted as promises to discharge only for just cause. Consistent with Toussaint and Renny, we therefore hold that, in all claims brought under the legitimate expectations theory of Toussaint, the trial court should examine employer policy statements, concerning employee discharge, if any, to determine, as a threshold matter, whether such policies are reasonably capable of being interpreted as promises of just-cause employment. If the employer policies are incapable of such interpretation, then the court should dismiss the plaintiff’s complaint on defendant's motion for summary disposition. MCR 2.116(C)(10). If, however, the employer’s policies relating to employee discharge are capable of two reasonable interpretations, the issue is for the jury. [Emphasis added.]
Grow v General Products, Inc, 184 Mich App 379, 386; 457 NW2d 167 (1990).
The disclaimer stated that “[t]he company reserves the right to terminate employees without assigning cause; therefore, the employee serves at the will of the employer.”
She also submits that as a result of her reliance, “there was by express words or operation of law, an agreement between the parties by which defendant Howmet was contractually obligated not to terminate [her] employment except for good cause.”
Justice Boyle contends that “plaintiff cannot have it both ways. Either the handbook applied to her employment relationship ... or it did not apply to her . . . .” Post, p 53. A basic rule of contract law is that contradictory terms or meanings are construed against the drafter. In this case, the drafter was defendant. Hence, it is defendant, and not plaintiff as Justice Boyle contends, that “cannot have it both ways.” Defendant cannot create security in its work force by expressing in its policy manual that its employees will be discharged only for cause and then express to its employees that they have no expectation of just-cause employment.
Justice Boyle asserts that “the employer's relevant manifestations amounted to two separate representations.” Post, p 58. We agree and conclude that defendant did not manifest a clear intent. Defendant left contradictory language in its policy manual. Hence, a question of fact exists regarding whether plaintiff had a legitimate expectation of just-cause employment. See Rood, supra at 138-141.
Justice Boyle also contends, citing Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996), that “[a] conclusion that similar language does not protect a defendant from a just-cause claim would be logically inconsistent.” Post, p 59. Again, we observe that Justice Boyle fails to account for the contradictory language within defendant’s policy manual. Furthermore, this Court’s decision in Heurtebise does not apply because that case concerned the enforceability of an arbitration provision found in a manual containing a contractual disclaimer. Accordingly, Heurtebise does not control because plaintiff’s claim relies on the legitimate expectation test under Rood, supra at 137-140. Moreover, in Heurtebise, supra at 414, the defendant clearly manifested its intent not to “be bound to any provision contained in the handbook.”
See In re Certified, Question, supra at 457, Grow, n 14 supra, and accompanying text.
See also Bhogaonker v Metropolitan Hosp, 164 Mich App 563, 564; 417 NW2d 501 (1987).
21 If a plaintiff can prove “fraud, bad faith or subterfuge on the part of the board in its decision,” the layoffs will not be bona fide. See Friske, supra at 472.
By the September 14, 1992, hearing on defendant’s motion for summary judgment, plaintiff had not presented this documentation.
It is undisputed that defendant was conducting reductions in its work force elsewhere. In his deposition, Wright stated that not only was defendant conducting an rip at its Whitehall facility division-wide, but it was also conducting “similar reductions . . . elsewhere in the Howmet organization.” More particularly, Wright said:
In Tennessee in the past year, the employment had dropped from the neighborhood of 650 employees down to around 400. LaPorte recently had a rather major layoff. The exact number of people, I’m not sure, but I understand it was fairly large. In the meantime, we have also closed a plant in Plymouth, Michigan, and moved that to Dover, New Jersey.
We closed Whitehall Machining here and moved that operation to Winstead, Connecticut, and we also recently closed the Reno, Nevada, plant and moved that operation to Whitehall. I know that Dover’s employment has dropped from the neighborhood of 1600 people a few years back to about 1100 people now. I know that our employment is down in the neighborhood, I think, around 2450 or somewhere in that neighborhood here in Whitehall from a high, I believe, of around 4100 a few years back. [Emphasis added.]
On the basis of evidence presented in a similar case, Krantz v Howmet Corp (Circuit Court No. 90-26815-CK; Court of Appeals No. 159045), Justice Cavanagh asserts that plaintiff could establish that defendant’s rif was not bona fide. We disagree. In Krantz, the plaintiff deposed expert Dr. William King. He testified against defendant Howmet. Dr. King stated that “the corporation Howmet located in Greenwich, Connecticut, has been showing increased net worth, increased retained earnings, and increased sales over the past five years . . . so . . . pleading that they have financial difficulties seems unreasonable.” Nevertheless, on being asked whether “it [was] true that a business can be experiencing a decline in orders for its products and taking reasonably prudent business actions to reduce its work force so that the work force is in proportion to the work that it has,” Dr. King answered “Yes.”
Hence, Dr. King’s testimony supports the conclusion that a company can have overall profitability and, yet, in order to maintain profitability, it may also need to reduce its work force. Even if Dr. King were to testify in this case, we are persuaded that his testimony would be of no consequence to invalidating defendant’s company-wide rif. Moreover, he would have an insurmountable burden in demonstrating that defendant’s discharge of approximately fifty percent of its work force at its Whitehall operation was merely a pretext to discharging plaintiff.
This Court had long ago decided that courts should be reluctant to second-guess management in its day-to-day operations. See, e.g., Dodge v Ford Motor Co, 204 Mch 459, 507-508; 170 NW 668 (1919) (payment of dividends); Nahikian v Mattingly, 265 Mch 128; 251 NW 421 (1933) (fixing salaries of officers); Barrows v J N Fauver Co, 280 Mch 553, 558; 274 NW 325 (1937) (building plants and purchasing property); Reed v Burton, 344 Mch 126; 73 NW2d 333 (1955) (selling property); Pettengill v Monteith Land Co, 334 Mch 632; 55 NW2d 130 (1952) (entering into contracts); Wayne Co Prosecuting Attorney v Nat’l Memorial Gardens, Inc, 366 Mich 492, 496; 115 NW2d 312 (1962) (the business judgment rule “applies only to cases where there has been no fraud, misconduct, or abuse of discretion by the officers and directors”).
Even though an employer may have grounds to discharge an employee, it “may not decide which employees to lay off on the basis of considerations that are prohibited by law, such as race, gender, or age.” See Featherly, n 10 supra at 355, citing King v Michigan Consolidated Gas Co, 177 Mich App 531; 442 NW2d 714 (1989), and Schipani v Ford Motor Co, 102 Mch App 606; 302 NW2d 307 (1981) (“Both cases taken together implicitly stand for the proposition that where an employer has a legitimate reason to terminate [e.g., economic necessity or a contract for employment at will], it may not do so for illegal reasons such as unlawful discrimination”).
The Court of Appeals incorrectly cites McCart, supra, for the proposition that “an employer may not use economic necessity as a pretext for unlawful discrimination.” However, in McCart, supra at 115, we merely noted that “[t]he objective circumstances, as presented by defendant’s proofs, indicate[d] no more than a termination resulting from an economically motivated work-force reduction.” As such, we concluded that the plaintiff failed to present evidence sufficient to establish that the defendant’s rif was not bona fide. We stated that in order to establish an issue of fact, the plaintiff had to “ ‘establish that he has a case on the law and that there are some evidentiary proofs to support his allegations as to any material fact.’ ” Id., quoting Durant, supra at 638. We continued by observing:
This case thus stands in marked contrast to . . . Ewers . . ■, where “plaintiff relied on deposition and documentary evidence which he argued indicated that defendant was experiencing substantial economic growth and operating at a substantial profit before and after his discharge.” Id. at 375. [McCart, supra at 115-116.]
More particularly, in Ewers, supra, the plaintiffs evidence was overwhelming in demonstrating that the defendant’s RIF was not bona fide. “[The] plaintiff showed a pattern of positive net earnings and increased dividends ... [as well as] ... an increase in the total salaried work force from 600 to approximately 2,100.” Id. at 376. He “established that full bonuses were to be paid to participants in the incentive compensation plan based on the company’s profitable performance . . . .” Id. He also presented evidence undercutting the defendant’s assertion that the defendant’s financial condition necessitated the discharge of plaintiff and others. Id. at 379. He showed that “[d]uring the same time period defendant bought Schaefer Brewery for $80,000,000 and Schlitz for $660,000,000.” Further, he proved that “[t]he reduction in force was carried out with little or no advanced planning and with no study of its need or effect on the corporation . . . .” Id. at 376.
In this case, the Legislature has provided plaintiff recourse under the Civil Rights Act. MCL 37.2202; MSA 3.548(202).
Furnco Construction Corp v Waters, 438 US 567, 577; 98 S Ct 2943; 57 L Ed 2d 957 (1978).
La Montague v American Convenience Products, Inc, 750 F2d 1405, 1409 (CA 7, 1984) (“The defendant’s burden is only one of production; the burden of persuasion rests at all times on the plaintiff”).
McDonnell Douglas, supra at 802. See also, e.g., Parnell v West, unpublished opinion, 1997 WL 271751 *2; 114 F3d 1188 (CA 6, 1997), citing Christopher v Stouder Memorial Hosp, 936 F2d 870, 877 (CA 6, 1991); Robinson v Overseas Military Sales Corp, 21 F3d 502, 508 (CA 2, 1994).
Because the Civil Rights Act places no lower or upper limit on a plaintiff’s age, we conclude that this requirement is relative and must be determined on a case-by-case basis in accordance with the dictates of this opinion.
The Circuit Court of Appeals for the First Circuit in Woods v Friction Materials, Inc, 30 F3d 255, 260 (CA 1, 1994), succinctly set forth the plaintiff’s burden:
To meet this burden, the [plaintiff] must prove both that the employer’s articulated reason is false, and that discrimination was the actual reason for its employment action. See Hicks, supra at [511] n 4. If [the] plaintiff “fails to show ‘pretext,’ [for discrimination] the challenged employment action ‘must stand.’ ” Id. at [516], n 6 (quoting McDonnell Douglas, [supra] at 807).
See Essary, The dismantling of McDonnell Douglas v Green: The high court muddies the evidentiary waters in circumstantial discrimination cases, 21 Pepp L R 385, 386 (1994).
This is the law in the Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Eleventh, and District of Columbia Circuits. See, e.g., EEOC v Ethan Allen, Inc, 44 F3d 116, 120 (CA 2, 1994), Sheridan v El DuPont de Nemours & Co, 100 F3d 1061, 1066-1067 (CA 3, 1996) (en banc), Mitchell v Data General Corp, 12 F3d 1310, 1316 (CA 4, 1993), Manzer v Diamond Shamrock Chemicals Co, 29 F3d 1078, 1083 (CA 6, 1994), Perdomo v Browner, 67 F3d 140, 146 (CA 7, 1995), Gaworski v ITT Commercial Finance Corp, 17 F3d 1104, 1110 (CA 8, 1994), Washington v Garrett, 10 F3d 1421, 1433 (CA 9, 1993), Combs, supra, and Barbour v Merrill, 310 US App DC 419, 426; 48 F3d 1270 (1995).
For example, when an employee is discharged because of an rif, he necessarily established a prima facie case, the first stage of McDonnell Douglas-. (1) he is in the protected class; (2) he suffered an adverse employment action when he was let go by the company, (3) he was qualified for the position because he had retained the position for many years, and (4) younger employees who were similarly situated were retained. Similarly, the employer necessarily met its burden of production, i.e., it let the employee go because of a reduction in its work force.
36 See also LeBlanc v Great American Ins Co, 6 F3d 836, 843 (CA 1, 1993).
In accord with the intermediate position we previously adopted, “evidence sufficient to discredit a defendant’s proffered nondiscriminatory reasons for its actions, taken together with the plaintiffs prima facie case, [may be] sufficient to support [but not compel] a finding of discrimination,” i.e., it may be sufficient to support the “two findings.” Combs, supra at 1535.
In part n of this opinion, we held that defendant’s rif was bona fide. However, as to plaintiff, we still must determine in her particular situation whether defendant considered an unlawful discriminatory criterion in its decision to discharge her.
The dissent’s analysis is fundamentally flawed because it consistently fails to apply the well-accepted rule that the benefit of every reasonable doubt must be given to the nonmoving party and the reviewing court only is to determine whether the record might be developed that would leave open an issue upon which reasonable minds could differ. Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994). The dissent also consistently violates the principle that the reviewing court is not to make findings of fact or weigh credibility in deciding a motion for summary disposition. See Featherly, n 10 supra; Paul v US Mut Financial Corp, 150 Mich App 773, 779; 389 NW2d 487 (1986), citing Durant, supra.
The dissenting justices improperly analyze plaintiffs proofs by asserting that “Achterhoff took a newly created position,” and, therefore, plaintiff failed to present evidence of age discrimination. Post, p 70. However, whether Achterhoff replaced plaintiff is of no consequence. Instead, our concern centers on whether others similarly situated to plaintiff were not affected by defendant’s adverse employment action.
Justice Boyle notes that “with regard to the personnel decision itself, the decision to eliminate plaintiff’s position was not made by Mr. Malady . . . .” Post, p 65. We disagree. Malady made the original adverse employment decision, i.e., his inexplicable evaluations led to plaintiff’s demotion. Roof admitted that plaintiff was never considered for the position Achterhoff ultimately assumed. It was Roof who had to eliminate fifteen percent of his 1992 fiscal budget. It was Roof who decided to eliminate plaintiff’s position, along with three other positions, i.e., two plant medical staff and the employee assistance program assistant.
The dissent places great weight on the fact that plaintiff was not formally “terminated” until November. Still, the dissent admits that the decision to discharge plaintiff had already been made the previous September, the same time defendant corporation hired Achterhoff. Hence, that plaintiff was not formally released until the following November is of no consequence.
The dissent, quoting the United States District Court for the Southern District of Alabama in Martin v Teledyne Brown Engineering, 924 F Supp 1131, 1138, n 4 (SD Ala, 1996), concludes that “[t]he fact that Ms. Achterhoff’s salary was not paid from the human resources department’s budget is consistent with the employer’s stated business reason . . . .” Brickley, J., post, p 72, n 8. We disagree. Defendant stated that it eliminated plaintiffs position. Thus, Achterhoffs salary necessarily was going to be paid from a different budget. Given that “everything depends on the individual facts,” Woods v Friction Materials, supra at 260, n 3, the record now before us persuades us to believe a genuine question of fact exists regarding whether defendant decided to discharge plaintiff on the basis of considerations that are prohibited by law.
The dissent claims that we overlooked the fact that “Billingsley was only five years younger than the plaintiff.” Post, p 73. Even though we conclude that in the instant case that this is not a clear indication of age discrimination, we cannot say that this “evidence of age differential is not relevant.” Matras, supra at 708, n 10 (Riley, J., dissenting). Each case must be decided on its own particular circumstances. Id. at 707 (Riley, J., dissenting) quoting McDonnell Douglas, supra at 802. Further, the reviewing court must view all admissible evidence in a light most favorable to the nonmoving party. Durant, supra.
The dissent argues that “[t]his type of personnel change is inherent in corporate restructuring and does not constitute evidence of discrimination.” Post, p 74. We disagree if the true reason for the retention of one employee over another is discriminatory.
Justice Boyle observes that “the statistical evidence established that between 1987 and 1992, the number of employees in Whitehall declined almost fifty percent, from 4,100 to 2,450, and the rif resulted in termination of ninety-one employees in 1991, fifty-four of whom were under the age of forty and sixty-eight of whom were men.” Post, p 65. We agree that defendant’s rif was bona fide with respect to it having just-cause to discharge plaintiff under her contract. However, “[e]ven though an employer may have grounds to discharge an employee, it may not proceed to unlawfully act against a particular employee.” See Featherly, n 10 supra. Accordingly, merely because defendant’s rif was found to be bona fide, the Court must still determine whether plaintiff established that she was treated differently than “persons situated similarly” to her. Smith, supra at 16.
In this case, the record evidences that plaintiff was not situated similarly to all ninety-one employees.
Justice Boyle asserts that “[c]ertainly, if Justice Riley believed that the evidence produced by the plaintiff in Matras [supra], was insufficient to show ‘age was a determining factor in [the plaintiffs] discharge,’ id. at 715 (Riley, J., dissenting), the considerably weaker evidence in this case could not support a finding of discriminatory animus.” Post, pp 65-66. We disagree. First, each case is factually different from the other and must be decided on the basis of its own particular circumstances. See Matras, supra at 707 (Riley, J., dissenting), quoting McDonnell Douglas, supra at 802. Second, the evidence produced by the plaintiff in Matras, supra, was weaker, not stronger, than the evidence produced by plaintiff Lytle. For example, in Matras, supra at 713 (Riley, J., dissenting), “[w]hat the record [did] show [was] that two younger people whose performance was rated the same as plaintiff’s were also discharged.” Accordingly, as compared to plaintiff Lytle, plaintiff Matras presented considerably weaker proof establishing that he was treated differently than others situated similarly to him.
We must remember that the issue we now decide is not whether plaintiff was in fact discharged because of her age, that remains to be determined at trial. Instead, we only have to determine whether plaintiff’s evidence would allow a jury to find that defendant’s proffered explanation was a pretext to discrimination.
The dissent questions why we ignore Achterhoff’s hiring in our analysis. The dissent itself ignores the fact that sex discrimination centers on whether one sex has been treated differently than a similarly situated individual from the opposite sex. Hence, because Achterhoff is female, we briefly reference that she was the individual eventually hired for the new human resources position at defendant Operhall Research Center. Because Malady and Boezkaja are male, they are more significant to our discussion. Roof testified that Malady and Boezkaja were the only ones considered from a list he compiled of potential candidates for the position. Moreover, in compiling the list, Roof admitted that plaintiff was not even considered. Thus, when Malady and Boezkaja were selected as possible candidates by Operhall management, plaintiff’s name was nowhere to be found. Notwithstanding, the dissent contends that because “several of [plaintiff’s] former duties were assigned to female employees,” that this “is inconsistent with sex discrimination.” Post, p 75. On the basis of the dissent’s reasoning, plaintiff could only establish her claim if defendant corporation had discharged all its female employees. Such reasoning is misplaced.
Plaintiff’s responsibility as “Employment Manager” was to administer defendant corporation’s affirmative action program. In September 1987, Malady, without conferring with plaintiff, made a hiring for a job opening that was to be filled by plaintiff from her affirmative action/EEO file. She confronted Malady by telling him that he was undermining her affirmative action responsibilities. When Malady did not respond, plaintiff went to Roof and complained. Roof issued a memorandum objecting to his interference with plaintiff’s responsibilities. Shortly thereafter, Malady published another negative written evaluation of plaintiff’s performance.
See, e.g., Jameson v Arrow Co, 75 F3d 1528, 1532-1533 (CA 11, 1996). Although the plaintiff in Jameson, applied for the position available before her discharge, it is clear plaintiff here wanted to be fairly considered for the position Achterhoff eventually assumed. Hence, “where a job for which the plaintiff is qualified, and for which the plaintiff applies, is available at the time of termination, and the employer offers the job to an individual outside the protected age group, an inference of intentional discrimination is [sometimes] permissible.” Id. at 1532. It all depends on the particular facts before the reviewing court.
Roof indicated that he was directed by Operhall management to compile a list of employees from the human resources department to head an independent department. From that list, someone was to be selected to oversee the development of defendant corporation’s new work-cell proj ect. After reviewing the qualifications of those listed, Operhall management identified Malady and Boczkaja as the two most promising candidates. Plaintiff’s name never made the list. Because Malady was not available and Boczkaja decided to stay on in his current position, Roof went to the private sector and hired Achterhoff.
Justice Boyle states that “[gjiven the fact that Justice Riley concluded in Matras that the civil rights laws were ‘ “not intended as a vehicle for judicial review of business decisions,” ’ id. at 715, I am unable to understand how she can find this plaintiff’s evidence sufficient to survive summary disposition under the articulated standard.” Post, p 66.
We agree that the civil rights laws were not “ ‘intended as a vehicle for judicial review of business decisions.’ ” Id. However, we also conclude that an employer “may not proceed to unlawfully act against a particular employee,” although the employer may have been conducting a generally bona fide rif. See Featherly, n 10 supra.
Justice Boyle herself concludes that “[s]tripped to its essentials, plaintiff’s proofs, when viewed in a light most favorable to her, consist of evidence that she was replaced during a reduction in force by employees who were younger and possibly less qualified than she was.” Post, p 67.
Justice Boyle fails to appreciate her own conclusion. She agrees that plaintiff sustained her burden, yet concludes that summary disposition was proper. Furthermore, her contention that the lead opinion “eschews any analysis of plaintiffs proofs regarding pretext in the context of the civil rights claim,” is lacking. Id., p 63. We find that her focus on “plaintiffs remaining proofs,” is incorrect. Id. Instead, the issue before us involves whether a reasonable trier of fact may find for plaintiff upon examining all plaintiff’s proofs, not merely “plaintiff’s remaining proofs.” | [
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Brickley, J.
The principal issue of law in this case is whether defendant-appellant Allstate may disclaim liability as a result of plaintiff-appellee’s failure to comply with a notice-of-suit provision in his homeowners policy. The Court of Appeals affirmed the circuit court’s finding that Allstate was not prejudiced by any defect in plaintiff’s compliance with that notice provision. For the reasons that follow, however, we reverse the decision of the Court of Appeals and remand to the trial court for entry of final judgment in favor of defendant-appellant Allstate.
i
This appeal arises from an underlying intrafamily tort suit brought as a result of a personal injury accident that occurred on plaintiff Thomas Koski’s property in Saginaw County on October 31, 1984. At that time, plaintiffs minor daughter, Nikki Koski, suffered serious injuries when her foot was caught under the wheels of a garden tractor owned and operated by plaintiff.
In 1976, plaintiff purchased a homeowners insurance policy designated “U9002” from defendant-appellant Allstate. Plaintiff continued to renew and maintain the coverage in succeeding years by paying the annual premiums billed by Allstate. In 1982, Allstate sent plaintiff a new policy designated “AU421,” which, unlike the earlier policy, excluded intrafamily suits.
Both the U9002 and AU421 policies contained provisions detailing plaintiffs duties in the event of an accident, claim, or suit. Among those provisions was a requirement that plaintiff forward to Allstate any legal papers he received concerning any accident or claim. The policies make satisfaction of those requirements a condition precedent to Allstate’s liability on the policy.
When Nikki’s father filed a claim shortly after the accident, Allstate advised him that the AU421’s household exclusion precluded coverage. While the record does not reveal what transpired between the parties during the ensuing two years, Nikki’s attorney contacted Allstate in 1986 in an effort to reach a settlement on Nikki’s injury. Allstate again responded that there was no coverage.
In 1987, Nikki, through her mother, filed a tort suit against plaintiff, her father, for money damages in Saginaw Circuit Court. Plaintiff did not notify Allstate of the suit, nor did he defend the action, and on February 5, 1990, a default judgment was entered against plaintiff in the amount of $60,957.39. It was not until May 3, 1990, that plaintiff’s counsel informed Allstate of the default judgment and demanded payment. On October 26, 1990, plaintiff filed the instant declaratory action in Saginaw Circuit Court against Allstate for indemnification of the judgment. Plaintiff’s complaint asserted that because Allstate did not sufficiently alert him to the AU421’s reduction in cover age, the earlier policy without the household exclusion applied.
The matter went to trial in November 1991, and the jury, by special verdict, found that Allstate did not sufficiently call to plaintiffs attention the reduction in coverage. Thereafter, the court denied Allstate’s motion for summary disposition, ruling that because the jury found that the notice was insufficient, the earlier policy remained in effect. In addition, the circuit court summarily ruled that Allstate was not prejudiced by any defect in plaintiff’s compliance with the notice provision of the policy.
The Court of Appeals affirmed, 213 Mich App 166; 539 NW2d 561 (1995), concluding that, although it was error to submit the issue of the sufficiency of notice to the jury, the error was harmless because Allstate’s notice of the household exclusion was not sufficiently emphasized and was therefore inadequate as a matter of law. The Court of Appeals also ruled that Allstate was not prejudiced by plaintiff’s failure to formally notify Allstate of the suit because it received prompt notice of Nikki’s accident, “as well as inquiries from [Nikki’s] attorney suggesting an impending suit and notice of a default judgment . . . .” Id. at 175. We granted leave to appeal on both issues. 454 Mich 878 (1997).
n
The controlling issue presented in this appeal is whether plaintiff’s failure to comply with the notice-of-suit provision under either policy effectively dis charged Allstate from any liability for Nikki’s injury. It is uncontroverted that plaintiff complied with the notice-of-claim requirement when he contacted Allstate after Nikki’s accident. However, it is also undisputed that plaintiff did not forward any suit papers to Allstate until three months after the entry of default judgment.
In this case, plaintiff’s duty to immediately forward any legal papers relating to a claim is a condition precedent to Allstate’s liability under either policy. Ordinarily, one who sues for performance of a contractual obligation must prove that all contractual conditions prerequisite to performance have been satisfied. However, it is a well-established principle that an insurer who seeks to cut off responsibility on the ground that its insured did not comply with a contract provision requiring notice immediately or within a reasonable time must establish actual prejudice to its position. Weller v Cummins, 330 Mich 286; 47 NW2d 612 (1951); Wendel v Swanberg, 384 Mich 468; 185 NW2d 348 (1971). See also 1 Windt, Insurance Claims & Disputes (3d ed), § 3.05, p 123.
The purposes served by notice provisions have previously been the subject of judicial discussion by this Court. As we explained in Weller:
One of the purposes of the provision requiring notice of accident is to give the insurance company knowledge of the accident so that it can make a timely investigation in order to protect its interests. It is also true that the provisions in the insurance policy requiring the insured to “immediately forward to the company every demand, notice, summons, or other process received by Mm” is to give the insurance company knowledge and information that an action has been instituted against the insured party. It follows that if the insurance company received adequate and timely information of the accident or the institution of an action for the recovery of damages it is not prejudiced, regardless of the source of its information. [Id. at 293.]
The evidence in the instant case established that Allstate received no notification of the suit brought against plaintiff until three months after the entry of the default judgment. Moreover, nothing in the record indicates that Allstate would have refused to defend the suit, if asked, under a reservation of rights. Consequently, Allstate was deprived of any opportunity to engage in discovery, cross-examine witnesses at trial, or present its own evidence relative to liability and damages.
Plaintiff asserts that our previous rulings in Weller and Wendel, supra, support the proposition that, even if an insured fails to forward suit papers, there is prima facie evidence of no prejudice once an insurer rejects a claim. We are unpersuaded by plaintiffs interpretation because, as we explained in Weller, notice-of-claim and notice-of-suit provisions exist independently of each other and serve different purposes.
We also believe that plaintiff misstates our precedent, which, properly understood, does not support a conclusion that plaintiff was excused from the notice provisions at issue here. The insurers in both Weller and Wendel not only conducted full investigations of their insured’s claims, but also knew of the litigation against them. The critical difference between those cases and the instant one is that here it is undisputed that Allstate never received any information before the default that plaintiff had been sued. We believe that it is erroneous to impose on an insurer a duty to determine if suit has been filed and served when its policyholder has not forwarded suit papers, nor should an insurer be saddled with the “sentry duty of tracking back and forth to the court house to keep a check on if or when [the insured] may be served with process.” Weaver v Hartford Accident & Indemnity Co, 570 SW2d 367, 369 (Tex, 1978).
Plaintiff also maintains that Allstate was not prejudiced because it received notice of the default judgment before it became final, and could have taken certain steps to set the judgment aside. We believe that plaintiff overstates Allstate’s ability to set aside the default judgment because it is far from certain that Allstate, standing in the shoes of plaintiff, could have established its entitlement to a new trial. As we stated in Wendel, supra at 476, “[o]ur Court has traditionally been strict on setting aside defaults once regularly entered” and such judgments have “generally been regarded as mandatory.” MCR 2.603 provides that default may be set aside within twenty-one days after entry of the default. The record indicates that Allstate had no knowledge of the suit until three months after the default judgment was entered. Consequently, Allstate’s only recourse toward setting aside the judgment was a motion under MCR 2.612, which requires extraordinary circumstances not in existence here. Therefore, the resulting prejudice suffered by Allstate is clear.
We hold that plaintiff’s failure to comply with the notice-of-suit provision under either policy prejudiced Allstate, thus releasing Allstate from any obligation of coverage. We therefore reverse the decision of the Court of Appeals and remand the case to the trial court for entry of final judgment in favor of defendant-appellant Allstate.
Mallett, C.J., and Cavanagh, Boyle, Weaver, Kelly, and Taylor, JJ., concurred with Brickley, J.
The U9002’s notice provision provided, in pertinent part:
If claim is made or suit is brought against the Insured, the Insured shall immediately forward to Allstate every demand, notice, summons or other process received by him or his representative.
The AU421 policy provided:
In the event of a loss where an insured person may be responsible for bodily injury or property damage, you must do the following things:
b) Send us any legal papers relating to the accident.
Allstate’s handwritten note provided as follows:
Dear Mr. Koski —
In reference to the claim you reported last week regarding your daughter, please be advised that your homeowners policy does not extend coverage under the medical payments or liability portions to the insured, or any relative residing in the household.
Therefore, there is no coverage for this loss.
On January 3, 1991, the default judgment was amended to $167,469.76 to reflect an increased policy liability limit.
Our decision on the notice-of-suit-provision issue makes it unnecessary for us to consider Allstate’s second point of error relating to whether plaintiff received sufficient notice of the AU421’s household exclusion.
As we recently held, “the duty to defend is broader than the duty to indemnify,” and an insurer who wrongfully refuses to defend its insured becomes liable on any judgment against the insured “despite theories of liability asserted against any insured which are not covered under the policy." American Bumper & Mfg Co v Hartford Fire Ins Co, 452 Mich 440, 450-451; 550 NW2d 475 (1996). An insurer’s duty to defend, then, includes the duty to investigate and analyze whether the third party’s claim against the insured should be covered. In the instant case, Allstate’s duty to defend was completely undercut by plaintiff’s failure to provide any notice of Nikki’s suit against him.
In Weller, the insurer received a full report on an accident involving its insured and learned that its insured was being sued, but nevertheless decided to wait until it heard from its insured. This Court held that because the insurer had knowledge of the suit, it was not prejudiced by the failure of the insured to forward the suit papers. In Wendel, an insurer performed an investigation of a claim and made a settleiuen' offer to the plaintiff. Later, the plaintiff sued the defendant, who forwarded the suit papers to her insurance agent. The agent did not forward the papers to the insurer for several additional months, and a default judgment was entered against the defendant while the suit papers were being held by the agent. This Court found that the insurer suffered no prejudice.
We emphasize that an insurer who knows of legal proceedings instituted against its insured, but nevertheless chooses to rest on its claim of noncoverage, faces a heavy burden in demonstrating prejudice from its insured’s failure to comply with a notice provision.
This fact distinguishes this case from our decision in Wendel, supra, where this Court found that an insurer had not been materially prejudiced even though it did not receive notice of the underlying suit until after a default judgment had entered against the insured. In the context of the law as it existed at that time, the delay in notice was not materially prejudicial because there was little impediment to setting the default judgment aside. The' insured had forwarded the suit papers to the insurer’s agent within three months of entry of the default judgment. Unlike the twenty-one-day limit currently provided by MCR 2.603(2)(b), the court rule in effect at the time Wendel was decided, GCR 1963, 520.4, provided a four-month limit for setting aside a default. This Court’s opinion in Wendel turned on (1) the notion that trial courts generally were liberal in setting aside default judgments when a motion to do so was made within four months of entry of the judgment, and (2) the insurance company had received notice in time to move for relief within the four-month limit. Hence, in Wendel, unlike the instant case, the delay did not prejudice the insurer because the notice was given in time to have the default judgment set aside with relative ease. | [
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Per CURIAM.
At issue in this case is whether defendants violated MCL 224.20b by presenting and securing voter approval of a road millage proposal and, if so, what remedy is available. We affirm the Court of Appeals decision that the millage proposal in this case violated the allocation provisions of MCL 224.20b, but reverse the Court of Appeals order remanding the case because, under the facts presented, plaintiff is not entitled to any of the remedies it seeks.
i
The statute at issue in this case is MCL 224.20b,* which permits county boards of commissioners to propose tax levies, also known as millage proposals, for roads and bridges, but requires the proceeds of such a levy to be distributed to cities and villages for their roads, as well as to the county, according to a specific formula unless the governing boards of the cities and villages agree with the county to a different distribution. The statute also expressly states that proposals must conform to this distribution requirement and unless they do, they are not properly before the voters.
Despite this fund distribution requirement, the voters of Van Burén County in 2003 were presented with and approved a road millage that had no provision for distributing funds to cities and villages. It simply gave one mill for five years to the Van Burén County Road Commission to repair and reconstruct county roads,* with no mention of city or village roads. No city or village objected even though the statutory requirements in MCL 224.20b had not been followed. Moreover, going back to 1978, six other millages with the same flaw — no distribution provision — had been approved in six separate elections, and the funds derived had also been used exclusively by the Van Burén County Road Commission for the purpose of maintaining and repairing primary county roads and local county roads. Because plaintiff city of South Haven had no county roads within its municipal limits, it did not receive any of the funds from the six millages for road building and repair.
However, in 2004, South Haven for the first time objected to the county’s failure to allocate to it any of the millage proceeds. It brought a five-count complaint, alleging that the defendants violated MCL 224.20b and seeking a constructive trust, restitution of plaintiffs portion of the tax levies plus interest and costs, an order of mandamus requiring defendants to remit the money owed to plaintiff, and a declaratory judgment that plaintiff is entitled to its portion of the tax levies in the future.
Both the city and the road commission moved for summary disposition. The trial court first found that the Michigan Tax Tribunal had exclusive jurisdiction, and therefore granted the road commission’s motion under MCR 2.116(C)(4). It nonetheless went on to also find that the road commission was not a proper party because it owed no duty to the city, and that the allocation formula in MCL 224.20b(2) was inapplicable as a matter of law because the ballot language clearly indicated that only the county would get the funds.
The Court of Appeals reversed much of this decision. First, it held that jurisdiction was proper in the circuit court, not the Tax Tribunal, because the case did not involve assessment, valuation, rates, special assessments, allocation, equalization, a refund, or a redetermination of a tax. Second, the Court agreed that the road commission was not a proper party because it played no role in the alleged misallocation of the funds; its role was merely ministerial and thus summary disposition in its favor was proper. Finally, the panel concluded that, contrary to the county’s argument that the specificity of the millage proposal eliminated the need to allocate funds to cities and villages, the requirement of subsection 2 to distribute funds to cities and villages could only be avoided if an agreement was formed between the cities and villages and the county road commission in accordance with MCL 224.20b(2). Because there was no such agreement, the Court of Appeals concluded that the trial court had erred and funds did need to be allocated as provided in the statute. However, the panel stopped short of ordering restitution, noting that “using revenues approved by the voters for a specific purpose for some other purpose would be unlawful.” Having pointed out the conundrum, the Court of Appeals then remanded to the trial court “for further proceedings consistent with this opinion.”
This Court granted leave to appeal, limited to consideration of whether the city was entitled to any of the tax proceeds. Specifically, we ordered the parties to address whether the ballot proposal violated the statute and, if so, what remedy might be available, and whether the parties by their conduct “otherwise agreed” to a different allocation than that required by statute.
ii
This case requires us to interpret the language set forth in MCL 224.20b. This Court reviews de novo questions of statutory construction. Unambiguous statutes are enforced as written.
hi
MCL 224.20b establishes a mandatory system for the collection and allocation of taxes levied under that statute, unless otherwise agreed to by the relevant cities and villages. MCL 224.20b(1) states:
Notwithstanding any other provision of this act, the board of commissioners of any county by proper resolution may submit to the electorate of the county at any general or special election the question of a tax levy for highway, road and street purposes or for 1 or more specific highway, road or street purposes, including but not limited to bridges, as may be specified by the board.
This subsection permits the county board to submit for voter approval a millage “for highway, road and street purposes or for 1 or more specific highway, road or street purposes . . . .” MCL 224.20b(2) states:
Unless otherwise agreed by the governing bodies of the cities and villages and the board of county road commissioners the revenues derived from the tax levy authorized by this section shall be allocated and distributed by the county treasurer as follows ....
The statute then specifies a formula for the allocation of funds collected. MCL 224.20b(2) indicates that all funds collected under the statute “shall be allocated” according to the delineated formula, “[ujnless otherwise agreed by the governing bodies of the cities and villages ....” (Emphasis added.) The term “shall” indicates that the formula for allocating funds is mandatory. Finally, MCL 224.20b(4) emphasizes and underscores the mandatory nature of the allocation formula established in subsection 2:
[A] board of county commissioners shall not submit to the electorate of the county the question of a tax levy for any highway, road or street purpose, including but not limited to bridges, nor submit the question of borrowing money for any such purpose, to be voted upon at any election held on or after September 1, 1971 unless the revenues or proceeds are allocated and distributed in the same manner as the revenues derived from a tax levy authorized by this section. [Emphasis added.]
Thus, the statute requires that taxes collected under its auspices be allocated in conformity with the formula established in MCL 224.20b(2), unless the cities and villages reach an agreement with the board of county road commissioners to allocate the funds in a different manner.
Because defendants never allocated the tax levies received in accordance with the requirements of MCL 224.20b, and no agreement existed between the cities and villages and the board of county road commissioners, defendants violated MCL 224.20b.
Defendants argue that only “general” road millages are subject to allocation and distribution in accordance with the statute. However, MCL 224.20b(1) applies to millages “for highway, road and street purposes on for 1 or more specific highway, road or street purposes .. ..” (Emphasis added.) The statute’s references to highway, roads, and street purposes indicate that tax levies for “general” or for “specific” highway, road, and street purposes are subject to the requirements of MCL 224.20b. Nothing in the remainder of the statute alters these requirements: subsection 3 says that the proceeds must be used “exclusively for highway, road and street purposes” and subsection 4 reiterates and emphasizes that millage proposals must conform to the allocation formula set forth in subsection 2, without distinguishing between general and specific projects.
Defendants also argue that the term “any” in the phrase “for any highway, road or street purpose” in MCL 224.20b (4) indicates that only tax levies for “general” purposes must follow the statutory requirements. “Any” is defined as “every; all.” Random House Web ster’s College Dictionary (1997). Contrary to defendants’ argument, the term “any” indicates that every tax millage —whether “general” or “specific” — established under MCL 224.20b must comply with the allocation formula established in that statute.
Accordingly, the language of the statute clearly states that counties must either allocate proceeds in accordance with the formula or get the local governing bodies to agree to a different distribution. “ ‘If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written.’ ” The phrasing of the ballot proposal is irrelevant to these statutory responsibilities and cannot be a vehicle for avoiding their application.
IV
Although defendants violated their statutory duty under MCL 224.20b, at issue in this case is whether the city is entitled to any relief for these statutory violations. In this case, we conclude that the city is not entitled to restitution. “It is well settled that when a statute provides a remedy, a court should enforce the legislative remedy rather than one the court prefers.” To determine whether a plaintiff may bring a cause of action for a specific remedy, this Court “must determine whether [the Legislature] intended to create such a cause of action.” “ ‘ “Where a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.” ’ ” Accordingly, this Court has previously declined to establish a remedy that the Legislature has not provided.
In this case, MCL 224.20b does not provide a remedy of restitution if a board of county commissioners violates its statutory obligations. The Legislature’s decision not to specify such a remedy suggests that the Legislature did not intend to allow plaintiff to seek restitution for a violation of MCL 224.20b. This conclusion is buttressed by MCL 224.30, which states:
(1) If an audit or investigation conducted under this act discloses statutory violations on the part of an officer, employee, or board of a county road commission, a copy of the report shall be filed with the attorney general who shall review the report and cause to be instituted a proceeding against the officer, employee, or board as the attorney general deems necessary.
(3) The attorney general or the prosecuting attorney shall institute civil action in a court of competent jurisdiction for the recovery of public moneys disclosed by an examination to have been illegally expended or collected and not accounted for and for the recovery of public property disclosed to have been converted and misappropriated.
MCL 224.30 permits the Attorney General to file suit for a statutory violation of the county road law, and to seek “recovery of public property” that has been “misappropriated.” Because the Legislature specifically authorized the Attorney General to bring a civil suit to recover “misappropriated” funds, but did not authorize plaintiff to bring a similar suit, MCL 224.30 indicates that the Legislature did not intend to allow plaintiff to pursue the remedy of restitution. “ ‘ “Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute” Rather, plaintiffs statutorily provided remedy is through the Attorney General.
Because nothing in the statute indicates any legislative intent to allow plaintiff to pursue a claim for restitution of misallocated funds, and the Legislature explicitly granted such authority to the Attorney General alone, plaintiff cannot seek restitution of the misallocated funds in this case. We decline to permit plaintiff to pursue a remedy that the Legislature did not intend to allow because “[t]o do otherwise would be an exercise of will rather than judgment.”
However, although plaintiff may not seek restitution, this Court has permitted a plaintiff to seek injunctive relief when a government official does not conform to his or her statutory duty to distribute funds in a specified manner. Thus, two possible judicial remedies are available in a case where voters approve a ballot proposal that improperly allocates proceeds: to enjoin collection of the improper millage or to refund collected taxes to the taxpayers. These remedies would be unexceptional exercises of the power of the judiciary to give injunctive relief to prevent illegal acts.
Plaintiff seeks a third possible remedy: a writ of mandamus compelling defendants to disgorge the funds and allocate them in accordance with the statutory formula. This we decline to do because the city is not entitled to receive any of the funds. Under the General Property Tax Act, MCL 211.1 et seq., when a millage proposal is submitted to the electors for approval, the ballot must “fully disclose each local unit of government to which the revenue from that millage will be disbursed,” and must state “[a] clear statement of the purpose for the millage.” This statute does not expressly preclude using for one purpose tax revenue specifically approved for a different purpose. However, a fundamental rule of statutory construction is that the Legislature did not intend to do a useless thing. If funds that voters approved for the purpose stated on the ballot could be redirected to another purpose without seeking new approval, there would be no reason for including the purpose on the ballot. Indeed, voters could be lulled into voting for a millage for a popular purpose, only to have the funds then used for something they may well have never approved. This is contrary to the General Property Tax Act. The voters of Van Burén County did not approve the allocation of funds for city roads, and perhaps would not have approved a proposal including that purpose. While no court has warrant to violate MCL 224.20b by ordering distribu tion contrary to that statute, it likewise may not violate MCL 211.24f by ordering these funds to be used for a purpose not approved by the voters. Accordingly, South Haven is not entitled to receive any of the proceeds of the millage.
In addition to seeking restitution, plaintiff has also sought a declaratory judgment that plaintiff is entitled to proceeds from future millages in accordance with MCL 224.20b. However, no “actual controversy” exists in this case that would permit a declaratory judgment in plaintiffs favor. Because plaintiff has not shown that a millage in violation of MCL 224.20b has currently been proposed by defendants, any injury to plaintiff from potential future millages is conjectural or hypothetical, and not actual or imminent. Hence, plaintiff does not have standing to bring a declaratory judgment claim.
v
In conclusion, the ballot proposal approved by the voters violated MCL 224.20b because it did not conform to the statutory requirement to allocate funds according to the specified formula and no agreement existed between the local governing bodies to allocate differently. However, restitution is not available to the city because the Legislature has not permitted plaintiff to bring a claim for restitution and this Court cannot use its judicial power to provide a remedy that would itself violate the law. Moreover, because plaintiff is not threatened by an “actual or imminent” injury, plaintiff does not have standing to bring a claim for a declaratory judgment regarding future ballot proposals. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals.
TAYLOR, C.J., and CORRIGAN, MARKMAN, and YOUNG, JJ., concurred.
MCL 224.20b reads:
(1) Notwithstanding any other provision of this act, the board of commissioners of any county by proper resolution may submit to the electorate of the county at any general or special election the question of a tax levy for highway, road and street purposes or for 1 or more specific highway, road or street purposes, including but not limited to bridges, as may be specified by the board.
(2) Unless otherwise agreed by the governing bodies of the cities and villages and the board of county road commissioners the revenues derived from the tax levy authorized by this section shall be allocated and distributed by the county treasurer as follows:
(a) To the county road fund:
(i) A percentage of the total revenues equal to the proportion that the state equalized valuation of the unincorporated area of the county bears to the total state equalized value of the county.
(ii) A percentage of the remainder of the revenues equal to the proportion that the county primary road mileage within cities and villages bears to the total of the city and village major street mileage in the county plus the county primary road mileage within cities and villages in the county. The mileages to be used are the most recent mileages as certified by the state highway commission.
(b) The remaining revenues shall be distributed to the cities and villages in the proportion that the state equalized valuation of each bears to the total state equalized valuation of the incorporated areas of the county.
(3) The revenues allocated to the cities and villages shall be expended exclusively for highway, road and street purposes. The revenues allocated to the county road fund shall be expended by the board of county road commissioners exclusively for highway, road and street purposes.
(4) Notwithstanding the provisions of section 22 of this chapter, section 7 of Act No. 156 of the Public Acts of 1851, as amended, being section 46.7 of the Compiled Laws of 1948, or section 1 of Act No. 28 of the Public Acts of 1911, being section 141.71 of the Compiled Laws of 1948, a board of county commissioners shall not submit to the electorate of the county the question of a tax levy for any highway, road or street purpose, including but not limited to bridges, nor submit the question of borrowing money for any such purpose, to be voted upon at any election held on or after September 1, 1971 unless the revenues or proceeds are allocated and distributed in the same manner as the revenues derived from a tax levy authorized by this section.
The millage proposal read:
Shall there he an additional one (1) mill levy in the amount of one (1) dollar per thousand dollars of the state equalized valuation for the property in Van Burén County, for a period of five (5) years, to be used by the Van Burén County Road Commission specifically for the purpose of repair and reconstruction of primary county roads and local county roads of Van Burén County?
South Haven v Van Buren Co Bd of Comm’rs, 270 Mich App 233; 715 NW2d 81 (2006).
Id. at 242-243.
Id. at 245 n 4.
Id. at 246-247.
477 Mich 958 (2006).
Fluor Enterprises, Inc v Dep’t of Treasury, 477 Mich 170, 174; 730 NW2d 722 (2007).
Id.
MCL 224.20b(2) states that funds must be allocated:
(a) To the county road fund:
(i) A percentage of the total revenues equal to the proportion that the state equalized valuation of the unincorporated area of the county bears to the total state equalized value of the county.
(ii) A percentage of the remainder of the revenues equal to the proportion that the county primary road mileage within cities and villages bears to the total of the city and village major street mileage in the county plus the county primary road mileage within cities and villages in the county. The mileages to be used are the most recent mileages as certified by the state highway commission.
(b) The remaining revenues shall be distributed to the cities and villages in the proportion that the state equalized valuation of each bears to the total state equalized valuation of the incorporated areas of the county.
Parkwood Ltd Dividend Housing Ass’n v State Housing Dev Auth, 468 Mich 763, 772; 664 NW2d 185 (2003) (citation omitted). Justice Kelly criticizes this opinion for “refus[ing]” to enforce the statute. Post at 538. However, as explained infra, MCL 224.20b does not permit plaintiff to pursue the remedies sought. Consequently, this Court is not “refusing” to enforce the statute; rather, this Court is enforcing the Legislature’s decision to limit the remedies available for a violation of MCL 224.20b.
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 66 n 5; 642 NW2d 663 (2002).
Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich 479, 496; 697 NW2d 871 (2005).
McClements v Ford Motor Co, 473 Mich 373, 382; 702 NW2d 166 (2005), quoting Monroe Beverage Co, Inc v Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997), quoting Lafayette Transfer & Storage Co v Pub Utilities Comm, 287 Mich 488, 491; 283 NW 659 (1939).
See, e.g., Office Planning Group, supra; Jones v Dep’t of Corrections, 468 Mich 646; 664 NW2d 717 (2003); People v Hawkins, 468 Mich 488; 668 NW2d 602 (2003).
People v Anstey, 476 Mich 436, 444; 719 NW2d 579 (2006), quoting People v Monaco, 474 Mich 48, 58; 710 NW2d 46 (2006), quoting Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993). Moreover, other provisions of the county road law allow a plaintiff to bring suit for violations of specific statutes. See MCL 224.21(3) (specifying how a private party may bring a suit when a county violates its statutory duties under MCL 224.21[2]); MCL 224.18(13) to (19) (specifying how suit may be brought and what relief is available for a violation of MCL 224.18[12]). These statutes further suggest that the Legislature would have specified that a plaintiff may seek restitution for violations of MCL 224.20b if the Legislature had intended such a result.
Justice Kelly contends that MCL 224.30 is “inapplicable” because “no audit or investigation revealed any statutory violations,” and hence “there was no need for the Attorney General to institute proceedings under MCL 224.30.” Post at 542. However, Justice Kelly ignores the fact that by granting only the Attorney General the power to seek restitution of a “misappropriation” of funds under the county road law, the Legislature indicated that plaintiff cannot pursue the same remedy. The fact that previous audits may have overlooked any statutory violation is wholly irrelevant. Justice Kelly would also find that the remedy available to plaintiff is “inadequate.” Post at 542. However, the adequacy of a specified remedy is a judgment for the Legislature, not for this Court.
People v Stevens (After Remand), 460 Mich 626, 645; 597 NW2d 53 (1999) (emphasis in original).
See Thomson v Dearborn, 347 Mich 365; 79 NW2d 841 (1956) (permitting a plaintiff to seek an injunction against the misappropriation of funds); see also City of Jackson v Comm’r of Revenue, 316 Mich 694, 719; 26 NW2d 569 (1947) (a provision specifying that the distribution of levied funds among units of local government was “self-executing,” and therefore could be enforced by mandamus).
See Const 1963, art 6, §§ 1, 4, and 13. Ins this case, however, the millage has already been collected and the taxpayers are not seeking a refund, so neither of these remedies is appropriate.
MCL 211.24f(1) and (2)(d).
Girard v Wagenmaker, 437 Mich 231, 244; 470 NW2d 372 (1991).
See also Maas v City of Mountain Home, 338 Ark 202; 992 SW2d 105 (1999) (Where state constitution provided that tax monies levied for one purpose cannot be used for any other purpose, voters were entitled to rely on the ballot title and the levying ordinance that specified an exclusive purpose; the city’s unilateral diverting of funds for another use was an illegal exaction.); Johnstone v Thompson, 280 Ga 611; 631 SE2d 650 (2006) (Where statute required a special purpose, tax could only be used exclusively for the specified purpose, and any other use was prohibited.); Denham Springs Econ Dev Dist v All Taxpayers, 894 So 2d 325, 335 (La, 2005) (“The act of presenting a proposition to the voters and the voters’ acceptance of same constitutes a covenant which should be respected and upheld.”); Ouachita Parish School Bd v Ouachita Parish Supervisors Ass’n, 362 So 2d 1138, 1143 (La App, 1978) (Where statute required the purpose of the tax to be stated in the ballot proposal, proceeds could only be expended for the stated purpose.).
The case cited by the partial dissent, Advisory Opinion on Constitutionality of 1986 PA 281, 430 Mich 93; 422 NW2d 186 (1988), which allows tax increment revenues to be used for purposes other than those approved by voters, does not control here. This Court expressly limited the holding in that case to the narrow issue it presented. “The particular facts of a future litigation case, or questions premised upon other constitutional provisions or questions of statutory construction not presented in the request for advisory opinion, may present different problems that are not addressed here.” Id. at 99.
Moreover, Advisory Opinion is distinguishable from the instant case. Advisory Opinion addressed solely whether Const 1963, art 9, § 6 required that funds be spent in accordance with the underlying purpose of the applicable levy, and limited its holding to the conclusion that under Const 1963, art 9, § 6, “the Legislature retains the power to allocate tax revenues” because “[Const 1963,] art 9, § 6 does not address the question of ‘purpose’; it places a limitation on the tax rate, not on tax revenues or their use.” Id. at 111-112 (emphasis in original). Contrary to the constitutional provision at issue in Advisory Opinion, the statutory scheme at issue in this case indicates that funds derived from levies must be used for the purposes stated in the ballot. Thus, Advisory Opinion is distinguishable from the instant case.
Justice Kelly argues that this Court may order the distribution of taxes contrary to the express purpose in a ballot measure, because “regardless of the language in the proposals, the proposals themselves were illegal.” Post at 539. However, Justice Kelly overlooks the clear import of MCL 211.24f, which indicates that taxes levied pursuant to a millage proposal may not be spent contrary to the express will of the voters. Although Justice Kelly claims this Court is “sanction[ing]” a violation of MCL 224.20b, post at 539, this Court is merely recognizing that the only remedy available to plaintiff is through the Attorney General. Contrary to her argument, mandamus is not available because that remedy would require a violation of MCL 211.24f.
MCR 2.605(A)(1) provides: “In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted.”
Associated Builders & Contractors v Dep’t of Consumer & Industry Services Director, 472 Mich 117, 126; 693 NW2d 374 (2005), quoting Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 739; 629 NW2d 900 (2001).
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 628; 684 NW2d 800 (2004).
Thus, bescause plaintiff does not seek an available remedy, nothing remains to be litigated on remand. | [
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Reported at 478 Mich 64.
Cavanagh and Kelly, JJ. We would grant rehearing. | [
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CORRIGAN, J.
This 1995 murder case has a long history in the Michigan and federal courts. Following the affirmance of defendant’s convictions in our state courts, the United States District Court for the Eastern District of Michigan, on habeas corpus review, ordered defendant’s release unless he was given a new trial in which his confession would be excluded from evidence. The district court ordered this result because of retained counsel’s deficient performance, not because of any police misconduct.
During pretrial hearings, the trial court also suppressed the testimony of two witnesses — street sweepers whose identities were “fruits” of defendant’s confession — unless the prosecution could show that it discovered the street sweepers’ identities from an independent source. Following the prosecution’s interlocutory appeal, the Court of Appeals agreed that the trial court should conduct an “inevitable discovery” hearing.
We granted the prosecution’s application for leave to file an interlocutory appeal to consider the proper scope of the exclusionary rule as it applies to the testimony of the street sweepers. We reverse the Court of Appeals expansive holding that the exclusionary rule applies to the testimony of the street sweepers. Because defendant’s confession did not result from police misconduct, the purpose of the exclusionary rule is in no way served by excluding the street sweepers’ testimony. Further, the degree of attenuation between the violation of defendant’s Sixth Amendment rights and the street sweepers’ testimony dissipated any taint.
We also vacate the Court of Appeals endorsement of the federal district court’s errant legal analysis in holding that defendant’s confession must be excluded. The district court mistakenly applied the test from United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984), rather than the test from Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), in holding that defendant’s Sixth Amendment rights had been violated. Nonetheless, despite the federal district court’s faulty analysis, we acknowledge the binding force of the district court’s ruling excluding defendant’s confession. We remand this case for retrial at which the street sweepers’ testimony may be admitted.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Two victims were robbed and fatally shot in one of the victim’s homes in Grand Blanc, Michigan. Kenneth Haywood told the police that he drove defendant and defendant’s accomplice, Idell Cleveland, to the home on the night of the murders and waited in the car while defendant and Cleveland entered the home. Haywood heard Cleveland say, “Get on the floor” and then heard two gunshots. Haywood fled, leaving defendant and Cleveland in the house without transportation from the scene.
After interrogating Haywood, the police searched defendant’s home and obtained an arrest warrant. Defendant’s mother retained an attorney for him. Defendant told that attorney that, although he had been present when Cleveland robbed and murdered the victims, he did not know that Cleveland intended to rob the victims and he had not been involved in the murders. Defendant told counsel that he wanted to talk to the police about his noninvolvement in the crimes. Relying on defendant’s assertions of innocence, defense counsel advised defendant that one option would be to talk to the police and tell the truth. Counsel then arranged defendant’s surrender and accompanied him to the station, where defendant was arrested and later arraigned. Although the prosecutor told defendant and his counsel that he would not plea bargain or make any “deals,” defendant nonetheless insisted on talking to the police. Defense counsel also advised defendant that talking to the police might assist in efforts to negotiate a plea bargain. Defense counsel was present when the police furnished Miranda warnings and when defendant waived those protections. Defense counsel then left the police station before defendant was interrogated because he assumed that he could not be present during questioning.
During the police interrogation, defendant, contrary to what he told defense counsel, admitted that he knew Cleveland had been armed and had intended to rob the victims. He also admitted that Cleveland paid him with two $50 bills after the murders. He told the police that two street sweepers gave him a ride home after the murders and that he asked them to change a $50 bill. The police later located the street sweepers, who testified that defendant approached them for a ride at a gas station and asked if they had change for a $50 bill.
Followingi his 1996 jury trial, defendant was convicted of two counts of felony-murder, MCL 750.316; one count of armed robbery, MCL 750.529; and two counts of possession of a firearm during the commission of a felony, MCL 750.227b. The Court of Appeals initially affirmed defendant’s murder and felony-firearm convictions, but vacated his armed robbery conviction on double jeopardy grounds. People v Frazier, unpublished opinion of the Court of Appeals, issued February 27, 1998 (Docket No. 193891). The Court of Appeals then granted rehearing and again vacated defendant’s armed robbery conviction on double jeopardy grounds, but remanded “for a Ginther hearing on the issue whether defendant was denied the effective assistance of counsel by trial counsel’s advice that he make statements to the police about his role in the crime.” People v Frazier (On Rehearing), unpublished opinion per curiam of the Court of Appeals, issued August 7, 1998 (Docket No. 193891), slip op at 2. On remand, the trial court concluded after a Ginther hearing that counsel had not been ineffective. The Court of Appeals affirmed, People v Frazier (After Remand), unpublished opinion per curiam of the Court of Appeals, issued April 21, 2000 (Docket No. 193891), and this Court denied leave to appeal, 464 Mich 851 (2001).
The United States District Court for the Eastern District of Michigan conditionally granted defendant’s petition for a writ of habeas corpus on the ground that counsel abandoned defendant during the police interrogation in violation of defendant’s Sixth Amendment right to counsel under Cronic, supra. Frazier v Berghuis, unpublished opinion.of the United States District Court for the Eastern District of Michigan, issued August 6, 2003 (Docket No. 02-CV-71741DT). The federal district court ruled that counsel’s absence during a critical stage (the interrogation) “tainted the whole trial process, as evidenced by the use of Petitioner’s statements at trial.” Id., slip op at 7. The court held that “the only appropriate remedy is to not allow use of the tainted statements, should the State decide to initiate a new trial in this matter.” Id. Thus, the district court ruled that defendant’s confession would be inadmissible on retrial. The prosecution did not further appeal this decision.
The case was then set for retrial in the Genesee Circuit Court. Before trial, the trial court excluded defendant’s custodial statements for all purposes. The court, citing Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963), also held that the exclusionary rule applied to any derivative evidence from those statements, including the testimony of the street sweepers. The court stated that “knowledge gained by the government’s own wrong cannot be used by it in the way proposed.” The court also held, however, that the prosecution could call the street sweepers to testify at trial if the prosecution could establish that it in fact discovered the identity of these witnesses from a source independent of defendant’s inadmissible statements. The prosecution appealed.
A split Court of Appeals panel affirmed in part and reversed in part. People v Frazier, 270 Mich App 172; 715 NW2d 341 (2006). The majority first agreed with the federal district court that the prosecution could not use defendant’s custodial statements in its case-in-chief because counsel had abandoned defendant at a critical stage of the proceedings (the police interrogation). But the panel, citing Michigan v Harvey, 494 US 344; 110 S Ct 1176; 108 L Ed 2d 293 (1990), unanimously reversed the trial court’s order prohibiting the use of defendant’s custodial statements for impeachment purposes.
The majority next held that the exclusionary rule and the “inevitable discovery” doctrine applied to the street sweepers’ testimony. The majority explained that the United States Supreme Court has applied the exclusionary rule to Sixth Amendment violations, and that the street sweepers’ testimony is “fruit of the poisonous tree” that must he excluded unless the prosecution can make an affirmative showing that the street sweepers’ identities would have inevitably been discovered through alternative means. The majority remanded to the trial court for application of the inevitable discovery doctrine.
Judge TALBOT dissented from the majority’s holding that the exclusionary rule and the inevitable discovery doctrine apply to the street sweepers’ testimony. He opined that the exclusionary rule does not apply in the absence of police misconduct, and that the majority extended the doctrine by applying it to the testimony of witnesses named in defendant’s statement to police. Further, Judge TALBOT opined that the police almost certainly would have discovered the identities of the street sweepers if defense counsel had been present at the interrogation or even if defendant had not made any statement to the police.
This Court granted the prosecution’s application for leave to appeal and denied defendant’s application for leave to cross-appeal. People v Frazier, 477 Mich 851; 720 NW2d 747 (2006). We directed the parties to address the following issues:
(1) whether the exclusionary rule applies to fruits of a confession extracted not by police misconduct, but by the abandonment of retained counsel during the interrogation, a critical stage of proceedings, in violation of United States v Cronic, 466 US 648 (1984); and, if so, (2) whether the inevitable discovery doctrine of Nix v Williams, 467 US 431 (1984), applies in such circumstances; and, if so, (3) whether the exclusionary rule should be applied narrowly as suggested in United States v Ceccolini, 435 US 268 (1978), when the information derived from the confession is the identity of witnesses. [477 Mich 851.]
II. STANDARD OF REVIEW
A lower court’s application of constitutional standards is not entitled to the same degree of deference as are factual findings. People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005). Application of the exclusionary rule to a constitutional violation is a question of law that is reviewed de novo. Id.
III. THE CRONIC/STRICKLAND STANDARDS
The prosecution initially urges us to ignore the federal district court’s decision and hold that the exclu sionary rule does not apply to bar defendant’s confession from evidence. We decline this invitation because the prosecution has forfeited this argument. The prosecution never challenged the adverse district court decision by appealing to the United States Court of Appeals for the Sixth Circuit. Nor did the prosecution argue in the trial court or in our Court of Appeals that the federal district court decision should be disregarded. “This Court disfavors consideration of unpreserved claims of error.” People v Carines, 460 Mich 750, 761; 597 NW2d 130 (1999). Moreover, the prosecution conceded in its application for leave to appeal in this Court that it is “bound by the unchallenged federal court determination.” (Prosecution’s Application for Leave to Appeal, p v.) We decline to consider the prosecution’s argument urging us to disregard the federal district court decision. Thus, the present issue is not the admissibility of defendant’s confession, but the admissibility of the street sweepers’ testimony.
In any case,
[h]abeas corpus decisions within their scope generally are binding on the parties, on other courts, and are conclusive. ... A judgment in habeas corpus discharging the prisoner, after a final determination of the ultimate facts and of the law, is conclusive of the right to remain at liberty. Therefore, the release by federal courts of one charged in state courts is binding on the latter, and there can be no further prosecution. [4 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 147:117, p 793.]
See also Collins v Loisel, 262 US 426, 430; 43 S Ct 618; 67 L Ed 1062 (1923) (holding that a habeas corpus decision operates as res judicata on the issues of law and fact necessarily involved in the habeas corpus proceedings); Kurtz v State, 22 Fla 36, 45 (1886) (“[I]n those States where a judgment of a court in a habeas corpus proceeding discharging or remanding to custody a pris oner is final, and a writ of error is allowed thereon,... the principle of res adjudicata [seems to be] applicable . . . .”). In cases where the federal court conditionally grants a writ of habeas corpus, the federal court retains jurisdiction to ensure that the state court complies with the terms of the conditional writ. Gentry v Deuth, 456 F3d 687, 692 (CA 6, 2006). A state’s failure to cure the error identified in the conditional habeas court order justifies the release of the petitioner. Id. Moreover, we decline to contradict the federal court decision because doing so would create unnecessary confusion and uncertainty. Therefore, we accept as binding the district court’s ruling that defendant’s confession must be excluded on retrial.
Nonetheless, because our Court of Appeals approved of the federal district court’s legal analysis in a published opinion, we must discuss the correctness of this analysis. We agree with the prosecution that the cor rect Sixth Amendment analysis is the ineffective assistance of counsel test of Strickland, supra, rather than the presumed prejudice test of Cronic, supra.
Most claims of ineffective assistance of counsel are analyzed under the test developed in Strickland, supra. Under this test, counsel is presumed effective, and the defendant has the burden to show both that counsel’s performance fell below objective standards of reasonableness, and that it is reasonably probable that the results of the proceeding would have been different had it not been for counsel’s error. Strickland, supra at 687, 690, 694. But in Cronic, supra at 659-662, the United States Supreme Court identified three rare situations in which the attorney’s performance is so deficient that prejudice is presumed. One of these situations involves the complete denial of counsel, such as where the accused is denied counsel at a “critical stage” of the proceedings. Id. at 659. “For purposes of distinguishing between the rule of Strickland and that of Cronic, [the] difference is not of degree but of kind.” Bell v Cone, 535 US 685, 697; 122 S Ct 1843; 152 L Ed 2d 914 (2002).
This case falls within the ambit of Strickland because none of the three Cronic situations is present. In their first meeting, defendant misled counsel. He said that he was present at the crime scene, but did not know that Cleveland intended to rob the victims. Defendant insisted on waiving his right to counsel and maintaining his innocence in a statement to the police in order to obtain a favorable plea bargain. Counsel advised defendant of the risks of talking to the police and even advised him not to talk to the police despite his claims of innocence. Counsel, however, relied on defendant’s assertions of innocence in advising defendant that he could talk to the police. Counsel’s advice was predicated on defendant’s false claim of innocence, and counsel cannot be faulted for advising defendant on the facts defendant had communicated to him. What defendant ultimately told the police and what he told defense counsel were two different things. If defendant had given counsel the same version of events that he fur1 nished the police, counsel would most likely have advised defendant differently.
The Cronic test applies when the attorney’s failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding. Bell, supra at 697. Because counsel consulted with defendant, gave him advice, and did nothing contrary to defendant’s wishes, counsel’s alleged failure was not complete. Defendant alleges only that counsel erred at a specific point of the proceeding by advising him that he could waive his right to counsel at the interrogation. Therefore, prejudice may not be presumed, and counsel’s performance should have been reviewed under the Strickland standard.
Our determination that Strickland rather than Cronic applies is supported by Roe v Flores-Ortega, 528 US 470; 120 S Ct 1029; 145 L Ed 2d 985 (2000). In Roe, supra, the United States Supreme Court analyzed counsel’s failure to file an appeal under the two-pronged test set forth in Strickland rather than the presumption of prejudice test set forth in Cronic. In doing so, it stated that the decision to waive the right to appeal, much like the decision to plead guilty and waive the right to a jury trial, belonged to the defendant. Id. at 485. The Court stated that when an attorney consults with his client about the consequences of his client’s decision, the attorney’s performance can be considered deficient under the first prong of Strickland only if the attorney fails to follow his client’s express instructions. Id. at 478.
The applicability of Strickland is even more apparent in the instant case than in Roe, supra. In this case, defendant’s attorney consulted with defendant and discussed the risks of talking to the police. As in Roe, the decision to talk to the police and, thus, to waive the right against compelled self-incrimination and the right to counsel’s presence during interrogation, belonged to defendant. Defendant insisted on talking with the police in order to obtain a favorable plea bargain. Thus, the 2000 Court of Appeals panel correctly applied the Strickland standard rather than the Cronic standard in affirming the trial court’s finding after a Ginther hearing that defense counsel had not been ineffective. The federal district court erred in holding that defendant was entitled to relief without determining whether defendant was prejudiced by counsel’s performance. Accordingly, we vacate the March 2006 published Court of Appeals opinion to the extent that it adopts or approves of the federal district court’s decision endorsing the Cronic standard. Because we are bound by the federal district court’s ruling on habeas review, we cannot disturb the erroneous ruling of the district court.
TV. APPLICABILITY OF THE EXCLUSIONARY RULE TO THE STREET SWEEPERS’ TESTIMONY
We next consider the Court of Appeals ruling that the exclusionary rule applies to the “fruit” of defendant’s confession — the testimony of the street sweepers. We conclude that the Court of Appeals erred in holding that the exclusionary rule applies.
The suppression of evidence should be used only as a last resort. Hudson v Michigan, _ US _; 126 S Ct 2159, 2163; 165 L Ed 2d 56, 64 (2006). “[T]he exclusionary rule is ‘a harsh remedy designed to sanction and deter police misconduct where it has resulted in a violation of constitutional rights....’” People v Anstey, 476 Mich 436, 447-448; 719 NW2d 579 (2006), quoting People v Hawkins, 468 Mich 488, 512-513; 668 NW2d 602 (2003) (emphasis deleted); see also Michigan v Tucker, 417 US 433, 446; 94 S Ct 2357; 41 L Ed 2d 182 (1974), quoting United States v Calandra, 414 US 338, 347; 94 S Ct 613; 38 L Ed 2d 561 (1974) (“[T]he exclusionary rule’s ‘prime purpose is to deter future unlawful police conduct....’”). “ ‘The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitu tional guaranty in the only effectively available way — by removing the incentive to disregard it.’ ” Id., quoting Elkins v United States, 364 US 206, 217; 80 S Ct 1437; 4 L Ed 2d 1669 (I960). The judicially created rule is not designed to act as a personal constitutional right of the aggrieved party. Calandra, supra at 348. “[T]he proper focus is on the deterrent effect on law enforce¡ment officers, if any.” People v Goldston, 470 Mich 523, 539; 682 NW2d 479 (2004).
“Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.” Calandra, supra at 348.
“The exclusionary rule has its limitations ... as a tool of judicial control.... [In] some contexts the rule is ineffective as a deterrent.... Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations.... [A] rigid and unthinking application of the ... rule ... may exact a high toll in human injury and frustration of efforts to prevent crime.” Terry v Ohio [392 US 1, 13-15; 88 S Ct 1868; 20 L Ed 2d 889 (1968)]. [People v Stevens (After Remand), 460 Mich 626, 636; 597 NW2d 53 (1999).]
“[Application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served,” Calandra, supra at 348, “that is, ‘where its deterrence benefits outweigh its “substantial social costs,” ’ ” Hudson, supra at 2163, quoting Pennsylvania Bd of Probation & Parole v Scott, 524 US 357, 363; 118 S Ct 2014; 141 L Ed 2d 344 (1998), quoting United States v Leon, 468 US 897, 907; 104 S Ct 3405; 82 L Ed 2d 677 (1984). “Because the exclusionary rule precludes consideration of reliable, probative evidence, it imposes significant costs: it undeniably detracts from the truthfinding process and allows many who would otherwise be incarcerated to escape the consequences of their actions.” Scott, supra at 364. The United States Supreme Court has “repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule.” Id. at 364-365. Because of the costs associated with applying the exclusionary rule, the Court has been cautious against expanding it. Hudson, supra at 2163. In determining whether exclusion is proper, a court must “ ‘evaluate the circumstances of [the] case in the light of the policy served by the exclusionary rule....’” Stevens, supra at 635, quoting Brown v Illinois, 422 US 590, 604; 95 S Ct 2254; 45 L Ed 2d 416 (1975).
It cannot be gainsaid that this case presents no police misconduct whatsoever. Excluding defendant’s confession because of attorney error does not fulfill the goal of the exclusionary rule by deterring the police from future misconduct. Goldston, supra at 538.
The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force. [Tucker, supra at 447.]
This Court has previously opined that application of the exclusionary rule is inappropriate in the absence of governmental misconduct. See, e.g., Goldston, supra at 538 (“[T]he goal of the exclusionary rule would not be furthered where police officers act in objectively reasonable good-faith reliance on a search warrant.”); People v Elston, 462 Mich 751, 764; 614 NW2d 595 (2000) (“Because defendant failed to allege or establish a specific discovery violation, or any other sort of prosecutorial misconduct, the trial court lacked a basis upon which to punish the prosecutor by suppressing otherwise admissible evidence.”). Moreover, application of the exclusionary rule in these circumstances further encroaches “ ‘upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.’ ” Calandra, supra at 351, quoting Alderman v United States, 394 US 165, 175; 89 S Ct 961; 22 L Ed 2d 176 (1969). Because the street sweepers’ identities were not obtained as a result of any police misconduct, the Court of Appeals erred in applying the exclusionary rule to their testimony.
We agree with Judge TALBOT that Tucker supports this conclusion. In Tucker, the defendant was interrogated before the United States Supreme Court had decided Miranda, supra, but the Miranda decision nonetheless applied because it had been decided before the defendant’s trial. During the interrogation, the police did not inform the defendant, as they were required to do after Miranda, that counsel would be appointed if the defendant could not afford one. Tucker, supra at 436. During questioning, the defendant named an alibi witness. Id. The witness, rather than confirming the defendant’s alibi, discredited his story. Id. at 436-437.
The Tucker Court held that the exclusionary rule did not apply to the witness’s testimony. Id. at 452. The Court explained that the police conduct was a departure from later-enacted “prophylactic standards” rather than actual misconduct, so the exclusion of the illegally obtained derivative evidence would not deter future misconduct. Id. at 446. The Court also emphasized that the evidence at issue was not a statement by the defendant, but was rather the testimony of a witness whom the police discovered as a result of the defendant’s statements, so that “the reliability of [the] testimony was subject to the normal testing process of an adversary trial.” Id. at 449.
The instant case offers even stronger grounds than Tucker against excluding the testimony of the witnesses. Both Tucker and defendant gave statements without counsel present and identified witnesses in their statements. But while Tucker was advised of only some of his rights before waiving his right to counsel, defendant was advised of all of his Miranda rights before waiving his right to counsel. Tucker did not have counsel present when he waived his right to counsel, while defendant did. There was no police misconduct in either case. In both cases, the confession was suppressed, but in Tucker, the witness identified during the confessions was permitted to testify. The same outcome should pertain here. Here, as in Tucker, no deterrent purpose would be served by barring the witnesses’ testimony. Moreover, the propriety of this outcome is reinforced here, as in Tucker, because witnesses were not subjected to custodial pressures, and would be subject to cross-examination.
Our holding is also supported by People v Kusowski, 403 Mich 653; 272 NW2d 503 (1978). In Kusowski, supra at 662, this Court, citing Ceccolini and Tucker, held that the exclusionary rule does not apply to third-party testimony discovered as a result of a Miranda violation. This Court explained that “the interest in preventing future police conduct which violates Miranda does not justify depriving the government of use of the evidence.” Kusowski, supra at 662.
Further, even if defendant’s confession had been obtained as a result of police misconduct, we hold that the exclusionary rule would not apply to the street sweepers’ testimony. Under the attenuation exception to the exclusionary rule, exclusion is improper when the connection between the illegality and the discovery of the challenged evidence has “ ‘become so attenuated as to dissipate the taint,’ ” Wong Sun, supra at 487, quoting Nardone v United States, 308 US 338, 341; 60 S Ct 266; 84 L Ed 307 (1939). Attenuation can occur when the causal connection is remote or when “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Hudson, supra at 2164.
In Ceccolini, supra at 276-278, the United States Supreme Court held that the connection between police misconduct and the discovery of witnesses who will testify at trial is often too attenuated to justify application of the exclusionary rule:
The greater the ■willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify.
. . . Rules which disqualify knowledgeable witnesses from testifying at trial are, in the words of Professor McCormick, “serious obstructions to the ascertainment of truth”; accordingly, “[f]or a century the course of legal evolution has been in the direction of sweeping away these obstructions.” C. McCormick, Law of Evidence § 71 (1954). [Ceccolini, supra at 276-278.]
The Ceccolini Court concluded that “since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.” Id. at 278.
[T]he exclusionary rule should be invoked with much greater reluctance where the claim is based on a caused relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. [Id. at 280.]
Applying these principles, we conclude that the degree of attenuation was sufficient to dissipate the connection between any Sixth Amendment violation and the testimony. Ceccolini, supra at 279. The street sweepers testified of their own free will during the first trial, and any violation of defendant’s right to counsel during the interrogation played no meaningful part in the street sweepers’ willingness to testify. Moreover, we have no indication that their testimony was, or would be in the next trial, coerced. We conclude, as did the Ceccolini Court, that, “[t]he cost of permanently silencing [the third-party testimony] is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect.” Ceccolini, supra at 280. Because of the remote causal connection between any Sixth Amendment violation and the discovery of the street sweepers’ identities, there is no justification for suppression of the street sweepers’ testimony.
In sum, the Court of Appeals erred in holding that the exclusionary rule applies to the street sweepers’ testimony. Law enforcement did not engage in any misconduct in obtaining defendant’s confession or discovering the identity of the street sweepers, so the goal of the exclusionary rule would not be served by exclud ing the street sweepers’ testimony. In any case, the degree of attenuation between the street sweepers’ testimony and any violation of defendant’s Sixth Amendment rights is sufficient to dissipate any taint.
V CONCLUSION
We reverse the Court of Appeals holding that the exclusionary rule applies to the street sweepers’ testimony. We further vacate the Court of Appeals endorsement of the federal district court’s Cronic analysis. We remand for further proceedings consistent with this opinion.
Taylor, C.J., and Weaver, Young, and Markman, JJ., concurred with CORRIGAN, J.
We do not disturb the Court of Appeals holding that defendant’s statements are admissible for impeachment purposes, which is not at issue in this appeal.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
Because the prosecution appealed the trial court’s decision, the trial court never held a hearing regarding whether the police would have inevitably discovered the street sweepers’ identities.
In his partial dissent, Judge Talbot stated that whether defendant’s Sixth Amendment rights were violated was not an issue before the Court. Judge Talbot stated that he was not sure of the correctness of the federal district court’s decision that defendant was denied his right to counsel, but that the Court of Appeals was bound by the unchallenged federal court determination.
Judge Talbot joined the majority on this point.
But the panel disagreed with the trial court that the prosecution was required to show that it actually discovered the street sweepers’ identities through independent legal means.
Although the federal district court’s habeas decision is binding on the parties in this particular case, it is not binding precedent for other cases. See Abela v Gen Motors Corp, 469 Mich 603, 606-607; 677 NW2d 325 (2004) (“Although state courts are bound by the decisions of the United States Supreme Court construing federal law, there is no similar obligation with respect to decisions of the lower federal courts.” [Citations omitted.]).
The dissent would have us leave unquestioned the federal district court’s analysis. But the Court of Appeals opinion approving the district court’s analysis is published and is binding precedent for the Court of Appeals and lower courts. MCR 7.215(J)(1). Even if the Court of Appeals approval of the district court’s opinion is dicta, we will not allow that dicta to stand when it appears in a precedentially binding opinion and is erroneous. We decline to follow the dissent’s suggestion to vacate the Court of Appeals dicta without any explanation of why we are doing so. Rather, the parties and the bench and bar benefit when we explain the reasoning underlying our rulings. Further, although the district court’s decision is binding on the admissibility of defendant’s confession, the district court did not decide whether the street sweepers’ testimony is admissible. If defendant is convicted on retrial, this issue will likely be raised on appeal in the Michigan courts and on habeas review in federal court. Our review of this issue at this juncture will aid those courts that might he required to review this issue in the future. It will also contribute to the broader debate regarding the proper application of the Cronic and Strickland standards.
We also reject the dissent’s suggestion that we have not genuinely attempted to execute the federal order. We have complied with that order, contrary to the prosecution’s request that we violate the order by admitting defendant’s confession. See n 16 of this opinion.
The other two situations in which prejudice is presumed are as follows: (1) “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing”; and (2) where counsel is called upon to render assistance under circumstances where competent counsel very likely could not. Cronic, supra at 659-660.
In this postarraignment interrogation case, defendant had a Sixth Amendment right to counsel at the police interrogation, a critical stage of the proceedings. Michigan v Jackson, 475 US 625, 629-630; 106 S Ct 1404; 89 L Ed 2d 631 (1986). But an accused may waive his Sixth Amendment right to counsel if the waiver is knowing, intelligent, and voluntary. People v Williams, 470 Mich 634, 640; 683 NW2d 597 (2004). Defendant may, of course, even waive counsel at a critical stage of the proceedings. See, e.g., United States v Wade, 388 US 218, 237; 87 S Ct 1926; 18 L Ed 2d 1149 (1967) (holding that the defense counsel was required to he present at the lineup — a “critical stage” — absent an “intelligent waiver” by the defendant).
Additionally, counsel, relying on previous experience, believed that the prosecution might change its position and make a plea offer after defendant talked to the police.
Although we hold that the federal district court should have applied the Strickland standard, we do not apply the Strickland test to the facts of this case or offer any opinion regarding the effectiveness of counsel.
We reject defendant’s argument that his waiver of counsel was not knowing and intelligent because it was made on the advice of defense counsel. The 1998 Court of Appeals panel decided that defendant’s waiver of counsel was valid. The federal district court’s failure to analyze whether defendant’s waiver of counsel was valid further illustrates its faulty reasoning in concluding that Cronic rather than Strickland applies.
This Court denied leave to appeal that decision. 464 Mich 851 (2001).
We reject the dissent’s argument that we have foreclosed any possibility of holding that the derivative evidence (the street sweepers’ testimony) should be excluded by “flatly refus[ing] to accept the validity of the district court’s order.” Post at 261. As we have clearly stated, we recognize that the district court’s ruling is binding, and we accept for purposes of this case that defendant’s Sixth Amendment rights were violated and that his confession must be excluded. We have scrupulously honored the district court’s order, which provides, in pertinent part:
[T]he only appropriate remedy is to not allow use of [defendant’s] tainted statements, should the State decide to initiate a new trial in this matter.
The Court ORDERS that the warden release Petitioner from custody, unless the State of Michigan initiates a new trial in this case, consistent with this Court’s Opinion, within one hundred and twenty (120) days from the entry of this Order. [Frazier v Berghuis, supra, slip op at *7-8.]
The district court did not rule on the admissibility of the street sweepers’ testimony. In compliance with the district court’s order, we are remanding for a new trial in which defendant’s confession must be excluded from evidence. Our disagreement with the district court’s ruling regarding the admissibility of defendant’s statements in no way affects our ruling regarding the admissibility of the street sweepers’ testimony.
“[X]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ ” Segura v United States, 468 US 796, 804; 104 S Ct 3380; 82 L Ed 2d 599 (1984) (internal citations omitted).
While courts must be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for applying the exclusionary rule. Stone v Powell, 428 US 465, 485; 96 S Ct 3037; 49 L Ed 2d 1067 (1976).
In Stone, supra at 488 n 24, the United States Supreme Court quoted Professor Anthony Amsterdam:
“The rule is unsupportable as reparation or compensatory dispensation to the injured criminal; its sole rational justification is the experience of its indispensability in ‘exertfing] general legal pressures to secure obedience to the Fourth Amendment on the part of... law-enforcing officers.’ As it serves this function, the rule is a needed, but grud[g]ingly taken, medicament; no more should be swallowed than is needed to combat the disease. Granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity inflicts gratuitous harm on the public interest....” Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 388-389 (1964) (footnotes omitted).
The dissent cites United States v Wade, 388 US 218, 240-241; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), and Massiah v United States, 377 US 201, 207; 84 S Ct 1199; 12 L Ed 2d 246 (1964), for the proposition that the exclusionary rule is an appropriate remedy for a Sixth Amendment violation. But those cases do not hold that derivative evidence discovered without any police misconduct whatsoever must be excluded from evidence. In both Wade and Massiah, the defendant’s Sixth Amendment rights were violated because of police misconduct. See Wade, supra at 220 (an FBI agent conducted a pretrial lineup [a critical stage of the proceedings] without notice to and in the absence of the defendant’s attorney); Massiah, supra at 201 (federal agents, without notice to the defendant’s attorney, arranged a meeting between the defendant and an accomplice turned informant and eavesdropped on the conversation). No such police misconduct occurred here.
We reject the dissent’s contention that Tucker is inapplicable because the Tucker defendant’s Sixth Amendment rights were not violated. The dissent ignores that the Tucker Court based its holding that the exclusionary rule did not apply to the derivative evidence on the narrow ground that the deterrence rationale of the exclusionary rule would not he fulfilled by excluding the evidence, because the police did not engage in misconduct. Tucker, supra at 447-448. We base our holding on the same ground.
The dissent argues that the street sweepers’ failure to approach the police within one week of the crimes shows that they were not aware of the murders or did not connect the murders with defendant. But this fact actually supports our conclusion that the street sweepers testified of their own free will. In Ceccolini, supra at 279, the Court held that the substantial time that elapsed between the illegal search, the police contact with the witness, and the testimony at trial demonstrated that the witness testified of her own free will. We fail to see how the street sweepers’ initial ignorance of the murders demonstrates their unwillingness to testify.
The dissent argues,
In contrast to the situation in Ceccolini, the identities of the street sweepers were not known to investigators, nor were they likely to he uncovered in the course of the police investigation.. .. [I]t appears that the relationship between discovering the identities of the street sweepers and defendant’s illegal interrogation is not attenuated because the identities were revealed as a direct result of defendant’s interrogation. [Post at 267.]
But Ceccolini, supra at 277, holds: “ ‘The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.’ ” (Citation omitted.) The attenuation exception to the exclusionary rule, unlike the inevitable discovery exception, does not focus primarily on the likelihood of discovering a five witness. Rather, Ceccolini holds that the attenuation exception applies when the connection between police misconduct and the discovery of witnesses who will testify at trial is too attenuated to justify application of the exclusionary rule. Attenuation can occur when the causal connection is remote or when “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Hudson, supra at 2164. Here, the attenuation exception applies because the illegality played no meaningful role in the street sweepers’ decision to testify, and the costs of excluding the street sweepers’ testimony would outweigh the interests served by its suppression.
The dissent argues that it is questionable whether the identities of the street sweepers would inevitably have been discovered during the course of the police investigation. We agree. But the inevitable discovery doctrine is an exception to application of the exclusionary rule. Stevens, supra at 636. Because the exclusionary rule does not apply to the street sweepers’ testimony, the inevitable discovery exception is also inapplicable. | [
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MARKMAN, J.
We granted leave to appeal to consider whether the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 USC 2000cc et seq., entitles plaintiff to the rezoning of its property from single-family residential to multiple-family residential to allow plaintiff to build an apartment complex. The lower courts held that RLUIPA does entitle plaintiff to the rezoning of its property. We conclude that a refusal to rezone does not constitute an “individualized assessment,” and, thus, that RLUIPA is inapplicable. Further, even if RLUIPA is applicable, the building of an apartment complex does not constitute a “religious exercise,” and even if it does constitute a “religious exercise,” the city of Jackson’s refusal to rezone plaintiffs property did not substantially burden plaintiffs religious exercise, and even if it did substantially burden plaintiffs religious exercise, the imposition of that burden is in furtherance of a compelling governmental interest and constitutes the least restrictive means of furthering that interest. Therefore, even assuming that RLUIPA is applicable, it has not been violated. For these reasons, we reverse the judgment of the Court of Appeals and remand this case to the trial court for the entry of a judgment in favor of defendants.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff wants to build an apartment complex across the street from its church on property that it owns in the city of Jackson. The property consists of eight lots totaling 1.13 acres. The property is zoned single-family residential (R-l). One of the lots contains a single-family residence, and the remaining lots are vacant. There are single-family residences on each side of the property. Plaintiff petitioned the city to change the zoning of the property to multiple-family residential (R-3) so that it could construct an apartment complex.
The Region 2 Planning Commission recommended denying plaintiffs rezoning petition. After a public hearing, the city planning commission also voted to recommend that the city council deny plaintiffs rezoning petition. Pursuant to these recommendations, and following another public hearing, the city council voted to deny plaintiffs rezoning petition.
Plaintiff then filed a complaint against defendants, containing two counts: count one directly challenged the city’s zoning decision and count two alleged a violation of RLUIPA. The trial court granted defendants’ motion for summary disposition with regard to count one, which decision was not appealed. With regard to count two, the trial court denied defendants’ motion for summary disposition and granted plaintiffs motion for summary disposition in part. Specifically, the trial court ruled that RLUIPA did apply because the city’s zoning decision constituted an “individualized assessment,” and the refusal to rezone plaintiffs property imposed a “substantial burden” on the exercise of religion. The trial court then ordered a trial on the issue whether the city had a compelling interest for its refusal to rezone. After a bench trial, the trial court ruled that defendants had failed to demonstrate such an interest. Therefore, it determined that defendants had violated RLUIPA and that plaintiff was entitled to the requested rezoning of its property. The trial court enjoined defendant from interfering in any manner with plaintiffs efforts to construct an apartment complex on its property. After the final order was issued, plaintiff filed a motion for attorney fees and costs, and the trial court awarded plaintiff over $30,000 in attorney fees and costs.
The Court of Appeals affirmed the trial court in all respects. 268 Mich App 673; 708 NW2d 756 (2005). The Court of Appeals also held that the application of RLUIPA to compel the requested rezoning did not render the statute unconstitutional. We granted defendants’ application for leave to appeal. 474 Mich 1133 (2006).
II. STANDARD OF REVIEW
A trial court’s ruling on a summary disposition motion is a question of law that this Court reviews de novo. Haynes v Neshewat, 477 Mich 29, 34; 729 NW2d 488 (2007). Questions of statutory interpretation are also questions of law that this Court reviews de novo. Id.
III. ORIGINS OF RLUIPA
The First Amendment of the United States Constitution provides, in pertinent part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” US Const, Am I. The second clause of this amendment is commonly known as the Free Exercise Clause. The protections provided by the First Amendment, including the Free Exercise Clause, have been “incorporated” and extended to the states and to their political subdivisions by the Fourteenth Amendment. Cantwell v Connecticut, 310 US 296, 303; 60 S Ct 900; 84 L Ed 1213 (1940); Santa Fe Independent School Dist v Doe, 530 US 290, 301; 120 S Ct 2266; 147 L Ed 2d 295 (2000).
In Sherbert v Verner, 374 US 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963), the plaintiff, a member of the Seventh-day Adventist Church was discharged by her employer because she would not work on Saturday, the Sabbath Day of her faith. She was unable to obtain other employment because she would not work on Saturdays. The South Carolina Unemployment Compensation Act, SC Code, Tit 68, § 68-1 et seq., provided that a claimant was ineligible for benefits if the claimant had failed “without good cause” to accept available suitable work. The Employment Security Commission determined that the plaintiffs religious belief against working on Saturdays did not constitute “good cause.” The United States Supreme Court held that denying the plaintiff unemployment compensation benefits solely because of her refusal to accept employment in which she would have to work on Saturdays contrary to her religious belief imposed a substantial burden on her exercise of her religion that was not justified by a compelling state interest, and, thus, violated the Free Exercise Clause.
In Employment Div, Dep’t of Human Resources of Oregon v Smith, 494 US 872; 110 S Ct 1595; 108 L Ed 2d 876 (1990), the United States Supreme Court held that Oregon’s prohibition of the use of peyote in religious ceremonies, and the denial of unemployment benefits to persons discharged for such use, does not violate the Free Exercise Clause of the First Amendment. The Court explained that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified, under the Free Exercise Clause, by a compelling governmental interest.
In response to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), prohibiting the government from substantially burdening a person’s exercise of rebgion, even by means of a generally apphcable, rehgion-neutral law, unless the government could demonstrate that the burden imposed furthers a compelling governmental interest and that it constitutes the least restrictive means of furthering such interest.
However, in City of Boerne v Flores, 521 US 507; 117 S Ct 2157; 138 L Ed 2d 624 (1997), the United States Supreme Court held that Congress, in enacting RFRA, had exceeded its powers under § 5 of the Fourteenth Amendment to enact legislation enforcing the Free Exercise Clause of the First Amendment because RFRA proscribes state conduct that the First Amendment itself does not proscribe. 123 The Court explained:
Congress’ power under § 5, however, extends only to “enforcing” the provisions of the Fourteenth Amendment. The Court has described this power as “remedial....” The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”
While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. [Id. at 519-520.]
The Supreme Court then concluded that the substantial costs that RFRA exacted through its “compelling governmental interest” test “far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id. at 534. Thus, “the Court invalidated RFRA as applied to the states, finding it an unconstitutional exercise of Congress’ Enforcement Clause powers because Congress had not shown a pattern of religious discrimination meriting such a far-reaching remedy ....” Galvan, Beyond worship: The Religious Land Use and Institutionalized Persons Act of 2000 and religious institutions’ auxiliary uses, 24 Yale L & Policy R 207, 218 (2006).
In response to City of Boerne, Congress enacted RLUIPA. Unlike RFRA, RLUIPA does not attempt to bar all laws that substantially burden religious exercise. Instead, it focuses on land use regulations 000 and provides, in pertinent part:
(a) Substantial burdens.
(1) General rule. No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) Scope of application. This subsection applies in any case in which—
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved. [42 USC 2000cc(a).]* 123****
“Religious exercise” is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 USC 2000cc-5(7)(A). RLUIPA specifically provides that “[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” 42 USC 2000cc-5(7)(B). A plaintiff asserting a RLUIPA violation has the burden of presenting prima facie evidence to support the assertion. 42 USC 2000cc-2(b). That is, the plaintiff has the burden to prove that RLUIPA is applicable and that the government has implemented a land use regulation that imposes a substantial burden on the exercise of religion. Id. Once the plaintiff has proven this, the burden shifts to the government to prove that the imposition of such burden is in furtherance of a compelling governmental interest and constitutes the least restrictive means of furthering that interest. Id. As the United States Supreme Court has explained, “RLUIPA is [a] congressional effort[] to accord religious exercise heightened protection from government-imposed burdens, consistent with this Court’s precedents.” Cutter v Wilkinson, 544 US 709, 714; 125 S Ct 2113; 161 L Ed 2d 1020 (2005). Therefore, it is clearly appropriate to examine the United States Supreme Court’s precedents when analyzing RLUIPA.
IV ANALYSIS
A. INDIVIDUALIZED ASSESSMENT
The threshold question is whether RLUIPA is applicable to this dispute. The burden is on plaintiff to prove that RLUIPA is applicable. 42 USC 2000cc-2(b). RLUIPA “applies only if one of three jurisdictional tests is first met____” Midrash Sephardi, Inc v Town of Surfside, 366 F3d 1214, 1225 (CA 11, 2004); see also Prater v City of Burnside, 289 F3d 417, 433 (CA 6, 2002) (“[T]he Church may not rely upon RLUIPA unless it first demonstrates that the facts of the present case trigger one of the bases for jurisdiction provided in that statute”); Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich App 315, 326-327; 627 NW2d 271 (2003) (“In order to establish a claim under RLUIPA, a party must establish that at least one of these three jurisdictional elements exists [.]”). RLUIPA states that it “applies in any case in which”
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved. [42 USC 2000cc(a)(2) (emphasis added).]
Therefore, the issue is whether a substantial burden has been imposed in the implementation of a land use regulation under which a government is permitted to make an individualized assessment of the proposed uses for the property involved.
This is not the first time that the phrase “individualized assessment” has been employed. The United States Supreme Court distinguished its decision in Bowen v Roy, 476 US 693; 106 S Ct 2147; 90 L Ed 2d 735 (1986), from its decisions in Sherbert and Thomas v Review Bd of Indiana Employment Security Div, 450 US 707; 101 S Ct 1425; 67 L Ed 2d 624 (1981), on the basis that the latter decisions, unlike Bowen, involved “individualized assessments.” “The statutory conditions at issue in [Sherbert and Thomas] provided that a person was not eligible for unemployment compensation benefits if, ‘without good cause,’ he had quit work or refused available work. The ‘good cause’ standard created a mechanism for individualized exemptions.” Bowen, supra at 708. In Sherbert and Thomas, the Court held that when the government applies individualized exemptions, but refuses to extend an exemption to an instance of genuine “religious hardship,” the government must demonstrate a compelling reason for denying the requested exemption. Id.
In Smith, supra at 884, the United States Supreme Court again emphasized the distinction between governmental action requiring and not requiring individualized assessments.
The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct.... [A] distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant’s unemployment. .. . [0]ur decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason. [Id., quoting Bowen, supra at 708.]
In Church of the Lukumi Babalu Aye, Inc v City of Hialeah, 508 US 520, 527; 113 S Ct 2217; 124 L Ed 2d 472 (1993), the United States Supreme Court, against the backdrop of a ritualistic practice of animal sacrifice by practitioners of the Santerian faith, held that a city ordinance that prohibits a person from “unnecessarily... killing] ... an animal” violates the Free Exercise Clause of the First Amendment. The Court explained:
[B]ecause it requires an evaluation of the particular justification for the killing, this ordinance represents a system of “individualized governmental assessment of the reasons for the relevant conduct....” As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government “may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” [Id. at 537 (citations omitted).]
“Individualize” is defined as “to.. . consider individually; specify; particularize.” Random House Webster’s College Dictionary (1991). Therefore, an “individualized assessment” is an assessment based on one’s particular circumstances. Accordingly, RLUIPA applies when the government makes an assessment based on one’s particular or specific circumstances or has in place procedures or practices that would allow the government to make an assessment based on one’s particular or specific circumstances. As the Ninth Circuit Court of Appeals recently held, “RLUIPA applies when the government may take into account the particular details of an applicant’s proposed use of land when deciding to permit or deny that use.” Guru Nanak Sikh Society of Yuba City v Sutter Co, 456 F3d 978, 986 (CA 9, 2006).
In the instant case, the city adopted a zoning ordinance that applied to the entire community, not just to plaintiff. See West v City of Portage, 392 Mich 458, 469; 221 NW2d 303 (1974) (“ ‘[Z]oning ordinances... are classified as general policy decisions which apply to the entire community.’ ”) (citation omitted). Concomitantly, if the city had granted plaintiffs request to rezone the property, such rezoning would also have applied to the entire community, not just plaintiff. A decision whether to rezone property does not involve consideration of only a particular or specific user or only a particular or specific project; rather, it involves the enactment of a new rule of general applicability, a new rule that governs all persons and all projects. See Sherrill v Town of Wrightsville Beach, 81 NC App 369, 373; 344 SE2d 357 (1986) (“[I]t is the duty of the zoning authority to consider the needs of the entire community when voting on a rezoning, and not just the needs of the individual petitioner.”). Thus, if the city had granted plaintiffs request to rezone the property from single-family residential to multiple-family residential, plain tiff could then have sold the property to any third party and that third party could have sold the property to any other third party and any of these parties could have built an apartment complex or any other conforming building on that property. Therefore, the city’s decision whether to rezone the property would not have been predicated on plaintiffs particular circumstances or plaintiffs particular project. Even if the city had affirmatively wanted plaintiff to build an apartment complex on its property, it could not have granted the requested zoning change unless it was also prepared to accommodate all projects falling within the scope of the rezoning. Plaintiffs particular circumstances were simply not determinative of the city’s decision whether to rezone, and, thus, the city’s decision did not constitute an “individualized assessment” within the meaning of that term. Plaintiff has cited no cases in support of its position that a refusal to rezone property constitutes an “individualized assessment,” and we have found none.
Moreover, plaintiff has presented no evidence to suggest that the city has in place procedures or practices that would permit the city to make “individualized assessments” when determining whether to rezone property.
Because the city’s refusal to rezone the property did not constitute an “individualized assessment,” and because there is no evidence that the city has in place procedures or practices that would permit it to make “individualized assessments” when determining whether to grant requests to rezone property, RLUIPA is not applicable here.
B. RELIGIOUS EXERCISE
Assuming that RLUIPA is applicable here, the next question is whether the building of an apartment complex constitutes a “religious exercise.” The burden is on plaintiff to prove that the building of an apartment complex constitutes a “religious exercise.” 42 USC 2000cc-2(b). RLUIPA provides in pertinent part:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless .... [42 USC 2000cc(a)(1) (emphasis added).]
“Religious exercise” is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 USC 2000cc-5(7)(A). RLUIPA specifically provides that “[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” 42 USC 2000cc-5(7)(B). A “religious exercise” consists of a specific type of exercise, an exercise of religion, and this is not the equivalent of an exercise — any exercise — by a religious body. “The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.” Davis v Beason, 133 US 333, 342; 10 S Ct 299; 33 L Ed 637 (1890), overruled on other grounds in Romer v Evans, 517 US 620, 634; 116 S Ct 1620; 134 L Ed 2d 855 (1996). The United States Supreme Court has explained that “ ‘[t]he “exercise of religion” often involves not only belief and profession but the performance of... physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine____’ ” Cutter, supra at 720, quoting Smith, supra at 877. The Supreme Court has further held that “[although RLUIPA bars inquiry into whether a particular belief or practice is ‘central’ to a prisoner’s religion, see 42 U.S.C. § 2000cc-5(7)(A), the Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity. Cf. Gillette v. United States, 401 U.S. 437, 457, 91 S. Ct. 828, 28 L. Ed. 2d 168, (1971) (‘ “The ‘truth’ of a belief is not open to question”; rather, the question is whether the objector’s beliefs are “truly held.” ’ (quoting United States v. Seeger, 380 U.S. 163, 185, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965))).” Cutter, supra at 725 n 13. Nor, obviously, does RLUIPA bar inquiry into whether a particular belief or practice constitutes an aspect, central or otherwise, of a person’s religion.
The question that we must answer is whether plaintiff is seeking to use its property for the purpose of religious exercise. Obviously, not everything that a religious institution does constitutes a “religious exercise.” Plaintiff bears the burden of establishing that its proposed use of the property constitutes a “religious exercise.” 42 USC 2000cc-2(b). In the instant case, the only evidence that plaintiff has presented to establish that its proposed use of the property constitutes a “religious exercise” is an affidavit signed by the bishop of the Greater Bible Way Temple. The affidavit states that plaintiffs mission is set forth in its letterhead as follows:
The Greater Bible Way Temple stands for truth, the promotion of the Gospel of Jesus Christ through the Apostolic Doctrine, and an exceptional level of service to the community. This includes housing, employment, consulting and supports as determined appropriate in fulfilling our Mission.
The affidavit further states that plaintiff “wishes to further the teachings of Jesus Christ by providing housing and living assistance to the citizens of Jackson.”
No evidence has been presented to establish that the proposed apartment complex would be used for religious worship or for any other religious activity. Instead, it appears that the only connection between the proposed apartment complex and “religious exercise” is the fact that the apartment complex would be owned by a religious institution. Generally, the building of an apartment complex would be considered a commercial exercise, not a religious exercise. The fact that the apartment complex would be owned by a religious institution does not transform the building of an apartment complex into a “religious exercise,” unless the term is to be deprived of all practical meaning. Something does not become a “religious exercise” just because it is performed by a religious institution. Because plaintiff has not shown that the building of the apartment complex constitutes an exercise in religion, the city’s decision not to rezone the property cannot be said to have burdened plaintiffs “religious exercise,” and, thus, RLUIPA has not been violated.
C. SUBSTANTIAL BURDEN
Assuming, however, that the building of an apartment complex does constitute a “religious exercise,” the next question is whether the city’s refusal to rezone the property to allow the apartment complex constitutes a “substantial burden” on that “religious exercise.” The burden is on plaintiff to prove that the city’s refusal to rezone the property constitutes a “substantial burden” on plaintiffs exercise of religion. 42 USC 2000cc-2(b). RLUIPA provides in pertinent part:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless .... [42 USC 2000cc(a)(1) (emphassis added).]
RLUIPA does not define the phrase “substantial burden.” However, this is not the first time that the phrase “substantial burden” has been used.
Before deciding Smith, the United States Supreme Court held that a “substantial burden” on one’s religious exercise that was not justified by a compelling governmental interest violated the Free Exercise Clause. Jimmy Swaggart Ministries v Bd of Equalization of California, 493 US 378, 384-385; 110 S Ct 688; 107 L Ed 2d 796 (1990), quoting Hernandez v Comm’r of Internal Revenue, 490 US 680, 699; 109 S Ct 2136; 104 L Ed 2d 766 (1989) (“Our cases have established that ‘the free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.’ ”). The United States Supreme Court’s definition of “substantial burden” in its free exercise cases is instructive in determining what Congress understood “substantial burden” to mean in RLUIPA.
In Sherbert, supra at 404, the United States Supreme Court held that a “substantial burden” exists when an individual is “force[d] ... to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion ... on the other hand.”
In Thomas, supra at 717-718, the Supreme Court explained:
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
In Lyng v Northwest Indian Cemetery Protective Ass’n, 485 US 439, 450; 108 S Ct 1319; 99 L Ed 2d 534 (1988), the United States Supreme Court explained that “incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs” do not constitute “substantial burdens.”
Several federal circuit courts of appeal have also defined the term “substantial burden.” Although we are not bound by these decisions, Abela v Gen Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004), we find them persuasive.
In Civil Liberties for Urban Believers v Chicago, 342 F3d 752 (CA 7, 2003), the Seventh Circuit Court of Appeals held that a Chicago zoning ordinance that allows churches as a matter of right in residential zones, but requires them to obtain special use permits in other zones, does not violate RLUIPA. That court explained:
Application of the substantial burden provision to a regulation inhibiting or constraining any religious exercise, including the use of property for religious purposes, would render meaningless the word “substantial,” because the slightest obstacle to religious exercise incidental to the regulation of land use — however minor the burden it were to impose — could then constitute a burden sufficient to trigger RLUIPA’s requirement that the regulation advance a compelling governmental interest by the least restrictive means. We therefore hold that, in the context of RLUIPA’s broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise— including the use of real property for the purpose thereof within the regulated jurisdiction generally — effectively impracticable.
While [the ordinance] may contribute to the ordinary difficulties associated with location (by any person or entity, religious or nonreligious) in a large city, [it does] not render impracticable the use of real property in Chicago for religious exercise, much less discourage churches from locating or attempting to locate in Chicago. See, e.g., Love Church v. City of Evanston, 896 F.2d 1082, 1086 (7th Cir. 1990) (“Whatever specific difficulties [plaintiff church] claims to have encountered, they are the same ones that face all [land users]. The harsh reality of the marketplace sometimes dictates that certain facilities are not available to those who desire them”). ... Otherwise, compliance with RLUIPA would require municipal governments not merely to treat religious land uses on an equal footing with nonreligious land uses, but rather to favor them in the form of an outright exemption from land-use regulations. Unfortunately for Appellants, no such free pass for religious land uses masquerades among the legitimate protections RLUIPA affords to religious exercise. [Id. at 761-762 (emphasis in the original).]
In San Jose Christian College v City of Morgan Hill, 360 F3d 1024 (CA 9, 2004), the Ninth Circuit Court of Appeals held that there was no RLUIPA violation where the city denied the plaintiffs rezoning application. That court explained:
A “burden” is “something that is oppressive.” BLACK’S LAW DICTIONARY 190 (7th ed.1999). “Substantial,” in turn, is defined as “considerable in quantity” or “significantly great.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1170 (10th ed.2002). Thus, for a land use regulation to impose a “substantial burden,” it must be “oppressive” to a “significantly great” extent. That is, a “substantial burden” on “religious exercise” must impose a significantly great restriction or onus upon such exercise.
[W]hile the PUD ordinance may have rendered College unable to provide education and/or worship at the Property, there is no evidence in the record demonstrating that College was precluded from using other sites within the city. Nor is there any evidence that the City would not impose the same requirements on any other entity seeking to build something other than a hospital on the Property. [Id. at 1034, 1035.]
In Midrash Sephardi, the Eleventh Circuit Court of Appeals held that an ordinance that prohibits churches and synagogues in the town’s business district does not impose a “substantial burden” on the exercise of religion. That court explained:
[A] “substantial burden” must place more than an inconvenience on religious exercise; a “substantial burden” is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accord ingly. Thus, a substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct. [Midrash Sephardi, supra at 1227.]
In Adkins v Kaspar, 393 F3d 559 (CA 5, 2004), the Fifth Circuit Court of Appeals held that requiring the presence of a qualified outside volunteer at prison congregations did not impose a “substantial burden” on the plaintiffs exercise of religion. That court explained:
[A] government action or regulation creates a “substantial burden” on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violates his religious beliefs. [T]he effect of a government action or regulation is significant when it either (1) influences the adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit, and, on the other hand, following his religious beliefs. On the opposite end of the spectrum, however, a government action or regulation does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from either enjoying some benefit that is not otherwise generally available or acting in a way that is not otherwise generally allowed. [Id. at 570.]
In Spratt v Rhode Island Dep’t of Corrections, 482 F3d 33, 38 (CA 1, 2007), which involved a blanket ban against all preaching activities by prison inmates, the First Circuit Court of Appeals asserted:
The district court decided that a “substantial burden” is one that “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs,” citing Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 718, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981); see also Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (applying the Thomas standard in a RLUIPA case). Assuming arguendo that Thomas applies,... Spratt has made a prima facie showing that his religious exercise has been substantially burdened.
In Grace United Methodist Church v City of Cheyenne, 451 F3d 643 (CA 10, 2006), the Tenth Circuit Court of Appeals held that the city’s denial of the plaintiff church’s request for a variance from an ordinance prohibiting any entity from operating a commercial day care center in a residential zone did not violate RLUIPA. That court explained:
[T]he incidental effects of otherwise lawful government programs “which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs” do not constitute substantial burdens on the exercise of religion. [Id. at 662 (citation omitted).]
After reviewing the above decisions, we believe that it is clear that a “substantial burden” on one’s “religious exercise” exists where there is governmental action that coerces one into acting contrary to one’s religious beliefs by way of doing something that one’s religion prohibits or refraining from doing something that one’s religion requires. That is, a “substantial burden” exists when one is forced to choose between violating a law (or forfeiting an important benefit) and violating one’s religious tenets. A mere inconvenience or irritation does not constitute a “substantial burden.” Similarly, something that simply makes it more difficult in some respect to practice one’s religion does not constitute a “substantial burden.” Rather, a “substantial burden” is something that “coerce[s] individuals into acting contrary to their religious beliefs . . . .” Lyng, supra at 450.
In the instant case, plaintiff argues that the city’s refusal to rezone its property to allow it to build an apartment complex constitutes a “substantial burden” on its “religious exercise.” Even assuming that the building of an apartment complex constitutes a “religious exercise,” the city’s refusal to rezone the property so plaintiff can build an apartment complex does not constitute a “substantial burden” on that exercise. The city is not forbidding plaintiff from building an apartment complex; it is simply regulating where that apartment complex can be built. If plaintiff wants to build an apartment complex, it can do so; it just has to build it on property that is zoned for apartment complexes. If plaintiff wants to use the property for housing, then it can build single-family residences on the property. In other words, in the realm of building apartments, plaintiff has to follow the law like everyone else.
“While [the zoning ordinance] may contribute to the ordinary difficulties associated with location (by any person or entity, religious or nonreligious) in a large city,” Civil Liberties for Urban Believers, supra at 761, it does not prohibit plaintiff from providing housing. “ ‘Whatever specific difficulties [plaintiff church] claims to have encountered, they are the same ones that face all [land users].’ ” Id., quoting Love Church, supra at 1086. The city has not done anything to coerce plaintiff into acting contrary to its religious beliefs, and, thus, it has not substantially burdened plaintiffs exercise of religion. Lyng, supra at 450.
D. COMPELLING GOVERNMENTAL INTEREST
Assuming that the city’s refusal to rezone the property constitutes a “substantial burden” on plaintiffs “religious exercise,” the next question is whether it is “in furtherance of a compelling governmental interest.” The burden is on defendants to prove that the imposition of the burden on plaintiff is in furtherance of a compelling governmental interest. 42 USC 2000cc-2(b). RLUIPA provides in pertinent part:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest.... [42 USC 2000cc(a)(1) (emphasis added).]
After a bench trial on this issue, the trial court held that “this mere concern over zoning [does not] establish[] a compelling State interest.” We respectfully disagree. It has long been recognized that “local governments have a compelling interest in protecting the health and safety of their communities through the enforcement of the local zoning regulations.” Murphy v Zoning Comm of the Town of New Milford, 148 F Supp 2d 173, 190 (D Conn, 2001). “ ‘All property is held subject to the right of the government to regulate its use in the exercise of the police power so that it shall not be injurious to the rights of the community or so that it may promote its health, morals, safety and welfare.’ ” Austin v Older, 283 Mich 667, 677; 278 NW 727 (1938), quoting State v Hillman, 110 Conn 92, 105; 147 A 294 (1929). Therefore, a municipal body “clearly has a compelling interest in enacting and enforcing fair and reasonable zoning regulations.” First Baptist Church of Perrine v Miami-Dade Co, 768 So 2d 1114, 1118 (Fla App, 2000). “A government’s interest in zoning is indeed compelling.” Konikov v Orange Co, 302 F Supp 2d 1328, 1343 (MD Fla, 2004); see also Midrash Sephardi v Town ofSurfside, 2000 US Dist LEXIS 22629, *51 (SD Fla, 2000) (holding that “the zoning interests of Surf-side may properly be characterized as compelling”). “The compelling state interest and, hence, the municipal concern served by zoning regulation of land use is promotion of health, safety, morals or general welfare.” Home Bldg Co v Kansas City, 609 SW2d 168, 171 (Mo App, 1980). “[T]he ordinance serves a compelling state interest; the City[’s]... police power to regulate the private use of the land.” Lyons v Fort Lauderdale, 1988 US Dist LEXIS 17646, *5-6 (SD Fla, 1988). “The city has a cognizable compelling interest to enforce its zoning laws____Reserving areas for commercial activity both protects residential areas from commercial intrusion and fosters economic stability and growth.” Chicago Hts v Living Word Outreach Full Gospel Church and Ministries, Inc, 302 Ill App 3d 564, 572; 707 NE2d 53 (1998); see also Daytona Rescue Mission, Inc v City of Daytona Beach, 885 F Supp 1554, 1560 (MD Fla, 1995) (holding that “the City’s interest in regulating homeless shelters and food banks is a compelling interest”).
In the instant case, the city has a compelling interest in regulating where apartment complexes can be built within the city. As the United States Supreme Court has explained:
The matter of zoning has received much attention at the hands of commissions and experts, and the results of their investigations have been set forth in comprehensive reports. These reports, which bear every evidence of painstaking consideration, concur in the view that the segregation of residential, business, and industrial buildings will make it easier to provide fire apparatus suitable for the character and intensity of the development in each section; that it will increase the safety and security of home life; greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections; decrease noise and other conditions which produce or intensify nervous disorders; preserve a more favorable environment in which to rear children, etc. With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities — until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances. [Village of Euclid v Ambler Realty Co, 272 US 365, 394-395; 47 S Ct 114; 71 L Ed 303 (1926).]
See also Kropf v Sterling Hts, 391 Mich 139, 159-160; 215 NW2d 179 (1974) (adopting the above analysis in addressing “why the local zoning board could reasonably restrict multiple dwellings in a residential area”). That a court will defer to zoning authorities and will only overturn a zoning ordinance excluding other uses from a single-family residential area if it is arbitrary or capricious is evidence of the magnitude of the municipalities’ interest in such zoning ordinances. Id. at 161 (holding that “[i]t is not for this Court to second guess the local governing bodies in the absence of a showing that that body was arbitrary or capricious in its exclusion of other uses from a single-family residential district”).
In this case, much testimony was presented regarding the city’s interest in preserving single-family neighborhoods. Charles Reisdorf, the Executive Director of the Regional Planning Commission, testified:
[I]n an area where you have a large number of single-family residences, people have made purchases with the expectation that there will be some stability in the neighborhood. For most of us, the purchase of a home is the major expense of our life .... And so when you — when you have something that’s incompatible interjected into a neighborhood area, it creates problems and often results in a blighting situation....
Dennis Diffenderfer, a planner who has been with the city’s Department of Community Development for nearly 20 years, testified:
[A]ny time you even add a duplex or a three- or four-unit or a number of buildings that convert to rental, it does have a negative effect on the adjoining neighbors. I can speak not only as a housing professional, but from experiences.
Charles Aymond, who has served as the chairman of the Jackson Planning Commission for over ten years, testified:
[T]he City has experienced a great deal of blight and destabilization as the result of commercial enterprises ... or different residential uses coming into what is generally referred to as a higher residential use.
Plaintiffs own architect, James Pappas, testified that if the property were rezoned multiple-family residential, as the plaintiff desires, a 45-foot apartment complex would be permitted and this would be “inappropriate with that neighborhood.”
Given the city’s general interest in zoning, and the city’s specific interest in maintaining the character of this single-family residential neighborhood, we con- elude that the city has a compelling interest in maintaining single-family residential zoning and in not rezoning this area of the city.
E. LEAST RESTRICTIVE MEANS
Given that the imposition of the burden on plaintiff is in furtherance of a compelling governmental interest, the final question is whether a particular governmental action constitutes the “least restrictive” means of furthering that interest. 42 USC 2000cc(a)(1)(B). The burden is on defendants to prove that an action constitutes the least restrictive means of furthering the compelling governmental interest. 42 USC 2000cc-2(b). RLUIPA provides in pertinent part:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest. [42 USC 2000cc(a)(1) (emphasis added).]
In the instant case, plaintiff asked the city to rezone the property from single-family residential to multiple-family residential. In response, the city could have done one of two things — it could have granted or it could have denied plaintiffs request to rezone the property. The city decided to deny plaintiffs request to rezone the property. That is, the city decided to maintain the single-family residential zoning. There do not appear to be any less restrictive means of maintaining the single-family residential zoning.
For these reasons, we conclude that any burden placed on plaintiffs exercise of religion is in furtherance of a compelling governmental interest and constitutes the least restrictive means of furthering that compelling governmental interest. Therefore, even assuming that RLUIPA is applicable in the instant case, it has not been violated.
V CONCLUSION
RLUIPA applies to burdens imposed by governmental bodies on “religious exercises” in the course of implementing land use regulations under which “individualized assessments” may be made of the proposed uses for the land. An “individualized assessment” is an assessment based on one’s particular or specific circumstances. A decision concerning a request to rezone property does not involve an “individualized assessment.” Therefore, RLUIPA is not applicable here.
A “religious exercise” constitutes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 USC 2000cc-5(7)(A). However, something does not become a “religious exercise” just because it is carried out by a religious institution. Because the only connection between religion and the construction of the apartment complex in this case is the fact that the apartment complex would be owned by a religious institution, the building of the apartment complex does not constitute a “religious exercise.”
A “substantial burden” on one’s “religious exercise” exists where there is governmental action that coerces one into acting contrary to one’s religious beliefs by way of doing something that one’s religion prohibits or refraining from doing something that one’s religion requires. A mere inconvenience or irritation does not constitute a “substantial burden”; similarly, something that simply makes it more difficult in some respect to practice one’s religion does not constitute a “substantial burden.” Because the city has not done anything to coerce plaintiff into acting contrary to its religious beliefs, the city has not substantially burdened plaintiffs religious exercise.
Even if the city did substantially burden plaintiffs religious exercise, imposition of that burden here is in furtherance of a compelling governmental interest, namely, the enforcement of local zoning ordinances, and constitutes the least restrictive means of furthering that compelling governmental interest. Therefore, even assuming that RLUIPA is applicable, RLUIPA was not violated. For these reasons, we reverse the judgment of the Court of Appeals and remand this case to the trial court for the entry of a judgment in favor of defendants.
Taylor, C.J.,and Corrigan and Young, JJ., concurred with Markman, J.
Smith, supra at 884, held that Sherbert was distinguishable because Sherbert involved an “individualized governmental assessment”; that is, the “good cause” standard at issue in Sherbert allowed the government to consider the plaintiffs “particular circumstances.” See pp 387-388 of this opinion. That is, Smith held that while the “compelling governmental interest” test may be applicable to laws allowing for an “individualized governmental assessment,” it is not applicable to generally applicable laws that do not allow for an “individualized governmental assessment.”
RFBA provides, in pertinent part:
(a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) Exception. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest. [42 USC 2000bb-1.]
Section 5, the Enforcement Clause of the Fourteenth Amendment, provides:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. [US Const, Am XIV, § 5.]
Although. RFRA no longer applies to the states, it still applies to the federal government. See Gonzales v O Centro Espirita Beneficente Uniao Do Vegetal, 546 US 418; 126 S Ct 1211; 163 L Ed 2d 1017 (2006) (holding that, under RFRA, the Controlled Substances Act, 21 USC 801 et seq., cannot prohibit a religious sect from receiving communion by drinking hoasca, a tea that contains a hallucinogen).
RLUIPA also focuses on regulations pertaining to institutionalized persons, but that portion of RLUIPA is not applicable here.
6 “Government” is defined as:
(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(n) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and
(in) any other person acting under color of State law; and
(B) for the purposes of sections 4(b) and 5 [42 USC 2000cc-2(b) and 2000cc-3], includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law. [42 USC 2000cc-5(4).]
7 “Land use regulation” is defined as a
zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest. [42 USC 2000cc-5(5).]
That the city’s denial of plaintiffs petition to rezone its property here constitutes a “land use regulation” is uncontested.
8 RLUIPA further provides:
(b) Discrimination and exclusion.
(1) Equal terms. No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
(2) Nondiscrimination. No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
(3) Exclusions and limits. No government shall impose or implement a land use regulation that—
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. [42 USC 2000cc(b).]
Plaintiff does not argue that 42 USC 2000cc(b) was violated.
RLUIPA provides, in pertinent part:
If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2 [42 USC 2000cc], the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall hear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiffs exercise of religion. [42 USC 2000cc-2(b).]
10 RLUIPA also “applies in any case in which”
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability .... [42 USC 2000cc(a)(2).]
However, it is uncontested that A and B are not applicable to the instant case.
In Sherbert, as discussed above, the United States Supreme Court held that South Carolina’s denial of unemployment compensation benefits to a member of the Seventh-day Adventist Church who could not find work because her religious convictions prevented her from working on Saturdays abridged her right to the free exercise of her religion. In Thomas, the United States Supreme Court held that Indiana’s denial of unemployment compensation benefits to a Jehovah’s Witness who terminated his employment because his religious beliefs prevented him from participating in the production of weapons abridged his right to the free exercise of his religion.
Although a request to rezone a particular piece of property “ ‘may be differentiated on the basis that such a determination is narrowly confined to a particular piece of property,’ ” West, supra at 469 (citation omitted), it still applies to the “entire community.” That is, the “entire community” would be bound by the city’s decision to rezone or not rezone the property.
Plaintiffs counsel told the trial court that “even at the planning commission level, they don’t care what’s being built”; “they don’t consider a site plan”; “the site plan itself is irrelevant when it comes to requesting rezoning from R-1 to R-3.” Appellant’s appendix at 238a, 523a.
Possibly, if plaintiff had requested a variance and the city had refused that request, this might constitute an “individualized assessment.” See Shepherd, supra at 320 (holding that “[w]hen the Ann Arbor Charter Township Zoning Board of Appeals examined and subsequently denied plaintiffs petition for a variance, an individualized assessment pursuant to 42 USC 2000ce(a)(2)(C) occurred”). A request for a variance is significantly different from a request to rezone. When one requests a variance, one is requesting permission to use the property for a specific use. By contrast, when one requests a rezoning, one is asking the city for permission to use the property for any use that would be permitted under the new classification. Therefore, when the city considers a request for a variance, it does consider the specific site plan proposed by the landowner. But, when the city considers a request for rezoning, it considers the numerous different uses that would be permitted under the new classification, and it does not consider a specific site plan.
In Cutter, supra at 718, the United States Supreme Court held that “RLUIPA’s institutionalized-persons provision, § 3 of the Act, is consistent with the Establishment Clause of the First Amendment.” The Court also made clear that “Section 2 of RLUIPA [the land use regulation provision] is not at issue here. We therefore express no view on the validity of that part of the Act.” Id. at 716 n 3.
Notwithstanding the inquiry required by RLUIPA into what constitutes a “religious exercise,” this Court is extremely cognizant of the difficulties inherent in a judicial body’s evaluating the practices of particular religious faiths or assessing the “centrality” of particular religious precepts. In accord, Smith, supra at 890 (“It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each ... judgeO weights] the social importance of all laws against the centrality of all religious beliefs.”); Lemon v Kurtzman, 403 US 602, 613; 91 S Ct 2105; 29 L Ed 2d 745 (1971) (expressing concern about fostering an “ ‘excessive government entanglement with religion’ ”) (citation omitted).
The bishop’s affidavit proceeds to state that “there is a substantial need in the City of Jackson for clean and affordable housing, especially for the elderly and disabled.” However, because there is no evidence that the proposed complex would either be limited to housing elderly and disabled persons or be designed to accommodate elderly and disabled persons to any particular extent, it is unnecessary to address whether the building of such a complex would constitute a “religious exercise.”
Relying on Lyng, our Court of Appeals held that “for a burden on religion to be substantial, the government regulation must compel action or inaction with respect to the sincerely held belief; mere inconvenience to the religious institution or adherent is insufficient.” Shepherd, supra at 330.
19 In Lighthouse Institute for Evangelism Inc v City of Long Branch, 100 Fed Appx 70 (CA 3,2004), the Third Circuit Court of Appeals adopted this same definition of “substantial burden.”
We note that the court did not address the prehminary question whether RLUIPA was even applicable to the denial of the rezoning application.
21 A city task force concluded that the city urgently needed a hospital and this particular piece of property was the only suitable location in the city for a hospital.
22 In Murphy v Missouri Dep’t of Corrections, 372 F3d 979, 988 (CA 8, 2004), the Eighth Circuit Court of Appeals held that, to constitute a substantial burden, the government policy or actions
must “significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person’s] individual [religious] beliefs; must meaningfully curtail a [person’s] ability to express adherence to his or her faith; or must deny a [person] reasonable opportunities to engage in those activities that are fundamental to a [person’s] religion.” [Citation omitted.]
Although the Sixth Circuit Court of Appeals has applied the same test when applying RFRA, Miller-Bey v Schultz, 1996 US App LEXIS 6541 (CA 6, 1996), it has not yet addressed the meaning of “substantial burden” under RLUIPA. The Murphy definition of “substantial burden” seems inconsistent with RLUIPA because RLUIPA specifically defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 USC 2000cc-5(7)(A).
We recognize that some courts have held that a “substantial burden” exists where there is “delay, uncertainty, and expense.” See, for example, Sts Constantine & Helen Greek Orthodox Church v City of New Berlin, 396 F3d 895, 901 (CA 7, 2005), and Living Water Church of God v Meridian Charter Twp, 384 F Supp 2d 1123, 1134 (WD Mich, 2005). However, we reject this definition of “substantial burden” both because it is inconsistent with the United States Supreme Court’s definition of the phrase and because it is inconsistent with the common understanding of the phrase “substantial burden.”
Plaintiff was aware when it purchased the property that it was zoned single-family residential. Thus, plaintiffs claim that the city’s refusal to rezone the property will cause it to lose the money that it invested in the property is meritless.
We note that the lower courts’ interpretation of the “substantial burden” provision of RLUIPA would seem to render the “discrimination and exclusion” provision of RLUIPA effectively meaningless because it will almost always be easier to prove a “substantial burden” on one’s “religious exercise,” as those terms are defined by the lower courts, than it will he to prove discrimination or exclusion. See n 8 of this opinion.
42 USC 1988(b) provides, “In any action or proceeding to enforce a provision of. . . the Religious Land Use and Institutionalized Persons Act of 2000 .. . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs ...For the reasons discussed herein, plaintiff is not a “prevailing party,” and, therefore, is not entitled to attorney fees.
As discussed above, in City of Boerne, the United States Supreme Court held that Congress, in enacting RFRA, had exceeded its power under § 5 of the Fourteenth Amendment to enact legislation enforcing the Free Exercise Clause because RFRA proscribes state conduct that the First Amendment itself does not. In Smith, the United States Supreme Court held that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified under the Free Exercise Clause by a compelling governmental interest. However, “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Smith, supra at 884. Proponents of RLUIPA argue that Congress has the authority to enact RLUIPA because it merely codifies Smith. However, the lower courts in the instant case held that, under RLUIPA, a religious institution need not abide by a generally applicable, religion-neutral zoning ordinance unless it is justified by a compelling governmental interest. This seems inconsistent with the Free Exercise Clause as interpreted in Smith, which held that a generally applicable, religion-neutral law does not have to be justified by such an interest. Whenever possible, courts should construe statutes in a manner that renders them constitutional. People v Bricker, 389 Mich 524, 528; 208 NW2d 172 (1973). Because the lower courts’ interpretation of RLUIPA would render RLUIPA unconstitutional, we reject their interpretation and instead adopt the interpretation set forth in this opinion. | [
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Per Curiam.
In this divorce case, plaintiff challenges the trial court’s method for determining the portion of defendant’s pension attributable to their marriage, where defendant worked for almost thirty-two years to earn the pension but was married to plaintiff for only the final 5-1/2 years before he retired. The trial court determined that one-fifth of the total value of the pension was attributable to the marriage and awarded plaintiff half that amount. We affirm.
The facts of the case are not in dispute. Defendant and plaintiff were married on May 26, 1990. Many years before their marriage, in 1956, defendant began working for Consumers Power. He worked for twenty-six years before becoming disabled in 1981. He resumed work on April 19, 1990, five weeks before he married plaintiff. Defendant retired from Consumers Power on December 30, 1995, after almost thirty-two years of service and accepted a lump-sum pension payment of $205,489.66. Plaintiff filed for divorce on August 12, 1996, after six years of marriage.
The trial court decided to distribute the marital assets evenly. The court calculated the portion of the pension that was attributable to the marriage by taking the number of years of marriage in which defendant was earning his pension (approximately 5-1/2) divided by the total years of service to Consumers Power in which defendant was earning this pension (approximately thirty-two), and then multiplying the percentage created by this fraction with the total value of the pension ($205,489.66). Relying on an expert from Consumers Power, the trial court found that $41,943.15 constituted a marital asset and awarded plaintiff half that amount.
When determining property rights in a divorce, the trial court may apportion all property that has come to either party by reason of the marriage. Byington v Byington, 224 Mich App 103, 110; 568 NW2d 141 (1997). The assets earned by a spouse during the marriage are properly considered part of the marital estate. Id. The trial court must strive to provide an equitable division of an increase in the net worth from the beginning to the end of the marriage. Id. at 113. Here, the parties recognize that the trial court decided to divide the marital assets equally between them and do not contest that point. The only question in this appeal is whether the trial court properly determined the portion of the pension that was earned or acquired during the course of the parties’ marriage.
In Michigan, the divorce code specifically states that rights to a vested pension are part of the marital estate:
Any rights in and to vested pension, annuity, or retirement benefits, or accumulated contributions in any pension, annuity, or retirement system, payable to or on behalf of a party on account of service credit accrued by the party during marriage shall be considered part of the marital estate subject to award by the court under this chapter. [MCL 552.18(1); MSA 25.98(1).]
Tliis Court has previously addressed the issue of how to calculate the portion of a pension that is attributable to a marriage when the period in which the pension was earned includes time in which the employee spouse was not married to the other party. See Kilbride v Kilbride, 172 Mich App 421, 438-439; 432 NW2d 324 (1988). Although Kilbride has been partially overruled by this Court, the analysis that was rejected is not implicated in the present case.
In Kilbride, supra at 439, this Court endorsed a method for calculating the value of a pension when the employee earned part of it while not married to the other party. After calculating the monthly benefit that the employee spouse would receive from that employee’s pension, the Court, id. at 439, indicated that the monthly benefit must be reduced by the “cov erture factor” to yield the value that accrued during the marriage:
That factor simply adjusts the benefit to reflect any time for which the employee spouse was a member of the pension system before the marriage. Once the coverture factor is determined, the pension benefit calculated above must be reduced by multiplying it times the coverture factor._
In other words, this Court in Kilbride stated that the trial court must employ a fraction of the years the parties were married while the spouse employee earned his pension over the number of years in which the employee spouse worked to build the pension benefits. See also Kurz v Kurz, 178 Mich App 284, 292-293; 443 NW2d 782 (1989) (referring to the “coverture factor”). Thus, where the employee spouse begins working and starts to earn his pension after he marries, the entire value of the pension earned before the divorce would be a marital asset. See Kilbride, supra at 439, n 4. This same formula for calculating the portion of an employee spouse’s pension that is altributable to the marriage, known as the coverture factor, has been approved in other jurisdictions. See In re Marriage of Hunt, 909 P2d 525, 532 (Colo, 1995); see also Seifert v Seifert, 319 NC 367, 370; 354 SE2d 506 (1987), Hoyt v Hoyt, 53 Ohio St 3d 177, 182; 559 NE2d 1292 (1990), and Berrington v Berrington, 534 Pa 393, 398, n 5; 633 A2d 589 (1993). In calculating the value of the pension attributable to the marriage by looking to the fraction of years of marriage that defendant was working over the total years of his employment, the trial court employed the method that this Court endorsed in Kilbride, supra.
Plaintiff argues that the trial court should only con-skier the increase in the value of the pension from the time the parties married in 1990 to defendant’s retirement in 1995 in determining the portion of the pension that constitutes a marital asset. Thus, plaintiff seeks the change in net worth that occurred during the course of the marriage. See Byington, supra at 113. There is no dispute that, at the beginning of the- marriage, defendant’s pension would have yielded a monthly payment of $534 when defendant turned age sixty-five and that, in 1995, defendant was entitled to a monthly payment of $1,576, for which he accepted a lump-sum payment instead. Plaintiff essentially argues that the fraction created by the two monthly payments, approximately one-third, when multiplied as a percentage with the total value of the pension ($205,489.66), represents the value of the pension before they were married, approximately $68,000. Thus, plaintiff claims that the pension accrued by $137,061.60 over the course of the marriage from 1990 to 1995, not a mere $41,943.15.
For defendant’s employment with Consumers Power, the pension is a function of basically two different values: the number of years worked and the average monthly earnings taken from the top five base earning years during his career. As in most careers, defendant’s top earning years were his final ones, from 1991 through 1995. At the same time, the number of years of service increased dining the marriage from approximately twenty-six years to almost thirty-two years. The expert from Consumers Power explained that the reason for the dramatic increase in value of defendant’s overall pension from 1990 to 1995 was because his earning base was “much lower” before 1990 and that his subsequent increased earnings made a “major difference.”
Although plaintiff argues that only approximately one-third of the ultimate total value of the pension had been realized in 1990, under the circumstances of this marriage, such a calculation would underestimate the significance of defendant’s previous work in contributing to the ultimate value of the pension. Plaintiff points out that the trial court’s method does not adequately reflect the fact that the increase in base earnings occurred during their years of marriage (1991 to 1995), because it relies exclusively on a fraction determined by the number of years of service and the number of years the parties were married during this service. Yet, there is no dispute that had defendant begun working with Consumers Power at the time of their marriage and realized the same earnings, he would have only accrued $41,943.15 as a pension, which is the amount of the total pension that the trial court ultimately determined was attributable to the marriage. Hence, plaintiff is effectively asking the trial court to credit her with the value in defendant’s pension that defendant built before the marriage but did not realize until during the marriage. In light of the relatively short duration of the parties’ marriage in comparison to the many years in which defendant earned his pension, the trial court did not clearly err in refusing to give plaintiff the benefit of defendant’s previous work before the marriage and deciding instead to consider only the years of service while they were married for the purpose of determining the portion of the pension that was attributable to the marriage. Consequently, under the circumstances of this case in which the trial court was only determining the portion of the pension that accrued during the marriage, the trial court did not clearly err in using the method for apportionment endorsed in Kilbride.
Affirmed.
In reaching the amount, $41,943.15, the expert from Consumers Power did not simply determine the fraction and multiply the percentage created by the fraction with the lump-sum value of $205,489.66. He used a more complex calculation used by Consumers Power to determine what would have been the value of the pension if defendant had worked only five and a half years for Consumers Power while he was married to plaintiff. Neither of the parties raises the point that this calculation might produce a different result. Hence, we do not address it.
In Kilbride, supra at 436-437, this Court interpreted MCL 552.18(1); MSA 25.98(1) and held that only an accrual of a pension benefit that occurred during the marriage could be considered as a marital asset and not an accrual that occurred before or after the marriage. See also Kurz v Kurz, 178 Mich App 284, 292; 443 NW2d 782 (1989). This Court refused to follow this holding in Rogner v Rogner, 179 Mich App 326, 329-330; 445 NW2d 232 (1989), because it determined that the trial court could consider pension benefits as part of the marital estate even if accrued before the marriage. This Court later resolved the conflict in favor of Rogner in Booth v Booth, 194 Mich App 284, 290-291; 486 NW2d 116 (1992). Later, this Court held that postdivorce pension contributions could also be considered part of the marital estate. See Boonstra v Boonstra, 209 Mich App 558, 562-563; 531 NW2d 777 (1995). See, generally, McMichael v McMichael, 217 Mich App 723, 729-732; 552 NW2d 688 (1996), for an analysis of the legal development from Kilbride to Boonstra. However, plaintiff does not claim that she deserves part of the value of the pension accrued before marriage; she only disputes the trial court’s method of calculating the value of the pension that accrued during the marriage. Hence, this point is not implicated in the present case.
This Court has also subsequently criticized the method of calculating the total value of the pension, as opposed to the value of the pension attributable to the marriage, articulated in Kilbride, supra at 436-439, and refused to follow it. See Kurz, supra at 292, n 2.
This is best explained by use of an example. If the employee spouse worked at his place of employment for twenty-five years prior to the divorce, but was only married during twenty of those years, that portion of the pension which accrued during the course of the marriage was 20/25 or eighty percent of the pension benefit to which the employee spouse would be entitled at the time of the divorce.
The dissent in Kurz drew the same conclusion as the Kilbride Court with regard to the question of how to calculate the portion of the pension attributable to the marital estate where the trial court does properly limit it to the value accrued during the marriage:
[I]n most situations it might be more appropriate for the trial court to award retirement benefits prorated for the years of the marriage in relation to the years worked].] [Kurz, supra at 301, Murphy, J., concurring in part, dissenting in part. Emphasis added.]
The reasoning of this opinion, although not this particular point, was adopted by this Court in Boonstra, supra at 562-563.
Of course, where the employee is divorced and continues to contribute to his pension, these postdivorce earnings may also be considered part of the marital estate. See Boonstra, supra at 562-563.
Citing appellate court decisions from Arizona, California, Hawaii, Louisiana, Missouri, Montana, Nevada, New Mexico, North Dakota, and Utah. | [
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Doctoroff, P.J.
Plaintiff appeals by leave granted from the circuit court order affirming a district court order granting defendant’s motion for reconsideration, and a district court holding that bonuses and profit sharing constitute payment for work and labor under MCL 600.6231; MSA 27A.6231 and that no writ of garnishment shall issue against those payments. We affirm.
In December 1987, plaintiff obtained a judgment against defendant in the amount of $2,394.06. In December 1994, pursuant to MCL 600.6215(1); MSA 27A.6215(1), the district court entered an order permitting defendant to pay the judgment in installments of $50 a month. In January 1995, the balance due on the judgment, including interest and costs, was $2,935.44. On January 24, 1995, plaintiff filed a nonperiodic writ of garnishment against a profit-sharing payment defendant was due to receive from his employer, Chrysler Corporation. The writ was served on February 1, 1995, and on February 10, 1995, Chrysler paid plaintiff a portion of the bonus covering the balance due on the judgment. On February 17, 1995, plaintiff filed a satisfaction of judgment and defendant filed objections to the writ of garnishment.
Plaintiff did not appear at the hearing on the objections in the district court, and the court ruled in favor of defendant. Plaintiff filed a motion for rehearing. On rehearing, the district court ruled that, because the bonus was not a periodic payment, it was subject to garnishment despite the order for installment payments. Defendant filed a motion for reconsideration, arguing that the bonus was not subject to garnishment. On reconsideration, the court determined that the bonus constituted a fringe benefit under MCL 408.471(e); MSA 17.277(1)(e) that was not subject to garnishment under MCL 600.6215(2); MSA 27A.6215(2) and MCL 600.6231; MSA 27A.6231, and entered an order requiring plaintiff to return the money to defendant. Plaintiff appealed to the circuit court, which affirmed the district court’s order.
MCL 600.6201(1); MSA 27A.6201(1) provides that a judge may enter an order permitting a defendant to pay in installments any judgment previously rendered in the judge’s court. MCL 600.6215(2); MSA 27A.6215(2) provides that the “order shall stay the issuance of any writ of garnishment for work and labor during the period that the defendant complies with the order.” MCL 600.6231; MSA 27A.6231 provides:
The garnishment of any money due or to become due for the personal work and labor of the defendant upon a judgment made payable in installments either by the court order or agreement of parties is prohibited, excepting upon the written order of the judge. Any writ of garnishment issued with the order is void. The order may be made following due notice to the defendant if installments are due.
The issue on this appeal is whether defendant’s profit-sharing bonus constitutes “money due or to become due for personal work and labor” that is not subject to garnishment under MCL 600.6231; MSA 27A.6231. This is an issue of first impression in Michigan.
Statutory construction is a question of law that is reviewed de novo on appeal. Markillie v Livingston Co Bd of Co Rd Comm’rs, 210 Mich App 16, 21; 532 NW2d 878 (1995). In interpreting a statute, this Court must first and foremost give effect to the intent of the Legislature. Tryc v Michigan Veterans' Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). If the language of the statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Id. This Court must give statutory language its ordinary and generally accepted meaning. Id. Where a statute does not define a term, resort to a dictionary for a definition is appropriate. Blue Cross & Blue Shield of Michigan v Eaton Rapids Community Hosp, 221 Mich App 301, 313; 561 NW2d 488 (1997). The principles of statutory construction also apply in construing the court rules. Bush v Beemer, 224 Mich App 457, 461; 569 NW2d 636 (1997).
Plaintiff argues that defendant’s profit-sharing bonus was a nonperiodic payment and that the lower courts erred in holding that it was a payment due for the work or labor of defendant. Plaintiff relies on a definition of nonperiodic payments contained in the Garnishee Disclosure Form. However, MCL 600.6231; MSA 27A.6231 does not distinguish between periodic and nonperiodic payments, but rather applies to all payments due or to become due for the defendant’s work or labor. The distinction becomes relevant only if an order for installment payments is entered after a writ of garnishment of periodic payments for work and labor is issued, in which case the writ is no longer effective. MCR 3.101(N). Because the writ of garnishment in the present case was issued after the order for installment payments was entered, the distinction between periodic and nonperiodic payments is not relevant to the resolution of this appeal.
Because the installment judgments act, MCL 600.6201 et seq.; MSA 27A.6201 et seq. does not define “payment due for work and labor,” we resort to the dictionary. Blue Cross & Blue Shield of Michigan, supra at 313. Black’s Law Dictionary defines “work” as follows:
To exert one’s self for a purpose; to put forth effort for the attainment of an object; to be engaged in the performance of a task, duty or the like. The term covers all forms of physical or mental exertions, or both combined, or the attainment of some object other than recreation or amusement. [Black’s Law Dictionary (5th ed).]
“Labor” is defined:
Work; toil; service; mental or physical exertion. Term normally refers to work for wages as opposed to work for profils; though the word is sometimes construed to mean service rendered or part played in the production of wealth. Includes superintendence or supervision of work. [Black’s Law Dictionary (5th ed).]
The standard dictionary defines the terms as follows:
Work: 1. Exertion or effort directed to produce or accomplish something; labor; toil. 2. Something on which exertion oi' labor is expended; a task or undertaking. 3. Productive or operative activity, especially employment to earn one’s living. . . .
Labor: 1. Productive activity, especially for the sake of economic gain. ... 4. physical or mental work, especially of a hard or fatiguing kind; toil. 5. A job or task done or to be done. [Random House Webster’s College Dictionary (1992).]
While the legal definition of labor as work for remuneration other than profits arguably supports a finding that defendant’s profit-sharing payment was subject to garnishment, we reject such a conclusion. Had the Legislature wanted, it could have limited the application of MCL 600.6231; MSA 27A.6231 to wages. Instead, the plain language of the statute provides that any money due for work and labor is not subject to garnishment when an order permitting installment payments has been entered. Because an employee is not entitled to participate in and receive distributions from a profit-sharing plan unless he performs services for an employer with such a plan, and the distributions from the plan are part of the employee’s total compensation package, the plan distribution can reasonably be construed as payment for work and labor. This interpretation serves the purpose of the statute, which is to protect persons with installment payment orders from garnishment absent prior notice and a specific order allowing it. We therefore hold that, pursuant to MCL 600.6231; MSA 27A.6231, when a judgment debtor is under an order to make installment payments, any. payment he receives from his employer attributable to work or labor performed, whether periodic or nonperiodic, is not subject to garnishment absent an order of the court.
We note that the Supreme Court amended MCR 3.101(A)(4) in December 1997 to include “bonuses” in the definition of “periodic payments.” Plaintiff contends that this supports its argument that defendant’s profit-sharing payment was subject to garnishment under the court rule as it was in effect at the time of tlie lower court proceedings. We reject this argument for two reasons. First, while changes in statutory language are presumed to reflect a change in meaning, tliis Court has also recognized that changes in statutory language may reflect an attempt to clarify the meaning of a provision rather than change it. Michigan Automotive Research Corp v Dep’t of Treasury (After Remand), 222 Mich App 227, 232; 564 NW2d 503 (1997). Second, as discussed above, the distinction between periodic and nonperiodic payments is irrelevant to the resolution of the present case, because the writ of garnishment was entered after the order permitting installment payments.
Affirmed. | [
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Per Curiam.
Plaintiff appeals by leave granted a January 3, 1997, order of the Worker’s Compensation Appellate Commission (wcac), which reversed the decision of the magistrate and granted the petition to stop payment of benefits by defendant Second Injury Fund (sif). We reverse and remand.
i
The facts are undisputed. Plaintiff worked part-time for defendant Westshore Hospital as a licensed practical nurse (lpn). She injured her back on August 26, 1986, while lifting a patient. Her average weekly wage at the time was $141.61. After being off work for some time, she filed an application for hearing in May 1989 claiming continuing disability. She also claimed that her benefit rate should be determined pursuant to § 356 of the Worker’s Disability Compensation Act, MCL 418.356; MSA 17.237(356), which provides in part:
(1) An injured employee who, at the time of the personal injury, is entitled to a rate of compensation less than 50% of the then-applicable state average weekly wage as determined for the year in which the injury occurred pursuant to section 355, may be entitled to an increase in benefits after 2 years of continuous disability. After 2 years of continuous disability, the employee may petition for a hearing at which the employee may present evidence, that by virtue of the employee’s age, education, training, experience, or other documented evidence which would fairly reflect the employee’s earning capacity, the employee’s earnings would have been expected to increase. Upon presentation of this evidence, a hearing referee or worker’s compensation magistrate, may order an adjustment of the compensation rate up to 50% of the state average weekly wage for the year in which the employee’s injury occurred. The adjustment of compensation, if ordered, shall be effective as of the date of the employee’s petition for the hearing. The adjustments provided in this subsection shall be paid by the carrier on a weekly basis. However, the carrier and the self-insurers’ security fund shall be entitled to reimbursement for these payments from the second injury fund created in section 501. There shall be only 1 adjustment made for an employee under this subsection.
In a decision mailed June 13, 1990, a magistrate found that plaintiff was totally disabled as a result of work-related injuries and thus entitled to benefits. The magistrate also found that, but for her injury, her average weekly wage at the time that she filed her petition would have been $365.38. Applying § 356(1), the magistrate awarded benefits at the rate of fifty percent of the state average wage for 1986, $207.35. If benefits had been awarded based on plaintiffs average weekly wage, the rate would have been $101.99 a week. Pursuant to the statute, the sif is liable for the additional weekly benefits. The SIF appealed, and in an opinion and order dated February 10, 1993, the wcac affirmed. The sif did not apply to this Court for leave to appeal.
Meanwhile, in June 1990 plaintiff returned to work at the hospital. Although she is not able to do the work of an LPN, she can work as a phlebotomist. She worked part-time until the end of 1990 or the beginning of 1991, when she began to work full-time. Plaintiff’s weekly wage fluctuates between $250 and $370.
In March 1993, the sif filed a petition to stop payment of benefits. The sif argued that plaintiff is no longer disabled. In the alternative, the SIF argued that she is no longer entitled to benefits pursuant to § 301(5)(c) of the act, which provides:
If an employee is employed and the average weekly wage of the employee is equal to or more than the average weekly wage the employee received before the date of injury, the employee is not entitled to any wage-loss benefits under this act for the duration of such employment.
The SIF argued that, because plaintiff earns at least $250 a week, which is more than the average weekly wage of $141.61 that she earned before her injury, she is not entitled to benefits while so employed.
In an opinion and order mailed July 11, 1994, the magistrate denied the petition to stop benefits. The magistrate found that plaintiff remained totally disabled from her former occupation as an lpn and that the previous magistrate’s decision is res judicata on this point. The magistrate also found that plaintiff is entitled to supplemental benefits from the sip for each week in which her weekly wage exceeds the revised or stepped-up average weekly wage as found by the previous magistrate, $365.38. The magistrate did not address the SlF’s argument based on § 301(5)(c).
The sif appealed, and in an opinion and order dated January 3, 1997, the WCAC reversed in part. Although the WCAC agreed with the SIF that the magistrate erred in relying on res judicata, the WCAC found that plaintiff remains totally disabled within the meaning of the act as it existed at the time she was injured, because she can no longer perform the duties of her skilled employment, even though she can earn substantial wages in other employment. However, the WCAC agreed with the sif that § 301(5)(c) is clear and unambiguous on its face. Because plaintiff’s present average weekly wage exceeds the average weekly wage she; received before the date of her injury, she is not entitled to any wage-loss benefits.
This Court granted plaintiff’s application for leave to appeal.
n
The interpretation of a statute is a question of law, and pursuant to § 861a(3) of the worker’s compensation act, MCL 418.861a(3); MSA 17.237(861a)(3), this Court reviews de novo questions of law involved with any final order of the WCAC.
The sip argues that the WCAC simply applied § 301(5)(c) as written and that there is no need for interpretation of the statute or inquiry into legislative intent. While we agree that the Legislature’s intent is to be found in the terms and arrangement of the statute, and that words should be taken in their natural and ordinary sense, inteipretation of a statute also requires consideration of the purpose of the statute and the object sought to be accomplished. Statutes must be construed to avoid absurd or illogical results and to give effect to their purposes. Gross v General Motors Corp, 448 Mich 147, 158-159, 160, 164; 528 NW2d 707 (1995).
We agree with plaintiff that the Legislature cannot have intended § 301(5)(c) to be applied as it has been in this case in light of the legislative decision embodied in § 356(1). That section allows a disabled employee under certain circumstances to prove that, but for her injury and disability, she would be earning a greater wage than she was earning at the time of the injury. Presumably this section is meant to alleviate the inequities that may result when an employee is injured at a job paying much less than the employee would be able to command in the marketplace or would soon be able to command because of education, training, and so forth. A person might work part-time, like plaintiff, for a variety of reasons, but might have expected to work full-time and received much greater compensation in the near future. If the wcac’s interpretation of § 301(5)(c) were correct, then the puipose underlying § 356(1) would be defeated. Even if plaintiff earns only $142 a week, she would lose all benefits because her present weekly wage would exceed the weekly wage she earned at the time of her injury by thirty-nine cents. Moreover, if plaintiff were to refuse the offer of a job paying $142 a week, she would forfeit her right to benefits pursuant to § 301(5)(a).
In order to avoid this illogical result and to give effect to both sections, we hold that, when an employee successfully obtains an adjustment in compensation pursuant to § 356(1), by demonstrating that the employee would have earned a greater wage but for the injury, the imputed higher wage should be substituted for the preinjury wage when applying § 301(5). An injured employee will thereby receive the benefit of § 356(1) while unemployed, will receive no benefits if wages from favored work exceed the augmented wage rate, and will receive eighty percent of the difference up to the statutory maximum if the favored work pays less than the augmented wage rate.
In the instant case the magistrate found that, but for her injury, plaintiff would have an average weekly wage of $365.38. Plaintiffs weekly wages as a phlebotomist have fluctuated between $250 and $370. Plaintiff is therefore entitled to eighty percent of the difference whenever her weekly wage falls below $365.38 pursuant to § 301(5)(b), and to no benefits when her weekly wage exceeds that amount. We reverse and remand for entry of an order consistent with this opinion.
Finally, the SIF argues in the alternative that the wcac erred in holding that plaintiff remains totally disabled. We disagree. At the time of plaintiff’s injury in 1986 the statute defined “disability” in a manner con sistent with longstanding judicial decisions distinguishing between skilled and unskilled employment. Murdock v Michigan Health Maintenance Organization, 151 Mich App 578, 583; 391 NW2d 757 (1986). See also Haske v Transport Leasing, Inc, 455 Mich 628, 648; 566 NW2d 896 (1997). Because plaintiff is no longer able to do the skilled work of an lpn as a result of her work-related injuiy, the WCAC properly concluded that she is totally disabled under the law in effect at the time of her injury.
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Per Curiam.
After a bench trial, the trial court issued a judgment dismissing plaintiff’s action on its merits. Plaintiff appeals as of right. We reverse and remand.
This case, which is before us for a second time, arises out of plaintiff’s opposition to defendant’s placement of a community corrections center within the city of Kalamazoo. In March of 1993, plaintiff filed a complaint for injunctive and declaratory relief seeking to prevent defendant from following through on its announced plans to locate a new community corrections center on the grounds of the Kalamazoo Regional Psychiatric Hospital. Plaintiff relied, in part, on § 1005 of 1992 PA 163, the general appropriations bill for the Department of Corrections for 1993, which provided:
The department shall not locate a new community corrections center in a residential neighborhood unless the location of the proposed community corrections center has the support of the local unit of government in whose jurisdiction the community corrections center is proposed to be located. If the local unit of government does not give its support for that location, the local unit of government shall provide an alternative site within the local governmental unit’s jurisdiction for the proposed community corrections center.
Plaintiffs complaint alleged that the proposed site was in a residential neighborhood, that plaintiff had expressed its opposition to the proposed site, and that plaintiff had suggested an alternate site within the city of Kalamazoo. After a hearing regarding plaintiffs motion for a preliminary injunction, the trial court dismissed the portion of plaintiffs complaint that relied on § 1005. The trial court reasoned that § 1005 was unconstitutional under the Title-Object Clause of the state constitution, Const 1963, art 4, § 24. After the trial court entered a final order, and defendant transferred inmates into the proposed community corrections center, plaintiff appealed as of right, and this Court reversed. See Kalamazoo v Dep’t of Corrections, 212 Mich App 570; 538 NW2d 85 (1995). On remand, after a bench trial, the trial court again dismissed plaintiffs cause of action, and this appeal followed.
On appeal, plaintiff argues that the trial court erred in failing to follow this Court’s prior ruling regarding the issue of the scope of defendant’s authority regard ing the placement of the challenged community corrections center. We agree. This Court reviews questions of law de novo. Shurlow v Bonthuis, 218 Mich App 142, 148; 553 NW2d 366 (1996).
The law of the case doctrine provides that “if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same.” CAF Investment Co v Saginaw Twp, 410 Mch 428, 454; 302 NW2d 164 (1981). Likewise, a trial court may not take any action on remand that is inconsistent with the judgment of the appellate court. Sokel v Nicoli, 356 Mich 460, 464; 97 NW2d 1 (1959); VanderWall v Midkiff, 186 Mich App 191, 196; 463 NW2d 219 (1990). Thus, as a general rule, a ruling on a legal question in the first appeal is binding on all lower tribunals and in subsequent appeals. See Driver v Hanley (After Remand), 226 Mich App 558, 565; 575 NW2d 31 (1997); Poirier v Grand Blanc Twp (After Remand), 192 Mich App 539, 546; 481 NW2d 762 (1992). The law of the case doctrine applies only to questions actually decided in the prior decision and to those questions necessary to the court’s prior determination. Poirier, supra at 546. The rule applies without regard to the correctness of the prior determination. Driver, supra at 565; Bennett v Bennett, 197 Mich App 497, 504; 496 NW2d 353 (1992). The primary purpose of the rule is to maintain consistency and avoid reconsideration of matters once decided during the course of a single lawsuit. Bennett, supra at 499-500. Finally, the law of the case doctrine does not operate as a limitation on the power of appellate courts, but rather as a discretionary rule of practice. See Locricchio v Evening News Ass’n, 438 Mich 84, 109; 476 NW2d 112 (1991).
In the first appeal of this case, a panel of this Court held that § 1005 of 1992 PA 163 was constitutional under the Title-Object Clause, that § 1005 placed a condition on defendant’s use of appropriations for community corrections facilities, and that the trial court erred in dismissing plaintiff’s complaint. Kalamazoo, supra at 571-573. Addressing an alternative ground argued by defendant in support of the trial court’s dismissal, this Court also held:
[TJhere is no question in this case that the Legislature expressly intended, through the inclusion of § 1005 in the appropriations act, to require that the Department of Corrections receive the support of a local unit of government before placing a community corrections center. [Id. at 573-574 (emphasis added).]
In support of this holding, the Kalamazoo Court distinguished Dearden v City of Detroit, 403 Mich 257; 269 NW2d 139 (1978), a case in which the Michigan Supreme Court held that the authority of the Department of Corrections was not subject to municipal zoning ordinances passed pursuant to the zoning enabling act. Kalamazoo, supra at 573-574. The Kalamazoo Court reasoned that, unlike the zoning enabling act at issue in Dearden, supra at 266-267, the language of the appropriations act at issue in this case contained an expression of legislative intent to restrict the exclusive jurisdiction of the Department of Corrections. See Kalamazoo, supra at 573-574.
On remand, however, the trial court ruled that the Legislature’s clear intent was to give the Department of Corrections complete control over the placement of its facilities. In so ruling, the trial court relied on Do,arden, supra, and on appropriations bills passed in 1993 and 1994, which contained language somewhat different than that contained in § 1005 of 1992 PA 163. The trial court explained its decision as follows:
Like the case of Dearden v City of Detroit, 403 Mich [257] (1978), the ultimate question is one of legislative intent. Our [Legislature has demonstrated clearly, through revisions in appropriations bills subsequent to that on which plaintiff relies, and subsequent to Dearden, that the Department of Corrections has the power to control siting of its facilities. But for this clear expression of legislative intent, plaintiff may have prevailed; but in the face of it, it cannot.
Plaintiff relies on the above quoted language of the 1992 appropriations bill. Defendant, however, correctly points out that this language has undergone repeated, and significant revision. In 1993 this section was changed to read: “It is the legislature’s intent that the department avoid locating a new community corrections center in a residential neighborhood unless the location ... has the support of the local unit of government.... If (it) does not give its support for that location, (it) shall provide an alternative site ..
Again in 1994 this language was modified further enhancing the discretion of the department. It reads: “It is the legislature’s intent that the department avoid locating a new community corrections center in a residential neighborhood unless the location . . . has the support of the local unity [sic] of government .... If the local unit of government does not give its support for that location (it) shall provide an alternative site that is acceptable to the department.”
This interpretation of the extent of the power to site which the [L]egislature has evidenced it intends to extend to the department through its appropriation process is consistent with the extent of the jurisdiction granted to the department as interpreted by Dearden. The court read that statute (MCL 791.204 [MSA 28.2274]) as “a clear expression of the Legislature’s intent to vest the department with complete jurisdiction over the state’s penal institutions, subject only to the constitutional powers of the executive and judiciary, and not subject in any way to any other legislative act .... This language evidences a legislative intent to nullify the effect of any other statute which is inconsistent with the department’s exclusive jurisdiction over the state’s penal institutions as granted in this act.” (Page 265-266).
Finally, it should be noted in passing that at the final hearing on this matter, no evidence showed that any of the proffered sites were acceptable to the department.
For these reasons, plaintiff’s complaint must be dismissed. Defendant shall prepare an order consistent with this opinion.
By revisiting the issue of legislative intent, ignoring the fact that a panel of this Court had already distinguished Dearden, supra, and ultimately ruling that defendant’s authority to control the placement of the community corrections center was not subject to the express condition contained in § 1005 of 1992 PA 163, the trial court failed to follow the law of the case established in plaintiff’s first appeal.
An exception to the law of the case doctrine applies where there has been an intervening change in the law. Freeman v DEC Int’l, Inc, 212 Mich App 34, 38; 536 NW2d 815 (1995); Bennett, supra at 503. For the exception to apply, the change of law must occur after the initial decision of the appellate court. Freeman, supra at 38. A change of law that occurs after the trial court’s decision but before the appellate court’s initial decision does not prevent application of the law of the case doctrine, because the proper remedy in that instance is either a petition for rehearing before the trial court or an appeal to a higher court. Id. In this case, the trial court on remand relied on portions of the two appropriations acts passed in the years immediately following the passage of 1992 PA 163. However, for two reasons the trial court’s reliance on these subsequent appropriations acts does not trigger the “intervening change in law” exception to the law of the case doctrine.
First, there was no change in the relevant law. Plaintiff’s complaint was based on § 1005 of 1992 PA 163, which, as this Court explained in plaintiff’s first appeal, “places a condition on defendant’s use of appropriations for community corrections facilities.” Kalamazoo, supra at 572. With certain constitutional limitations, the Legislature may place conditions on the receipt of appropriations. See Lewis v State, 352 Mich 422, 430; 90 NW2d 856 (1958); Bd of Agriculture v Auditor General, 226 Mich 417, 425; 197 NW 160 (1924); Kalamazoo, supra at 572. When an appropriation made subject to a constitutionally valid condition is accepted, the condition becomes binding on the party receiving the appropriation. See Regents of the Univ of Michigan v Michigan, 395 Mich 52, 65; 235 NW2d 1 (1975); Bd of Regents of the Univ of Michigan v Auditor General, 167 Mich 444, 451; 132 NW2d 1037 (1911). Accordingly, assuming defendant used funds from the 1993 appropriation (1992 PA 163) for the community corrections facility at issue, defendant was bound by the condition contained in § 1005 of 1992 PA 163, the act at issue, regardless of the language contained in the subsequent appropriations.
Second, the “change” in the language of the appropriations acts referred to in the trial court’s opinion occurred before the initial decision of the appellate court. Plaintiffs first appeal was submitted to this Court on May 10, 1995. Accordingly, the prior panel of this Court either (1) did not consider the appropriations acts passed in 1993 and 1994, or (2) considered them and determined them to be irrelevant. In either event, the prior panel’s determination should not be disturbed. See Bennett, supra at 500-501. Therefore, because the law of the case established in plaintiff’s first appeal is that § 1005 of 1992 PA 163 placed a condition on defendant’s use of appropriated funds for community corrections facilities, see Kalamazoo, supra at 572-574, we hold that the trial court erred in ruling that defendant’s authority to control the placement of the community corrections center at issue was not subject to the condition contained in § 1005 of 1992 PA 163.
Finally, plaintiff contends that it is entitled to the injunctive relief requested in its complaint. However, because the trial court did not make findings of fact with respect to the issue of defendant’s compliance with § 1005 of 1992 PA 163, we cannot order the relief requested by plaintiff. Instead, we remand for proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
Plaintiff also claimed that the proposed community corrections center would be a nuisance. This claim was dismissed without prejudice pursuant to a stipulation by the parties before plaintiff’s first appeal as of right.
We do not address the question whether the Legislature could, if it chooses, resolve the matter by enacting other legislative provisions not at issue here. | [
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Per Curiam.
Defendants appeal as of right the order of default entered against them by Kent Chief Circuit Judge Dennis C. Kolenda in this third-party automobile liability case. The order of default resolved the issues of liability, causation, and serious impairment of a body function in favor of plaintiff Sherry Henry. Following a trial on the issue of damages before Kent Circuit Judge David Soet, plaintiff was awarded damages of $5,452.53 for her pain and suffering. We reverse.
This case arises from an automobile accident that occurred on April 11, 1992. Plaintiff was traveling north on Burlingame in the city of Wyoming and defendant Joshua Burton was traveling south on Burlingame. Plaintiffs vehicle was struck by Burton’s vehicle as Burton attempted to make a left turn from Burlingame onto 36th Street. The vehicle driven by Burton was owned by defendant Daniel Prusak and insured by Allstate Insurance Company. On March 16, 1994, plaintiff brought this action claiming that she suffered a serious impairment of body function as a result of Burton’s negligent operation of the vehicle and, thus, was entitled to damages for pain and suffering. Plaintiff also claimed that pursuant to the civil liability act, MCL 257.401; MSA 9.2101, Prusak, as the owner of the vehicle, was liable for Burton’s negligence. Plaintiff further alleged that Prusak negligently entrusted his vehicle to Burton, who had been a licensed driver for only seven months. Plaintiff Michael Henry claimed loss of consortium.
The case was assigned to Kent Circuit Judge David Soet. Defendants answered the complaint and denied liability and asserted numerous affirmative defenses, including the limitations and tort immunity provisions of the no-fault insurance act, MCL 500.3101 et seq.-, MSA 24.13101 et seq. Defendants also maintained that plaintiff was not entitled to noneconomic damages because she had not suffered a serious impairment of body function or permanent serious disfigurement as required by the tort immunity provisions of the no-fault act. Defendants further claimed that plaintiff failed to mitigate her damages, that her injuries were the result of a pre-existing condition, and that her injuries were the result of her own negligence because she was not wearing a seat belt and was traveling too fast at the time of the accident.
The case proceeded normally through pretrial proceedings and discovery. The case was mediated in January 1995 and resulted in an award in favor of plaintiff in the amount of $12,000. Plaintiffs accepted, and defendants rejected, the award. In January 1996, the parties received a “Notice And Order For Settlement Week Conference” from Judge Kolenda, which provided in pertinent part:
A settlement conference has been scheduled for Tuesday, March 12,1996 at 8:00 A.M. in judge leiber’s jury room — room 352J
THE COURT ORDERS:
1. Counsel and/or the parties shall be prepared to negotiate in good faith effort to reach a fair and reasonable settlement.
2. Clients and persons with authority to settle shall be present at the settlement conference.
3. The parties shall submit a joint settlement conference statement (see attached form), setting forth both the undis puted and disputed facts and issues of the case. The joint settlement conference statement shall be filed with the Court Administrator’s office by February 26, 1996. In addition, the parties shall submit a copy of the mediation summary and evaluation under MCR 2.403 at the same time as the joint settlement conference statement, if mediation has been held.
4. Failure to prepare for, attend, or meaningfully participate in this settlement conference may result in the imposition of sanctions.
It is undisputed that all counsel, parties, and a representative from Allstate attended the settlement conference. The parties communicated with the assistance of a court-appointed attorney facilitator, but no settlement resulted. At the conclusion of the March 12, 1996, conference, the parties completed an “Order After Settlement Conference and Scheduling Notice,” which indicated that settlement had not been reached and that trial was set for June 3, 1996.
On the same day as the settlement conference, an order of default was entered against defendants by Judge Kolenda because Allstate’s representative failed to make an offer to settle at the settlement conference. That order provided that the issues of liability, causation, and serious impairment were resolved in favor of plaintiff and that the June 3, 1996, trial would proceed only with regard to the issue of damages. Defendants filed a “Motion for Reconsideration and/or Relief from Judgment.” Defendants attached the affidavit of Rhonda Williams, the Allstate claims representative who attended the settlement conference. The affidavit stated in pertinent part:
6. That I am knowledgeable about the facts of this case and based upon those facts I have determined that a no cause verdict is a likely result based upon my past experi ence in handling previous cases that have been tried to a jury.
7. That I was ordered to attend a “settlement week conference” on Tuesday, March 12, 1996 at 8:00 A.M. at the Hall of Justice in Grand Rapids, Michigan.
8. That I personally appeared in a timely manner at the settlement conference as ordered.
9. That I was prepared to discuss and explain my position at the settlement conference.
10. That I was prepared to listen to the arguments or positions of the opposing side, the facilitator, or the judge, and to re-evaluate my evaluation of the case if the arguments or positions or others persuaded me to do so.
11. That nothing new was said by anyone at the settlement conference which provided me with any new information about this case that persuaded me that my evaluation was incorrect, and as a result, no money was offered to settle the matter.
Defendants’ motion for reconsideration was denied by Judge Soet without a hearing.
On April 15, 1996, defendants filed a “Motion to Set Aside Default.” The motion and supporting affidavit of defense counsel, Kerr Moyer, indicated that defendants were not aware of the default until the day after it had been entered by the court and that defendants had a meritorious defense. After a hearing, Judge Kolenda denied the motion on the grounds that Allstate had failed to make a settlement offer and that defendants had failed to establish good cause to set; aside the default.
A trial was held with respect to the issue of damages on June 4 through 6, 1996. The jury was instructed to determine plaintiff’s noneconomic damages arising from the accident. Plaintiff asked for $50,000 for past damages and $3,000 to $4,000 a year for future damages. The jury awarded plaintiff $5,000 for pain and suffering, which was reduced by thirty-two percent by her comparative negligence to $3,400. No damages were awarded on plaintiff Michael Henry’s loss of consortium claim. On August 19, 1996, the trial court entered an order awarding plaintiff $3,400 plus interest and costs of $2,052.53, for a total judgment of $5,442.53.
Defendants subsequently filed a motion for a new trial, claiming in part that Judge Kolenda exceeded his authority by entering a default against them. On January 16, 1997, Judge Kolenda denied defendants’ motion and simultaneously issued his opinion concerning the default.
On appeal, defendants argue that Judge Kolenda improperly entered a default against them. A trial court’s authority to enter a default or a default judgment against a party must fall within the parameters of the authority conferred under the court rules. Kornak v Auto Club Ins Ass’n, 211 Mich App 416, 420; 536 NW2d 553 (1995).
Pursuant to MCR 2.401(F), a trial court may direct persons with authority to settle a case, including “the parties to the action, agents of parties, representatives of lienholders, or representatives of insurance carriers” to attend a conference at which meaningful discussion of settlement is anticipated. Default for failure to attend a conference is governed by MCR 2.401(G), which provides in relevant part:
(1) Failure of a parly or the parly’s attorney to attend a scheduled conference, as directed by the court, constitutes a default to which MCR 2.603 is applicable or grounds for dismissal under MCR 2.504(B).
In Kiefer v Great Atlantic & Pacific Tea Co, Inc, 80 Mich App 590; 264 NW2d 71 (1978), this Court upheld entry of a default judgment against the defendant pursuant to the former court rule, GCR 1963, 301.9, where the adjuster from the defendant’s insurance carrier failed to attend a settlement conference as ordered by the trial court. Apparently, before the order was entered, negotiations had reached an impasse due, in part, to the limitation placed upon the authority of the defendant’s attorney to settle. This Court stated that the trial court would be deprived of the authority to compel attendance of those who could conduct meaningful negotiations if the court could not compel attendance of the insurance adjuster. Id. at 594.
In McGee v Macombo Lounge, Inc, 158 Mich App 282, 286-288; 404 NW2d 242 (1987), however, this Court held that the current court rule, MCR 2.401(F), did not authorize default based on the failure of a representative of a party’s insurance carrier to attend a settlement conference. The Court distinguished Kiefer by the fact that the provisions of the former court rule were sufficiently general to permit default for the nonappearance of an insurance representative who was properly ordered to appear at a settlement conference. Id. at 287. In discussing its conclusion that the default provisions of MCR 2.401(F) are specifically limited to the failure of a party or a party’s attorney to attend a conference as ordered by the court, the Court explained:
It is possible that the drafters of the new Michigan Court Rules were concerned about the harshness of a default sanction imposed against a party for the failure or refusal to attend of an insurance carrier, whose actions are not within the direct control of a named party .... [Id. at 288.]
We agree with the analysis and holding in McGee and hereby adopt it. Logic compels us to conclude that because the court rules do not authorize a default against a party based on the failure of a representative of a party’s insurance carrier to attend a settlement conference, the court rules likewise do not authorize default against a party based on the failure of a representative of a party’s insurance carrier to make a settlement offer. Indeed, the default provisions of MCR 2.401(F) are specifically limited to the failure of a party or a party’s attorney to attend a court-ordered settlement conference and make no provision for a default based upon the party’s or the party’s attorney’s failure to make a settlement offer. The entry of a default against defendants was improper because defendants, their attorney, and the Allstate representative appeared at the settlement conference as directed by Judge Kolenda.
The court rules do not authorize entry of a default against a defendant solely on the basis of a nonparty insurance carrier’s refusal to make a settlement offer. The reason for this is apparent. A court cannot “force” settlements upon parties. Woods v Murdock, 177 Mich App 210, 213; 441 NW2d 63 (1989). The practical effect of Judge Kolenda’s sanction of default against a party whose insurance carrier’s representa tive refuses to make an offer to pay money is to force settlement. While we certainly encourage settlement negotiations as an essential and necessary tool for the resolution of disputes and docket control in congested courts, we cannot tolerate the routine practice of entering a default against a party for failure of the party’s insurance carrier to make an offer of settlement. Such a practice deprives a party of due process, the right to assert a defense, and the right to have a jury determine any disputed issues of fact.
The order of default is reversed, the judgment for plaintiff is vacated, and this case is remanded for a new trial on all issues including liability and damages.
The use of the term “plaintiff” refers to Sherry Henry. Michael Henry’s claim arises solely as a result of a claim of loss of consortium.
Although this appeal by the defendants was from the final order of judgment entered by Judge Soet following the jury trial of the question of damages, the sole question raised on appeal involves the propriety of the default judgment entered by Judge Kolenda.
Plaintiff alleged that as a result of the collision she sustained serious injury to her left shoulder and arm, as well as severe myositis and chronic myospasm in and about her neck, back, and lower back, all of which have resulted in an acute cervical sprain and multiple contusions on her body.
If the representative of a nonparty insurance carrier fails to attend, the remedy and sanctions are less clear, but arguably consist of penalties against the offending carrier or representative for contempt of court. | [
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McDonald, J.
The prosecution appeals as of right an order dismissing the charge of possession with intent to deliver 650 grams or more of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), against defendant. This Court previously affirmed the trial court’s dismissal of the charge in an unpublished order. The Michigan Supreme Court vacated this Court’s judgment and remanded for plenary consideration. 455 Mich 863 (1997). We again affirm.
The facts are not disputed. In March 1994, a search of defendant’s residence revealed approximately ten kilograms of cocaine. Following the search, defendant was charged in federal court with conspiracy to distribute or to possess with intent to distribute cocaine, 21 USC 841(a)(1), 846. In June 1994, the Wayne County prosecutor’s office charged defendant with possession with intent to deliver more than 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). The Wayne County charge was based on the same ten kilograms of cocaine as the federal charges. On February 1, 1995, defendant pleaded guilty to the federal charge in the United States District Court for the Eastern District of Michigan. He then filed a motion to dismiss the state charge on double jeopardy grounds in the Detroit Recorder’s Court. The trial court found the prosecution was barred by the Double Jeopardy Clause of the Michigan Constitution.
The prosecutor argues the trial court erred in finding that the Double Jeopardy Clause barred prosecution in this case. The Double Jeopardy Clause of the Michigan Constitution prohibits successive state and federal prosecutions arising out of the same criminal act except where the state and federal interests in prosecuting the defendant are “substantially different.” People v Cooper, 398 Mich 450, 461; 247 NW2d 866 (1976); People v Watt, 210 Mich App 92, 94-95; 533 NW2d 325 (1995), citing People v Gay, 407 Mich 681, 693-695; 289 NW2d 651 (1980). To determine whether the state and federal interests are “substantially different” in a particular case, the following factors are considered: (1) whether the maximum penalties of the statutes involved are greatly disparate, (2) whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction, and (3) whether the differences in the statutes are merely jurisdictional or are more substantive. Cooper, supra at 461; Watt, supra at 95.
In this case, the prosecution concedes that the maximum penalties of the federal and state statutes are similar and that the federal authorities could fully vindicate Michigan’s interests in securing a conviction. However, the prosecution argues that because the state crime for which defendant was charged, possession with intent to deliver cocaine, is distinct from the federal offense to which defendant pleaded guilty, the inchoate crime of conspiracy, the crimes are substantively different. Accordingly, the prosecution concludes that the subsequent state prosecution does not violate Michigan’s Double Jeopardy Clause.
However, we need not decide the constitutional double jeopardy issue because we find MCL 333.7409; MSA 14.15(7409) controls. MCL 333.7409; MSA 14.15(7409) applies only to controlled substances crimes and provides:
If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.
The Michigan Supreme Court has recently explained lhat the Legislature did not merely codify Cooper, supra, when it passed § 7409. The statute operates as a complete bar to successive prosecutions based on the same act, where Cooper allows successive prosecution in those cases where the state’s interest is “substantially different” than that of the jurisdiction where the initial prosecution took place. People v Mezy, 453 Mich 269, 282-284 (Weaver, J.), 286 (Brickley, C.J.), 289 (Levin, J.); 551 NW2d 389 (1996). A defendant bears the burden of proving that prosecution is precluded pursuant to statutory double jeopardy, § 7409. Id. at 283.
In this case, there is no question that the state charge arose out of the same acts as those that formed the basis of the federal conviction, defendant’s acts of possessing the ten kilograms of cocaine at his residence and breaking it up for eventual sale. Although the prosecution correctly states that a conspiracy charge does not constitute the same offense aíi a possession charge, id. at 276, this is not relevant to whether § 7409 is implicated. As we have already discussed, § 7409 bars all successive prosecutions based on the same criminal act. Accordingly, § 7409 precludes prosecution in this case, and dismissal of the charges was proper.
The prosecution also argues defendant’s double jeopardy challenge is waived because he pleaded guilty to the federal charge knowing the Wayne County charge was pending, relying on Wayne Co Prosecutor v Recorder’s Court Judge, 92 Mich App 433, 442; 285 NW2d 318 (1979). However, the exception advocated by the prosecution does not apply to the statutory provision at issue here. Section 7409 does not set forth any exceptions. Instead, it precludes prosecution whenever a charge arises out of the same acts that were the subject of a previous prosecution in either federal court or another state’s court. Accordingly, defendant’s guilty plea does not waive application of § 7409 to bar prosecution in the present case.
Affirmed.
Hood, P.J., concurred.
People v Avila, unpublished order of the Court of Appeals, entered November 12, 1996 (Docket No. 184219).
21 USC 841(a)(1) provides, in relevant part:
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to . . . distribute ... or possess with intent to . . . distribute ... a controlled substance[.]
21 USC 846 provides:
Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
Const 1963, art 1, § 15.
Successive prosecutions by the state and federal governments for the same act do not violate the Double Jeopardy Clause of the Fifth Amendment pursuant to the dual-sovereignty doctrine. Abbate v United States, 359 US 187; 79 S Ct 666; 3 L Ed 2d 729 (1959); Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959).
We specifically decline to address whether defendant’s guilty plea would have waived his double jeopardy challenge if this case were not controlled by § 7409. | [
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Per Curiam.
In this statutory slander of title action, defendants appeal by leave granted the circuit court’s order affirming the district court’s judgment awarding plaintiff $30,000 in attorney fees and $7,500 in exemplary damages and various other orders of the district court. We affirm the award of attorney fees, vacate the award of exemplary damages, and remand in part.
i
Following a six-day bench trial, the district court issued an opinion and order from which we take these facts. Plaintiff and defendant Pat Gitler (defendant) entered into a business relationship during either 1990 or 1991. The parties contemplated that plaintiff and defendant would join together to purchase real estate from mortgage foreclosures and ¡sheriff’s sales. Before their venture, the two were in competition with one another for selected properties and both were experienced in these types of real estate transactions.
During the course of the relationship, a dispute arose over the disbursement of certain funds from 1wo particular pieces of property unrelated to this lawsuit. The parties were unable to resolve their dispute, and defendant caused claims of interest to be filed against seven other properties owned by plaintiff at that time. The claims of interest were filed as a matter of public record with the Oakland County Register of Deeds.
In March 1992, plaintiff filed suit, seeking removal of the claims of interest and monetary and equitable relief for the alleged slander of title. After hearings concerning the dispositive motions, the circuit court, in late June 1992, entered an order discharging the claims of interest, finding that the claims were discharged, released, and held for naught ab initio. The circuit court’s order did not address the remaining slander of title claim, and, after mediation, the case was removed from the circuit court to the district court for trial.
The district court found no cause of action against defendant’s husband, Mel Gitler. The court found that defendant had slandered the title of plaintiff’s seven properties with malicious intent and in wilful and wanton disregard of plaintiff’s rights under circumstances in which she had no cognizable interest in the properties, was aware that it was improper to file such claims of interest, and had been advised not to do so. The court further found that defendant made several public statements that demonstrated her intention to injure plaintiff and its business. The court awarded plaintiff $30,000 in attorney fees and $7,500 in exemplary damages.
n
Defendants first argue that exemplary damages are not available under the slander of title statute, MCL 565.108; MSA 26.1278. This is an issue of first impression, which we review de novo. Welch Foods, Inc v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995).
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). If reasonable minds can differ concerning the meaning of a statute, judicial construction is appropriate. Heinz, supra. The court must look to the object of the statute and to the harm it is designed to remedy and must apply a reasonable construction that best accomplishes the purpose of the statute. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994).
The language of a statute should be read in light of previously established rules of the common law, including common-law adjudicatory principles. Nummer v Dep’t of Treasury, 448 Mich 534, 544; 533 NW2d 250 (1995). Well-settled common-law principles are not to be abolished by implication, and when an ambiguous statute contravenes common law, it must be interpreted so that it makes the least change in the common law. Marquis, supra. Conversely, legislation must be interpreted in conformance with its express terms, even if in conflict with the common law. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). Statutes in derogation of the common law are narrowly construed. Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 507-508; 309 NW2d 163 (1981).
MCL 565.108; MSA 26.1278, which is part of the marketable record title act, MCL 565.101 et seq.) MSA 26.1271 et seq., provides:
No person shall use the privilege of filing notices hereunder for the purpose of slandering the title to land, and in any action brought for the purpose of quieting title to land, if the court shall find that any person has filed a claim for that reason only, he shall award the plaintiff all the costs of such action, including such attorney fees as the court may allow to the plaintiff, and in addition, shall decree that the defendant asserting such claim shall pay to plaintiff all damages that plaintiff may have sustained as the result of such notice of claim having been so filed for record.
In Michigan, slander of title claims have both a common-law and statutory basis. Slander of title has been recognized at common law since at least 1900 as a remedy for malicious publication of false statements that disparage a plaintiffs right in property. See 2 Cameron, Michigan Real Property Law (2d ed), Slander of Title, § 30.18, pp 1461-1462, and cases cited therein, including Harrison v Howe, 109 Mich 476; 67 NW 527 (1896), and Michigan Nat’l Bank-Oakland v Wheeling, 165 Mich App 738; 419 NW2d 746 (1988).
To establish slander of title at common law, a plaintiff must show falsity, malice, and special damages, i.e., that the defendant maliciously published false statements that disparaged a plaintiff’s right in property, causing special damages. See Sullivan v Thomas Organization, PC, 88 Mich App 77, 82; 276 NW2d 522 (1979); Michigan Real Property Law, supra at 1461; 50 Am Jur 2d, Libel and Slander, § 554, p 847. Pecuniary or special damages must be shown in order to prevail on a claim. Id., citing Patten Corp v Canadian Lakes Development Corp, 788 F Supp 975 (WD Mich, 1991); anno: What constitutes special damages in action for slander of title, 4 ALR4th 532, § 2, pp 536-537 (noting that “the existence of special damages is an element of a cause of action for slander of title”).
The same three elements are required in slander of title actions brought under MCL 565.108; MSA 26.1278. GKC Michigan Theatres, Inc v Grand Mall, 222 Mich App 294, 301; 564 NW2d 117 (1997). But see Stanton v Dachille, 186 Mich App 247, 262; 463 NW2d 479 (1990) (stating that “the elements of slander of title are falsity of statement and malice”).
In Michigan, special damages have been recognized to include litigation costs, see Chesebro v Powers, 78 Mich 472; 44 NW 290 (1889); impairment of vendibility, see Sullivan, supra at 85, and loss of rent or interest, Harrison, supra. See also 2 Stockmeyer, Michigan Law of Damages (2d ed), §§ 16B.30-16B.35, pp 16B.27-16B.29, and 50 Am Jur 2d, Libel and Slander, § 560, pp 853-855.
We note that there are only two reported slander of title cases in Michigan brought under MCL 565.108; MSA 26.1278, Stanton, supra, and GKC Michigan Theatres, supra Exemplary damages have not been awarded in any Michigan slander of title case, either common-law or statutory. However, exemplary damage awards in intentional tort cases have been considered proper if they compensate a plaintiff for the humiliation, sense of outrage, and indignity resulting from injuries maliciously, wilfully, and wantonly inflicted by the defendant. Kewin v Massachusetts Mut Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980) (citing cases involving assault and battery and libel). The theory of these cases is that the reprehensibility of the defendant’s conduct both intensifies the injury and justifies the award of exemplary damages as compensation for the harm done to the plaintiff’s feelings. Id.
Nonetheless, where a cause of action is statutorily based, there must be a basis in the statute for awarding exemplary damages, i.e., either an express provision or a legislative history from which one could infer “a legislative intent to provide such an unusual remedy.” Eide v Kelsey-Hayes Co, 431 Mich 26, 54-55; 427 NW2d 488 (1988) (Griffin, J. ); Peisner v Detroit Free Press, Inc, 421 Mich 125, 134-135, n 10; 364 NW2d 600 (1984). We conclude there is no such statutory basis here; there is neither an express provision nor a legislative history from which one could infer a legislative intent to provide exemplary damages. In enacting other statutes, the Legislature has included words expressly providing for exemplary damages where it has intended that they be recoverable. See Eide, supra at 55, and statutes there cited; see also n 3, supra.
The Legislature having failed to include such language in this instant statute, we conclude that exemplary damages are not properly awarded under MCL 565.108; MSA 26.1278, and we vacate the trial court’s award of exemplary damages in the amount of $7,500.
m
Defendants next argue that plaintiff is only entitled to attorney fees incurred up to the time the cloud on its titles was removed, which occurred when the circuit court entered an order discharging the claims of interest in late June 1992. Plaintiff argues that there is nothing in the statute’s language limiting the attorney fees the court may award.
We reject defendants’ argument. The plain language of the statute does not limit the award of attorney fees and grants the court discretion in awarding such fee;s; the statute states that “if the court shall find that any person has filed a claim for that reason [to slander the title to land] only, he shall award the plaintiff all the costs of such action, including such attorney fees as the court may allow.” The statute contemplates recovery of attorney fees, at the court’s discretion, expended in actions for slander of title, not simply to quiet title. Further, even though the claims of interest were discharged in late June 1992, the trial of the slander of title claim was not held until November and December of 1993. And, while plaintiff did not prevail on the separate damage issues at trial, it was entitled to proceed to trial of the slander of title claim to recover the attorney fees and costs incurred as special damages and in seeking to recover these amounts. The trial court, in its discretion, awarded less than half of the attorney fees plaintiff requested. Under these circumstances, we conclude that the trial court did not abuse its discretion in its award of attorney fees.
IV
Defendants next argue that they are entitled to costs and attorney fees under the offer of judgment rule, MCR 2.405, because the average offer of $14,250 was more than the adjusted verdict once the improper exemplary damages and attorney fees are deleted and because the trial court found no cause of action against Mel Gitler.
In August 1993, defendants jointly offered to stipulate to entry of judgment in the amount of $3,500. Plaintiff rejected defendants’ offer and counteroffered, stating it would agree to entry of judgment in the amount of $25,000. Defendants did not respond, thus rejecting plaintiff’s counteroffer. Trial began on November 8, 1993. There is no dispute that the average offer was $14,250. The verdict as determined by the district court was for $37,500 and the adjusted verdict was $45,290.64.
We have vacated only the exemplary damage award of $7,500 and have upheld the award of attorney fees of $30,000 under the statute, thus the average offer remains less than the adjusted verdict.
Concerning Mel Gitler individually, defendants’ brief on appeal simply asserts that he is entitled to sanctions because plaintiff did not recover against him. There is no discussion or analysis of the application of MCR 2.405 in multiple party situations. Considering his failure to support his argument, and because defendants submitted a joint offer of judgment, we conclude that the trial court did not err in considering the aggregate recovery in determining Mel Gitler’s entitlement to sanctions under the rule. J C Building Corp II v Parkhurst Homes, Inc, 217 Mich App 421, 424-426; 552 NW2d 466 (1996).
v
Defendants next argue that the district court erred in awarding plaintiff prejudgment interest, in that the verdict for plaintiff was for costs and attorney fees. We review de novo an award of prejudgment interest under MCL 600.6013; MSA 27A.6013. Beach v State Farm Mut Automobile Ins Co, 216 Mich App 612, 623-624; 550 NW2d 580 (1996). The prejudgment interest statute is remedial and to be construed liberally in favor of the plaintiff. Phinney v Perlmutter, 222 Mich App 513, 541; 564 NW2d 532 (1997). The purpose of prejudgment interest is to compensate the prevailing party for expenses incurred in bringing actions for money damages and for any delay in receiving such damages. Phinney, supra at 541.
The slander of title statute provides in pertinent part:
[I]n any action brought for the purpose of quieting title to land, if the court shall find that any person has filed a claim for that reason [of slandering the title to land] only, he shall award the plaintiff all the costs of such action, including such attorney fees as the court may allow to plaintiff, and in addition, shall decree that the defendant asserting such claim shall pay to plaintiff all damages that plaintiff may have sustained as the result of such notice of claim having been so filed for record. [MCL 565.108; MSA 26.1278.]
Litigation costs, including attorney fees, have been held to constitute special damages recoverable in slander of title cases. Sullivan, supra at 85; Chesebro, supra at 479; see also anno, supra, 4 ALR4th, § 9, pp. 560-562.
In Liddell v DAIIE, 102 Mich App 636, 652-653; 302 NW2d 260 (1981), this Court held that prejudgment interest may be granted on an award of costs and attorney fees under the no-fault act for unreasonable refusal to pay or delay in making payments. In Harvey v Gerber, 153 Mich App 528, 530; 396 NW2d 470 (1986), this Court held that prejudgment interest under MCL 600.6013; MSA 27A.6013 does not apply to attorney fees awarded under the Michigan Consumer Protection Act (mcpa), because the mcpa allows for the recovery of “reasonable attorney fees” in addition to damages, thus sufficiently defraying the costs of litigation. The Harvey Court distinguished Liddell, and no-fault cases generally, on the basis that “under that act attorney fees are imposed only in limited circumstances to penalize recalcitrant insurers for unreasonably refusing to pay benefits.” In Janda v Detroit, 175 Mich App 120, 131; 437 NW2d 326 (1989), this Court held that the award of interest on attorney fees is discretionary.
Because the instant statute is similar to the no-fault act in that it provides for attorney fees only in the limited circumstance where the claim of interest is filed solely for the purpose of slandering title, and because the trial court here expressly found that defendant acted with malicious intent, in wilful and wanton disregard of plaintiff’s rights, we conclude that the trial court did not abuse its discretion in awarding prejudgment interest on its award of attorney fees under the statute. However, because we have vacated the award of exemplary damages, remand is necessary for recalculation of prejudgment interest.
VI
Defendants’ final argument is that they are entitled to an evidentiary hearing with respect to the reasonableness of attorney fees awarded during the contempt proceedings because the award of $12,500 was clearly excessive and without a factual basis. Defendants argue that the trial court failed to consider the issue of reasonableness and simply approved plaintiff’s requests without conducting an inquiry. Defendants further argue that on remand the case be assigned to a different judge because of the trial judge’s personal prejudice against them.
Plaintiff argues that defendants received adequate evidentiary hearings with respect to all of the attorney fees awarded for contempt sanctions and that, at three different, proceedings, the trial court weighed un rebutted evidence presented by plaintiff’s counsel and made factual findings concerning the reasonableness of the attorney fees plaintiff incurred as a result of defendant’s filing of false liens in violation of the court’s contempt order.
We review an award of attorney fees for abuse of discretion. Petterman v Haverhill Farms, 125 Mich App 30, 33; 335 NW2d 710 (1983). In Wilson v General Motors Corp, 183 Mich App 21, 42-43; 454 NW2d 405 (1990), this Court observed:
Where the opposing party challenges the reasonableness of the fee requested, the trial court should inquire into the services actually rendered prior to approving the bills of costs.....Although a full-blown trial is not necessary, an evidentiary hearing regarding the reasonableness of the fee request is.
In Howard v Canteen Corp, 192 Mich App 427, 437; 481 NW2d 718 (1992), this Court further noted:
Where attorney fees are to be awarded, the court must determine the reasonable amount of fees according to the nonexclusive list of factors and guidelines set forth in Wood v DAIIE [413 Mich 573, 588; 321 NW2d 653 (1982)]. While the court is not required to detail its findings regarding each specific factor, it is required to make findings of fact with regard to the attorney fee issue.
The most useful starting point for determining the amount of a reasonable attorney fee is the number of hours reasonably expended on the case multiplied by a reasonable hourly rate. The party seeking the fee bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.
In Howard, the trial court granted attorney fees after the plaintiffs counsel had submitted affidavits and other documentary evidence in support of her requested fees and oral arguments had been heard. In remanding for an evidentiary hearing regarding the issue of attorney fees, is court instructed the court to allow the plaintiffs counsel to present any evidence regarding her fee request and to allow the defendants the opportunity to challenge that evidence and directed the court to consider the Wood factors in making findings regarding the actual time spent on the case and in determining a reasonable attorney fee.
Similarly, in Petterman, supra, this Court remanded for an evidentiary hearing regarding the reasonableness of the attorney fee as a result of the trial court having accepted an itemized bill for attor ney fees on its face without actually considering the issue of reasonableness.
In the instant case, the district court did not hold Etn evidentiary hearing regarding the attorney fee issue at either contempt hearing. At the first contempt hearing, the district court adopted plaintiff’s c ounsel’s oral representations of the number of hours expended (I5V2) and granted fees based on the hourly rates defense counsel quoted for himself and an associate, (9V2 hours at $200 an hour for lead counsel and 6 hours for an associate at $100 an hour), defense counsel’s objections notwithstanding. At the second contempt hearing, the district court granted plaintiff’s request for $5,000 in attorney fees, with no inquiry on the record into the reasonableness of the fee request, notwithstanding defense counsel’s challenge to the fee award. At the third contempt hearing, the district court apparently ordered the payment of a further $5,000 in attorney fees without any basis for that award being placed on the record.
Under these circumstances, we remand for an evidentiary hearing to determine reasonable attorney fees. The trial court must consider the factors set forth in Wood v DAIIE, supra, in making its factual findings regarding the actual time spent on the case and determining a reasonable attorney fee.
We do not find it necessary to assign this case to a different judge on remand. A party who challenges a judge on the basis of bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality. In re Forfeiture of $1,159,420, 194 Mich App 134, 151; 486 NW2d 326 (1992). An actual showing of personal prejudice is required before a trial judge will be disqualified. Id.; see also People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986). Although defendants claim that the district court judge should be disqualified under MCR 2.003(B)(1) because of his personal prejudice against defendants, the record fails to show actual bias or prejudice on the part of the district court judge.
We affirm the trial court’s award of $30,000 in attorney fees, reverse the award of $7,500 in exemplary damages, and remand for a recalculation of prejudgment interest and for an evidentiary hearing to determine reasonable attorney fees, if any, to be awarded as a result of the contempt hearings.
Plaintiff, a Michigan copartnership, is a private investment firm that acquires, renovates, and resells residential and commercial properties obtained at foreclosure sales by the county sheriff.
Although aggrieved by only one of the rulings appealed, Mel Gitler is included generally as an appellant in all filings in this Court.
We note that this issue is not likely to arise again because future slander of title suits will likely be brought under MCL 565.25; MSA 26.543 and MCL 600.2907a; MSA 27A.2907a, which took effect March 31, 1997, while this appeal was pending. MCL 600.2907a; MSA 27A.2907a, expressly permits the award of exemplary damages to an owner of property for “encumbering property through the recording of a document without lawful cause with intent to harass or intimidate any person” in violation of MCL 565.25; MSA 26.543.
In Stanton, this Court affirmed the lower court’s grant of summary disposition for the plaintiffs where the defendants failed to show that the pL-dntiffs’ claims of interest were filed with malice and an intent to injure the defendants. 186 Mich App 262-263.
In GKC, this Court reversed the circuit court’s grant of summary disposition for the defendant on the basis that issues of material fact remained regarding whether the filing of the invalid notice of termination wiis a substantial factor in the purchaser’s decision to delay the sale of the property and held that the substantial factor test set forth in 3 Restatement Torts, 2d, § 632, p 352, is the appropriate test to determine whether causation exists in a slander of title claim. 222 Mich App 301-304.
Both Stanton and GKC, supra, involved summary disposition and issues not pertinent here. Stanton stated that “[t]he elements of slander of title are falsity of statement and malice,” citing one case that involved a common-law slander of title claim. 186 Mich App 262. In GKC, a case decided during the pendency of this appeal, this Court stated: “In order to prove its slander of title claim, plaintiff must establish that defendant ‘maliciously published false matter disparaging [plaintiff’s] title, causing it special damages.’ ” 222 Mich App 301.
j\ssuming that special damages are a required element in a statutory slander of title action, plaintiff established special damages in the form of attorney fees expended to remove the cloud from the titles. See Sullivan, supra at 85; GKC, supra at 301.
The majority opinion agreed with Justice Griffin’s partial dissent with respect to the question whether exemplary damages could be awarded separate from actual damages for violations of the Civil Rights Act. 431 Mich 28-29, 38.
For cases filed on or after October 1, 1993, MCL 600.6013(6); MSA 27A6013 was amended to provide in pertinent part:
Interest under this subsection shall be calculated on the entire amount of the money judgment, including attorney fees and other costs. | [
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Young, Jr., J.
Appellant Rosena Brown, as personal representative of the estate of Ryan Terrell Brown, deceased, appeals by leave granted from the circuit court’s denial of leave to appeal from the decision of the probate court assessing sanctions in the amount of $1,584.12 against the estate’s attorney pursuant to MCR 2.114. The probate court ruled that the estate’s attorney violated the court rules by obtaining discovery before a “civil action” was commenced in accor dance with MCR 5.101(C). We disagree and reverse the probate court’s order.
i
Appellant Rosena Brown’s son, Ryan, was killed in an automobile accident on January 17, 1995. In addition to the decedent’s vehicle, two others were involved in the accident, one of which was driven by appellee Loretta Townsend. Mrs. Brown retained attorney Marc Lipton to represent the decedent’s estate. Lipton filed a petition in the probate court to have Mrs. Brown and her husband appointed as co-personal representatives, which petition the court granted. Because a possible cause of action arising from the accident constituted the estate’s principal asset, Lipton began to investigate the accident to determine whether any claims for wrongful death could be pursued. In a letter to Townsend, Lipton stated in part:
Please be advised that we represent the estate of Ryan Brown, deceased, who was injured and killed in an automobile accident with you and another vehicle in January of 1995.
Would you please either contact my office so that I can discuss this matter with you or turn this letter over to the insurance company which insured your vehicle at the time of the accident!?]
Townsend, in turn, gave the letter to her insurance company, Citizen’s Insurance Company of America. Citizens disputed Townsend’s liability.
Lipton sent another letter to Townsend requesting that she appear at his office to give a statement regarding her knowledge of the facts of the accident. A subpoena signed by Lipton was attached to the let ter. Townsend appeared at Lipton’s office as directed and, without benefit of an attorney, gave a recorded statement that the probate court later characterized as a deposition. Timothy Van Dusen, an attorney who was eventually retained to represent Townsend, moved for the imposition of sanctions under MCR 2.114 on the ground that Lipton’s conduct was in violation of the court rules. The probate court agreed and issued a written opinion stating, in relevant part:
[T]he court finds that Mr. Lipton, as counsel for the estate, failed to comply with MCR 5.101. More particularly, the estate failed to file a verified petition within the parameters of MCR 5.101(c) [sic]. Moreover, as there was no contested case or civil action instituted by the estate in the probate or circuit court, the issuance of a subpoena to Ms. Townsend was in violation of MCR 2.305.
The court subsequently ordered Lipton personally to pay Townsend’s costs and attorney fees in the amount of $1,584.12. The circuit court denied Mrs. Brown’s application for leave to appeal that decision; we granted leave to appeal.
n
This controversy involves the relationship of (and apparent conflict between) the general rules contained in chapter 2 of the Michigan Court Rules and the special rules applicable to the probáte court contained in chapter 5. The probate court’s determination that the “deposition” undertaken by Lipton was unauthorized under the court rules turned on its conclusion that the commencement of a probate “proceeding” was not the commencement of an “action” within the meaning of MCR 2.302(A)(1). Mrs. Brown argues that the probate court erred in imposing sanctions against Lipton because the court rules, as specifically modified by the rules applicable to the probate court, expressly permit the use of discovery once a proceeding has been commenced under MCR 5.101(B). We believe that Mrs. Brown’s construction of the relevant court rules is sound.
Generally, we review for clear error a trial court’s factual finding that a pleading or other paper was signed in violation of MCR 2.114. Contel Systems Corp v Gores, 183 Mich App 706, 711; 455 NW2d 398 (1990). Here, however, the probate court’s decision to impose sanctions was based on its interpretation of the relevant court rules, creating a question of law that we review de novo on appeal. Blue Cross & Blue Shield of Michigan v Eaton Rapids Community Hosp, 221 Mich App 301, 314; 561 NW2d 488 (1997).
The construction of a court rule is subject to the same basic principles that govern statutory interpretation. St George Greek Orthodox Church of Southgate v Laupmanis Associates, PC, 204 Mich App 278, 282; 514 NW2d 516 (1994); Mahrle v Danke, 216 Mich App 343, 348; 549 NW2d 56 (1996). If the plain and ordinary language of a court rule is clear, judicial construction is neither necessary nor permitted. Michigan Millers Mut Ins Co v Bronson Plating Co, 197 Mich App 482, 490; 496 NW2d 373 (1992), aff’d 445 Mich 558; 519 NW2d 864 (1994).
MCR 2.302(A)(1) states that, “[a]fter commencement of an action, parties may obtain discoveiy by any means provided in subchapter 2.300 of these rules.” (Emphasis added.) Subchapter 2.300 authorizes the issuance of a subpoena for the taking of testimony by deposition. MCR 2.305. Important to this case is MCR 2.101, which provides that “[t]here is one flam of action known as a ‘civil action,’ ” MCR 2.101(A), and which further provides that a “civil action is commenced by filing a complaint with a court.” MCR 2.101(B). It is Townsend’s position that, because a probate proceeding, and not a civil action, had been commenced, the estate, through Lipton, was not authorized to issue a deposition subpoena.
Townsend’s argument is dependent upon the apparent conflict between MCR 2.101 and MCR 5.101. MCR 5.101(A) provides that, in the probate court, there are two forms of “action,” a “proceeding” and a “civil action,” while subsection (B) provides that a proceeding is commenced by the filing of a petition in the probate court. Thus, in contrast with chapter 2’s general rules pertaining to civil proceedings, the specialized court rules pertaining to the probate court recognize a petition-initiated proceeding as a proper form of action. The apparent conflict between MCR 2.101 and MCR 5.101 is resolved by the basic rule of statutoiy construction requiring that, when two statutory provisions conflict and one is specific while the other is only generally applicable, the specific provision prevails. Nat’l Center for Mfg Sciences, Inc v Ann Arbor, 221 Mich App 541, 549; 563 NW2d 65 (1997); cf. MCR 1.103 (“Rules stated to be applicable only in a specific court or only to a specific type of proceeding apply only to that court or to that type of proceeding and control over general rules.”) Additionally, MCR 2.001 states: “The rules in this chapter govern procedure in all civil proceedings in all courts . . . except where ... a rule applicable to a specific court or a specific type of proceeding provides a different procedure.”
Clearly, in the context of probate court matters, MCR 5.101(A) and (B) are more specific and specialized rules than their general counterparts in chapter 2. Thus, an “action” sufficient to authorize the use of a deposition subpoena in the probate court includes a properly commenced proceeding. Our conclusion is further buttressed by the admonition of MCR 5.001(A) that procedures in the probate court are “governed by the rules applicable to other civil proceedings, except as modified by the rules in this chapter.” (Emphasis added.) Because MCR 5.101 is controlling over MCR 2.101 in the probate court, we reject Townsend’s argument that discovery is precluded in the probate court unless a civil action has been commenced according to MCR 2.101(A).
Townsend also makes a number of policy-based objections to the practice of issuing deposition subpoenas and engaging in other types of discovery in probate proceedings when a contested civil action has not been commenced. However, the history of the probate rules reveals that discovery has always been permitted in probate court proceedings, including the period when MCR 5.101 provided that the only form of action in the probate court was a “proceeding.” Because we conclude that the court rules authorized the issuance of the subpoena at issue, Townsend must seek relief from the Supreme Court in the form of further amendment of the court rules to vindicate the policy concerns she has raised.
Accordingly, we reverse the order of the probate court imposing sanctions against Lipton under MCR 2.114.
Reversed.
Townsend challenges our jurisdiction over this appeal. Because Mrs. Brown’s application for leave to appeal from the probate court’s decision was not filed in the circuit court within twenty-one days from the entry of the order, see MCR 7.103(B)(1), an affidavit explaining the delay should have been presented. MCR 7.103(B)(6). However, contrary to Townsend’s assertion, the circuit court’s failure to require the affidavit did not deprive the circuit court, or this Court, of jurisdiction to decide Mrs. Brown’s appeal. See People v Flowers, 191 Mich App 169, 172-173; 477 NW2d 473 (1991).
MCR 5.101 was amended by the Supreme Court in 1992. See 439 Mich clxii. According to the staff comment to MCR 5.101, the amendment was made “to deal with cases brought under the expanded jurisdiction of the Probate Court granted by 1989 PA 69.” See also In re Gordon Estate, 222 Mich App 148, 154-155; 564 NW2d 497 (1997). | [
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Per Curiam.
Defendant, State Farm Fire & Casualty Company, appeals as of right the portion of a judgment of summary disposition of September 4, 1996, granting summary disposition for plaintiff, Brian Salesin, denying summary disposition for State Farm, and awarding attorney fees to Salesin. Salesin appeals as of right the portion of the judgment denying class-action certification and the portion of the judgment that limited the award of attorney fees to $2,000 and costs to $2,000. We consolidated the appeals by an order entered December 11, 1996. We affirm the grant of summary disposition for Salesin, affirm the denial of summary disposition for State Farm, and remand to the trial court for a proper consideration of class-action certification and attorney fees and costs.
I. BASIC FACTS
State Farm insured Salesin under a homeowner’s ‘ extra” (presumably meaning a “full replacement”) insurance policy. On September 5, 1994, Salesin suffered water damage to his home from a leaking washing machine hose and made a claim. The State Farm insurance policy provides:
We will pay the cost to repair or replace buildings under Coverage A and other structures under Dwelling Extension, subject to the following:
(1) until actual repair or replacement is completed, we will pay the actual cash value of the damage to the buildings or other structures, up to the policy limits, not to exceed the replacement cost of the damaged part of the building or other structures, for equivalent construction and use on the same premises;
(2) you must make claim within 180 days after the loss for any additional payment on a replacement cost basis.
Any additional payment is limited to that amount you actually and necessarily spend to repair or replace the damaged buildings or other structures with equivalent construction and for equivalent use on the same premises.
The State Farm insurance policy contains a provision covering circumstances in which it and the policyholder fail to agree on the amount of the loss. Under this provision, either party can demand that the amount of the loss be set by appraisal by making a written demand for such an appraisal. Following such a demand, each party must select a competent, independent appraiser and notify the other party of this appraiser’s identity; the two appraisers must then select a competent impartial umpire. If the parties are unable to agree upon an umpire, either party may ask a judge of a court of record to select the umpire. The appraisers are then to set the amount of loss. If the appraisers agree, this amount becomes the amount of loss; if the appraisers do not agree on the amount of loss within a reasonable time, they must submit their differences to the umpire and a “[wjritten agreement signed by any two of these three shall set the amount of the loss.”
On or about November 8, 1994, State Farm sent Salesin an estimate, a Property Claim Agreement Form, and a check in the amount of $20,778.75. According to the transmittal letter, State Farm calculated this amount as follows:
As we agreed, the total repair cost including the ceramic tile floor in the kitchen came to $27,908.98. From the above figure was subtracted $1,048.44 in betterment and $5,581.79 in profit and overhead for a total amount withheld of $6,630.23. Please note, total settlement is based on actual amount incurred.
State Farm apparently made this calculation according to its internal Operation Guide. This document provides:
c. Actual Cash Value Settlements
1. Calculation of Actual Cash Value
Actual cash value (acv) should be determined consistent with local case law or statute. When not in variance with case law, acv is defined as replacement cost less depreciation. Operation Guide 75-50 provides specific guidelines.
2. Acv and General Contractor Overhead and Profit
General contractor overhead and profit is not a component of actual cash value since the cost is not actually and necessarily incurred unless the property is repaired or restored by means of a general contractor. Under replacement cost contracts, general contractor overhead and profit is payable if necessarily incurred at the completion of repairs. Sometimes a policyholder may require replacement cost benefits prior to completion of the job. This may become necessary because the policyholder requires the funds to make a timely payment to the repair firm. Such requests should be handled on a case by case basis. A claim representative has the latitude to issue replacement cost benefits prior to completion of repairs when the insured presents an acceptable signed contract to repair the damage or when the repairs are underway. General contractor overhead and profit may also be paid at this point if it is clear that it is being incurred.
3. Overhead and Profit when an insured does the work.
Some insureds will chose to do their own work. It will be our positions [sic] that the principle of indemnity should prevent an insured from profiting from their own losses. Insureds should be compensated for their labor at a reasonable negotiated rate and for purchase of materials. In addition, the insured should be compensated for any overhead expenses necessarily incurred.
4. Amounts spent exceeds the Property Claim Agreement allowance.
There will be cases where the amount actually and necessarily expended will exceed the amount shown on the Property Claim Agreement. The claim representative must use good judgment in determining the reason for this discrepancy. If there is an error in our estimate, or hidden damages were found, consideration should be given to further payment. The situations can be minimized if the claim representative instructs the insured to call him/her as soon as errors are noted and before the work is done, so any appropriate changes can be made. [Emphasis in original.]
State Farm estimated a total replacement cost of $27,908.98. From this State Farm deducted $1,048.44 for depreciation (inexplicably called “betterment” in the transmittal letter) for a net, after subtracting the $500 deductible, of $26,360.54. State Farm then further deducted, apparently according to its Operation Guide, $5,581.79 for contractor’s overhead and profit (deducting ten percent of the total replacement cost for overhead and a further ten percent for profit; twenty percent of $27,908.98 being $5,581.79) for a net payment to Salesin of $20,778.75. According to State Farm, this amount represents the “actual cash value of the damage” pursuant to § 1.3(c)(1) of its policy. In fact, Salesin only expended $14,451.00 on the repairs.
H. PROCEDURAL HISTORY
This case, in its early stages, has a peculiar procedural history. According to Salesin, he argued that he never received the full actual cash value of the damage and demanded that the dispute be submitted to appraisal proceedings, but State Farm refused to submit to appraisal. On February 3, 1995, Salesin sued, solely on his own behalf, to compel State Farm to submit to appraisal and to appoint an umpire. On June 19, 1995, Salesin filed a motion to amend the complaint and offered an amended complaint that stated this case as a class action on behalf of himself and “all purchasers of property insurance with [State Farm] who suffered a covered building loss, and [State Farm] withheld from an actual cash value settlement money it claimed was for contractor overhead and/or profit.” On July 12, 1995, the trial court granted Salesin leave to file and serve the amended complaint.
In his amended complaint, Salesin sought: (a) a declaration that the “withholding of funds from an actual cash value settlement of a building claim as ‘contractor profit and/or overhead’ is contrary to the clear language of the contract and Michigan law”; (b) a refund to all members of the class of all funds withheld from the actual cash value payment “and all other funds to which they may be entitled”; (c) costs and a reasonable attorney’s fee with interest. On January 22, 1996, following a scheduling conference, the trial court entered a scheduling order. This scheduling order (a) set April 24, 1996, as the latest date for filing of motions for summary disposition, presumably with supporting briefs, and May 8, 1996, as the latest date for filing of reply briefs, (b) provided that a hearing with respect to these motions be held sometime between May 8 and June 3, 1996, and (c) stated, “The deadline for plaintiff’s motion for class certification is extended to a date to be set by the court.”
On May 21, 1996, the trial court heard oral arguments on the parties’ motions for summary disposition under MCR 2.116(C)(10) (no genuine issue as to any material fact and the moving party is entitled to judgment or partial judgment as a matter of law). With respect to class action certification, Salesin’s attorney made the following statement at the outset:
Mr. Fabian: Okay, very briefly. As you will recall, the parties have stipulated and the Court has presented an order providing that the issue of certification was going to be reserved until such time as the Court made its determinations on the merits as to whether or not there was in fact a proper Plaintiff and then would determine, assuming that Plaintiffs recovered, whether or not it was an appropriate class for certification.
After summarizing the positions of the parties and hearing oral argument, the trial court rendered its opinion from the bench. The trial court stated the issue as follows:
At issue before this Court is whether the Defendant has a right, under the so called guaranteed replacement cost policy, to deduct 20 percent for contractor’s profit and overhead charges, in addition to the 10 percent deduction for depreciation when it pays the actual cash value to its insured.
The trial court, apparently relying on McMillan v Auto Club Ins Ass’n, 450 Mich 557; 543 NW2d 920 (1995), found that in interpreting an insurance contract, a court must (a) uphold the clear meaning of the provision in the absence of an ambiguity, (b) where two constructions can be placed on a policy, adopt the one most favorable to the policyholder, and (c) examine whether the policyholder, in reading the contract language, is led to a reasonable expectation of coverage. The trial court then held:
[T]he total amount necessary without a 20 percent deduction, must be paid to the policy holder as the total deduction is not authorized or contemplated by — in Defendant’s policy of insurance.
Therefore, Plaintiff’s motion for summary disposition is granted. Defendant’s Motion for Summary Disposition is denied. I also advise the parties that I’m denying a class action certification. Thank you.
Thank you all very much for your patience today.
Mr. Smith: Thank you, Your Honor. Appreciate th[e] Court’s attention.
Mr. Fabian: Your Honor, I know we scheduled a status conference for a week from Monday to deal with that issue of certification.
The Court: I know.
Mr. Fabian: I know we haven’t addressed that issue yet with the Court.
The Court-. I know, but I’m satisfied that this matter should not be addressed as a class action suit and I am denying that request.
In its judgment, incorporating these holdings, the trial court: (a) granted Salesin’s motion for summary disposition, declaring that State Farm “has improperly deducted 20% of the replacement cost loss from payment of actual cash value building claims”; (b) denied State Farm’s motion for summary disposition; (c) ordered that the action not be certified as a class action; (d) ordered that Salesin be granted judgment against State Farm “in the sum of $5,581.79, plus costs in the sum of $2,000, attorney’s fees in the sum of $2,000, and 12% interest pursuant to MCL 600.6013(5) in the sum of $1,192.53, for a total judgment against [State Farm] in the sum of $10,774.32.”
m. THE FAILURE TO ARBITRATE
Although not raised as an issue by the parties, we note the arbitration procedure provided for in the insurance policy was not used in this case. As was indicated previously, the insurance policy included a provision that, if the parties failed to agree on the amount of a loss, then either party could invoke a procedure where each party selected an independent appraiser and an umpire would be selected. The agreement of any two of these three individuals would ultimately determine the amount of the loss. Clearly, therefore, the insurance policy provides that disputes over the amount of a loss may be submitted to arbitration. Indeed, this case began as a suit by Salesin to compel State Farm to take part in the arbitration procedure.
However, a party may waive the right to have a matter decided by arbitration:
A party may waive its right to arbitration, and each case must be decided on the basis of its individual facts. However, waiver of a contractual right to arbitration is not favored. A party arguing there has been a waiver of this right bears a heavy burden of proof. The party must demonstrate knowledge of an existing right to compel arbitration, acts inconsistent with the right to arbitrate, and prejudice resulting from the inconsistent acts. [Burns v Olde Discount Corp, 212 Mich App 576, 582; 538 NW2d 686 (1995) (citations omitted).]
In general, “defending the action or proceeding with the trial,” that is defending an action without seeking to invoke a right to compel arbitration, constitutes a waiver of the right to arbitration. See North West Michigan Constr, Inc v Stroud, 185 Mich App 649, 651-652; 462 NW2d 804 (1990), and Hendrickson v Moghissi, 158 Mich App 290, 299-300; 404 NW2d 728 (1987), quoting 98 ALR3d 767, § 2, pp 771-772. State Farm is the appellant with regard to the trial court’s decision in favor of Salesin on the merits of this case. Given that State Farm drafted the insurance policy at issue with its arbitration provision, State Farm certainly knew of its right to arbitration. Nevertheless, State Farm apparently refused to arbitrate its dispute with Salesin and further litigated the merits of its dispute with Salesin in the trial court without seeking an order to have the dispute settled in accordance with the contractual right to arbitrate.
Thus, State Farm acted in a manner inconsistent with its right to arbitration. Further, Salesin would be prejudiced if we vacated the trial court’s decision and referred the matter to arbitration at this point after Salesin expended resources to litigate the merits of tliis case in the trial court, and this Court, as a result of State Farm’s refusal to arbitrate. State Farm has waived any right to arbitration. Thus, we will not disturb the trial court’s judgment on the merits in favor of Salesin with respect to his personal claim on the basis of the failure of the parties to arbitrate this dispute.
IV. DEDUCTION OF CONTRACTOR’S OVERHEAD AND PROFIT
A SMITH v MICHIGAN BASIC PROPERTY ASS’N AND THE “ACTUAL REPAIR” RULE
State Farm relies heavily on Smith v Michigan Basic Property Ins Ass’n, 441 Mich 181; 490 NW2d 864 (1992), for its assertion that Salesin is entitled to be paid more money only “when and if” he spends more on repairs than he has already been paid. Smith involved a suit by the insureds against the Michigan Basic Property Insurance Association for fire loss. Id. at 184. Michigan Basic’s insurance policy provided for replacement cost coverage on the home in question, with a policy limit of $56,000. Id. at 184, n 2. The stipulated actual cash value of the home, in disrepair and in a depressed neighborhood, was $7,500. Id. At the time of the suit, the insureds had not completed repair or replacement of the home, as both Michigan Basic’s insurance policy and the statute in effect at the time Michigan Basic issued the insurance policy and at the time of the loss required.
The jury awarded a judgment of $90,607.92 in favor of the insureds. Id,. The trial court had entered an order that, in the event of a favorable verdict, the insureds were, pursuant to Pollock v Fire Ins Exchange, 167 Mich App 415; 423 NW2d 234 (1988), “ ‘entitled to recover the full replacement cost value of their home not to exceed policy limits without first having to repair or replace same.’ ” Smith, supra at 186. This Court, on that point, affirmed. Id. at 187. Thus, the question before the Michigan Supreme Court was whether, before actual repair, the insureds should receive only the stipulated actual cash value of the home of $7,500 (as Michigan Basic asserted) or whether they were entitled to an additional $48,500 (as the insureds asserted, as the jury and the trial court held, and as this Court affirmed), representing the difference between the $7,500 actual cash value and the replacement cost value of $56,000 (which was also the insurance policy limit).
The Michigan Supreme Court chose the first option. It modified the judgment to require, with regard to direct compensation for loss of the home, only the payment of the $7,500 actual cash value of the home and to require an additional payment of up to $48,500 (the difference between the $56,000 replacement value and the $7,500 actual cash value) “when and if the Smiths actually repair, rebuild or replace the home.” Smith, supra at 187. In the process, the Court declined to follow Pollock. Id. at 189-190. The Court observed:
The policy limits Michigan Basic’s liability for replacement cost to the lesser of three amounts: (a) the policy limit, (b) the replacement cost for “like construction and use on the same premises” (emphasis added), or (c) the amount actually and necessarily spent to repair or replace the damaged building. [Id. at 191-192.]
We first note that the Legislature revised § 2826 of the Insurance Code, MCL 500.2826; MSA 24.12826, in 1990. The statute now provides that a fire insurance policy “may provide that there shall be no liability by the insurer to pay the amount specified in the policy unless the property is actually repaired, rebuilt, or replaced at the same or another site.” Thus, legisla tive action has substantially eroded the statutory basis for the so-called “actual repair” rule.
Second, State Farm’s insurance policy in this matter contains only two of the three limitations on liability contained in Michigan Basic’s insurance policy in Smith: policy limits and replacement costs. Missing is the third limit in Smith-, the amount actually and necessarily spent to repair or replace the damaged building. While State Farm’s insurance policy here, in § I.3.c(1), refers to “actual repair or replacement,” this insurance policy arguably does not make this reference in such a way as to constitute a limitation on the amount that State Farm will pay as the “actual cash value of the damage.” Thus, the insurance policy basis for the so-called “actual repair” rule is arguably also absent. Therefore, while State Farm’s assertion that, since Smith, there has been no question of the validity or enforceability of “actual repair” clauses in Michigan replacement cost policies may be true, it is also arguably immaterial to a determination whether State Farm adequately compensated Salesin for the “actual cash value of the damage.”
B. SNELLEN AND GILDERMAN
Each party in this matter relies on a case from another jurisdiction in support of its position. State Farm relies on Snellen v State Farm Fire & Casualty Co, 675 F Supp 1064 (WD Ky, 1987). Snellen involved a suit by an insured against State Farm for fire loss under an insurance policy that provided replacement cost coverage with respect to the home in question, with a policy limit of $61,400. Id. at 1065-1066. The insurance policy at issue in Snellen contained the following provisions:
“3. Loss Settlement Covered property losses are settled as follows: . . .
“c. Buildings under Coverage A at replacement cost at the time of loss without deduction for depreciation, subject to the following:
“(1) We will pay the cost of repair or replacement, without deduction for depreciation, but not exceeding the smaller of the following amounts:
“(a) the limit of liability under this policy applying to the building;
“(b) the replacement cost of that part of the building damaged for equivalent construction and use on the same premises; or
“(c) the amount actually and necessarily spent to repair or replace the damaged building.
“(2) We will pay the cash value of the damage, up to the policy limit, until actual repair or replacement is completed.
“(3) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis and then make claim within 180 days after loss for any additional liability on a replacement cost basis.” [Id.]
At the time of the suit, the insured had not begun to repair or replace her home. Id. at 1066. State Farm adjusted the insured’s claim by estimating the cost of rebuilding at $50,467.45, and then deducting depreciation in various percentages totaling $9,216.27, thereby arriving at the sum of $41,251.18. Id. The court stated that the question presented was “the amount due under the policy where the insured elects not to repair or replace the insured property.” Id. Referring to Huggins v Hanover Ins Co, 423 So 2d 147 (Ala, 1982) (holding that replacement is a condition precedent to a claim for replacement costs) and Pierce v West American Ins Co, 655 SW2d 34 (Ky, 1983), the court held that the insured was not entitled to claim replacement costs where she had not repaired or replaced the damaged property or even evidenced an intention to do so. Snellen, supra at 1067. The court then found that, under State Farm’s insurance policy, the insured “is clearly limited to actual cash value of the damage, up to the policy limit.” Id. Thus, while State Farm’s contention that Kentucky follows the same “actual repair” rule as Michigan may be correct, this factor is arguably irrelevant.
The court then turned to the “more difficult” question whether the insured had been paid or offered the amount due under her insurance policy. As with Michigan Basic’s insurance policy in Smith, supra, State Farm’s insurance policy in Snellen contained three limits that might apply in a given case: (a) the policy limit, (b) the replacement cost “of that part of the building damaged for equivalent construction and use on the same premises” and (c) “the amount actually and necessarily spent to repair or replace the damaged building.” See Snellen, supra at 1065-1066. The court stated that the replacement cost provision is “an additional coverage which, on a theoretical basis, provides the insured with an option to replace the building, without deduction for depreciation, rather than to simply receive payment for the actual cash value of the damage sustained by the insured building” and noted that “actual cash value” was not defined in the insurance policy. Id. at 1068. The court found that arriving at actual cash value by subtracting depreciation from full replacement costs “is certainly logical, since it values the damage with consideration for the condition of the building prior to the loss.” Id. The court then stated:
Thus, it was not error for the defendant to deduct depreciation from the cost of repair or replacement of specific items of the plaintiff’s building in order to arrive at the actual cash value of the damage incurred in the loss. Similarly, since the goal is to arrive at the actual cash value of the damage, non-damage factors which are applicable only in the instance of repair or replacement such as clean up, profit, overhead, and permits, were properly deducted. These factors have no relation to the value of the damage but only the expense which would be incurred if repair or replacement were involved. [Id. (emphasis supplied).]
Clearly, therefore, Snellen supports State Farm’s basic position in this case that the term “actual cash value” allows the deduction of both depreciation and con tractor’s overhead and profit. Snellen may not, however, support State Farm’s position with respect to the “actual repair” rule, and, as we outline more fully below, the logic of allowing a deduction of contractor’s overhead and profit on the ground that this is a “non-damage factor” that has no relation to the value of the damage is unpersuasive.
Salesin relies on Gilderman v State Farm Ins Co, 437 Pa Super 217; 649 A2d 941 (1994). Gilderman involved a suit initiated as a class action by two insureds against State Farm for a covered loss under an insurance policy that provided for replacement cost coverage. Id. at 220.
The insurance policy at issue in Gilderman included the following provisions:
“(2) We will pay the cost of repair or replacement, without deduction for depreciation, but not exceeding the smallest of the following amounts:
“(a) the limit of liability this policy applying to the building; [sic]
“(b) the replacement cost of part of the building damaged for equivalent construction and use on the same premises; or
“(c) the amount actually and necessarily spent to repair or replace the damaged building.
“(3) We will pay the actual cash value of the damage, up to the policy limits, until actual repair or replacement is completed.” [Id.]
The court stated that the question presented was “whether an insurer, which has agreed to pay repair or replacement costs less depreciation in advance of actual repair or replacement of a covered loss, may automatically withhold both depreciation and a flat twenty percent representing contractor overhead and profit from its advance payment.” Id. at 219. The court quoted the following description of replacement cost coverage:
“Replacement cost coverage was devised to remedy the shortfall in coverage which results under a property insurance policy compensating the insured for actual cash value alone. That is, while a standard policy compensating an insured for the actual cash value of damaged or destroyed property makes the insured responsible for bearing the cash difference necessary to replace old property with new property, replacement cost insurance allows recovery for the actual value of property at the time of loss, without deduction for deterioration, obsolescence, and similar depreciation of the property’s value.” [Id. at 220.]
The court then noted that, under the policy, the insured may not receive the full repair or replacement cost of a covered loss until repair or replacement occurs. Id. Thus, State Farm’s contention that Güdennan does not follow the “actual repair” rule may be misplaced. Again, however, this factor is arguably irrelevant.
The court in Gilderman then turned to the question of “actual cash value,” noting that it was not defined in the insurance policy. As with Michigan Basic’s insurance policy in Smith, supra, and State Farm’s insurance policy in Snellen, supra, State Farm’s insurance policy in Gilderman contained three limits: (a) the policy limits, (b) the replacement cost “of part of the building damaged for equivalent construction and use on the same premises” and (c) “the amount actually and necessarily spent to repair or replace the damaged building.” Gilderman, supra at 220. The court found that State Farm agreed to pay its insured the “actual cash value” of a covered loss, whether or not repairs or replacement actually occur, and stated: “Repair or replacement costs logically and necessarily include any costs that an insured reasonably would be expected to incur in repairing or replacing the covered loss.” Id. at 225 (emphasis supplied). Although not holding categorically that repair or replacement costs always and automatically include contractor’s overhead and profit, the court observed:
First, contractor expenses may well be contingent; however, the same can be said of all repair or replacement costs. For example, the insured may be a plumber, repair a covered loss himself, and incur no labor costs. The insured may be able to obtain goods at wholesale, used, or free and never incur the retail costs of parts. All repair or replacement costs are, in theory, “contingent” prior to being incurred.
Second, and more importantly, the issue is not whether a given cost is contingent. The issue is what State Farm agreed to pay to its insureds prior to actual repair or replacement. It agreed to pay “actual cash value,” which means “repair or replacement cost less depreciation.” Thus, the real inquiry is what is included in “repair or replacement costs.” We hold that repair or replacement costs include any cost that an insured is reasonably likely to incur in repairing or replacing a covered loss. In some instances, this will include use of a general contractor and his twenty percent overhead and profit. [Id. at 226.]
Clearly, therefore, Gilderman supports Salesin’s basic position in this case that the term “actual cash value” allows the deduction of depreciation but not of contractor’s overhead and profit. Gilderman does not, however, support the position that contractor’s overhead and profit should always and automatically be included within the payment of actual cash value of the damage made to an insured before actual repair or replacement under a replacement cost policy like the one in this case.
We find the Gilderman court’s rationale with respect to the issue of contractor’s overhead and profit to be more persuasive than that of the Snellen court. The original estimate of the “actual cash value of the damage” is just that, an estimate. Certainly, the insured has not incurred the cost of contractor’s overhead and profit at this point. Neither, however, has the insured incurred the cost of labor or materials. It is no more logical to exclude the former, on the grounds that it is a “non-damage factor,” than it is to exclude the latter. This point becomes more persuasive in light of the fact that, unlike the insurance policies in Smith, Snellen, and Gilderman, the State Farm insurance policy at issue in this case explicitly contains two of the same limitations (policy limits and replacement costs) that were present in those cases, but does not so explicitly contain the third limit of actual repair or replacement.
In any event, the original estimate of actual cash value of the damage under the State Farm insurance policy in force in Michigan is entirely theoretical and is therefore not limited by the lack of actual expenditures. The fact that Salesin did not, when he repaired his home, actually incur any costs for contractor’s overhead and profit is therefore not dispositive.
C. CONCLUSION
As in Snellen and Gilderman, State Farm’s insurance policy in this case does not contain a definition of “actual cash value,” nor does it set out the basis on which State Farm determines actual cash value. The process by which actual cash value would be deter mined was contained in State Farm’s Operation Guide. In accordance with the provisions of that document, State Farm routinely deducts contractor’s overhead and profit as well as depreciation when it makes an “actual cash value of the damage” payment under § I.c.(l) of its insurance policy. There was deposition testimony that this procedure is contrary to industry norms and practices. Indeed Salesin asserts, and State Farm does not appear to deny, that State Farm is the only known insurance company that deducts contractor’s overhead and profit from the actual cash value payment under a homeowner’s insurance policy. Further, § 2826 of the Insurance Code as currently in effect and State Farm’s insurance policy itself do not explicitly limit such actual cash value payments to the costs of repair and replacement that the insured actually incurs.
It is uncomfortably true that finding that State Farm owes Salesin an additional $5,581.79 for contractor’s overhead and profit will result in a payment to him for costs that he has not incurred and almost certainly will not incur. However, it is also true Salesin has paid a premium for a full replacement cost policy. There is no logical reason, nor any reason based upon the insurance policy itself or the record below, for deducting estimated contractor’s overhead and profit when making payments under § I.c.(l) of State Farm’s insurance policy. Smith does not require a contrary result and the reasoning in Gilderman is, we believe, superior to the reasoning in Snellen.
V. CLASS-ACTION CERTIFICATION
In his amended complaint, Salesin sought to bring this case as a class action. In its January 22, 1996, scheduling order, the trial court provided that the deadline for the filing of Saiesin’s motion for certification as a class action was to be “extended to a date to be set by the court.” After granting summary disposition for Salesin on the merits of his individual case and denying State Farm’s motion for summary disposition, the trial court stated, “I also advise the parties that I’m denying a class action certification.” Saiesin’s counsel pointed out that a status conference had been scheduled at a future date to deal with the issue of certification and stated, “I know we haven’t addressed that issue yet with the Court.” The trial court responded by stating, “I know, but I’m satisfied that this matter should not be addressed as a class action suit and I am denying that request.”
The trial court provided no further explanation for denying certification as a class action. Thus, the trial court simply stated its denial of certification as a class action in a conclusory manner without giving any meaningful explanation of this decision. Further, it appears that no date had been set for the formal filing of a motion for certification of the matter as a class action. Therefore, the trial court’s denial of certification as a class action occurred before the time set by the trial court had expired for Salesin to file such a motion.
We conclude that the trial court did not properly rule with respect to the question of certification of the matter as a class action. We review a trial court’s ruling regarding a certification of a suit as a class action for clear error. See Mooahesh v Dep’t of Treasury, 195 Mich App 551, 556; 492 NW2d 246 (1992) (this Court will reverse an order of certification of a class action only if clearly erroneous).
MCR 3.501(A)(1) provides the requirements that must be met for a lawsuit to be certified as a class action:
One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if:
(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members;
(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.
MCR 3.501(A)(2) sets forth various factors that a trial court “shall consider among other matters” in determining whether the maintenance of a class action w ould be superior to other available methods of adjudication in promoting the convenient administration of justice.
In Adair v Detroit, 198 Mich App 506, 511; 498 NW2d 924 (1993), this Court determined that a trial court clearly erred in certifying counterclaims as a class action without determining whether the requirements for such certification under MCR 3.501(A)(1) had been met. The Adair panel further stated:
Accordingly, we cannot determine whether the trial court properly certified defendant’s counterclaims as a class action. We remand for a determination whether defendant may assert its counterclaims as a class action pursuant to MCR 3.501(A). [Adair, supra at 511.]
Here, the trial court precluded certification of the plaintiffs suit as a class action without determining whether it should grant certification pursuant to MCR 3.501(A)(1). Further, the trial court apparently decided to deny certification as a class action without allowing Salesin’s counsel to file a motion and supporting brief in support of such certification. In light of Adair, we therefore remand for a proper determination whether certification as a class action should be granted.
In this regard, there is no adequate factual record for this Court independently to evaluate any of the factors pertinent to a decision regarding whether certification as a class action should be granted. With regard to factor a of MCR 3.501(A)(1), it is unclear how many policyholders might be affected by State Farm’s challenged policy regarding the deduction of contractor overhead and profit. The trial court also made no findings regarding factor d, i.e., whether Salesin would fairly and adequately assert and protect the interests of the class. This is a factor that would be particularly difficult for an appellate court to consider without the assistance of findings by the trial court. Similarly, the trial court did not discuss factor e, whether maintenance of a class action would be superior to other available methods of adjudication in promoting the convenient administration of justice.
With regard to factor e, we do note that the insurance policy in this case includes a procedure for arbitration. While State Farm waived the right to arbitrate, it does not necessarily follow that State Farm would do so in all other cases. This could reasonably be considered by the trial court as tending to support a conclusion that class certification should be denied on the basis of factor e, because maintenance of a class action in the trial court would not be superior to settling disputes between State Farm and other insureds by means of arbitration. In this regard, we note that Michigan law favors arbitration. See, e.g., Burns v Olde Discount Corp, supra at 580 (any doubts about arbitrability of an issue should be resolved in favor of arbitration); Jozwiak v Northern Michigan Hosps, Inc, 207 Mich App 161, 165; 524 NW2d 250 (1994) (Michigan has a strong public policy favoring arbitration).
VI. ATTORNEY FEES
The trial court awarded $2,000 in attorney fees to Salesin without explaining why it did so. State Farm argues that attorney fees should not have been awarded at all, while Salesin argues that the $2,000 awarded in attorney fees was unduly low. “Under the traditional ‘American rule,’ each side must bear its own litigation expenses, unless the law or court rules specify an exception.” Bennett v Weitz, 220 Mich App 295, 302; 559 NW2d 354 (1996). It is unclear to us why the trial court departed from the general rule regarding attorney fees. Accordingly, we vacate the award of attorney fees to Salesin. On remand, after considering the issue of certification as a class action, the trial court should reconsider whether Salesin is entitled to any attorney fees. If the trial court decides that Salesin is entitled to attorney fees, it should specifically explain its basis for such a decision and for determining the amount of any attorney fees awarded.
Similarly, the trial court awarded Salesin $2,000 in costs without specifying how it reached this determination. Salesin argues on appeal that this award was too low. We vacate the trial court’s decision regarding the amount of costs awarded and remand with instructions for the trial court to reconsider the amount of costs that it should award to Salesin and to specify its basis for determining the amount of those costs.
m CONCLUSION
We affirm the trial court’s grant of summary disposition for Salesin with respect to the substantive issue of the inclusion of contractor’s overhead and profit in the payment of actual cash value of the damage to the insured property. However, we vacate the awards of $2,000 in attorney fees and $2,000 in costs to Salesin. We remand to the trial court for a proper determination of the question of certification as a class action. After properly ruling with respect to the class-action question, the trial court should consider the issues of attorney fees and costs in light of this remand. Salesin, being the prevailing party, may tax costs pursuant to MCR 7.219.
This internal Operation Guide was obviously not part of the parties’ insurance contract.
State Farm states that “Plaintiff’s deadline for filing a class certification motion was deferred during discovery.”
Michigan Basic’s insurance policy contained the following clause:
“We will pay no more than the actual cash value of the damage unless: (a) actual repair or replacement is complete; or (b) the cost to repair or replace the damage is both: (i) less than 5% of the amount of insurance in this policy on the building; and (ii) less than $1000.” [Smith, supra at 185, n 3 (emphasis supplied).]
Apparently, clause b was not an issue in the case.
As then in effect, § 2826 of the Insurance Code, MCL 500.2826; MSA 24.12826 provided:
Riders and endorsements may, in consideration of adequate premium or premium deposit, be added to the standard fire insurance policy, insuring property, whereby the insurer agrees to reimburse and indemnify the insured for the difference between the actual value of the insured property at the time any loss or damages occurs, and the amount actually expended to repair, rebuild or replace with new materials of like size, kind and quality, but not to exceed the amount of liability covered by the riders or endorsements, such property as has been damaged or destroyed by fire or other perils insured against, except that there shall be no liability by the insurer under the terms of said riders or endorsements to pay the amount specified in the riders or endorsements unless the property damaged is actually repaired, rebuilt or replaced at the same or another site. [Emphasis supplied.]
This amount included (1) the “replacement cost value” of the home, as stipulated by the parties, of $56,000, (2) $2,500 for debris removal, and (3) the actual cash value of the personal property damaged or destroyed by the fire of $26,061.16. Smith, supra at 184, n 2.
Thus, as in effect at the time of the loss and currently, § 2826 of the Insurance Code provides:
An insurer may issue a fire insurance policy, insuring property, by which the insurer agrees to reimburse and indemnify the insured for the difference between the actual value óf the insured property at the time any loss or damages occurs, and the amount actually expended to repair, rebuild, or replace with new materials of like size, kind, and quality, but not to exceed the amount of liability covered by the fire policy. A fire policy issued pursuant to this section may provide that there shall be no liability by the insurer to pay the amount specified in the policy unless the property damaged is actually repaired, rebuilt, or replaced at the same or another site. [Emphasis added.]
State Farm’s contention that in Smith, the Michigan Supreme Court declared emphatically that costs associated with repair and replacement are not to be paid until actually incurred is somewhat misleading. In Smith, the Court required payment of $7,500, the actual cash value of the building, before any repair or replacement. This was consistent with both the statute, as then in effect, and Michigan Basic’s insurance policy. If State Farm meant to imply that the Smith Court allowed no payment before repair or replacement, this implication is incorrect.
We note parenthetically that the court in Snellen skirted the issue with which the Court in Smith, supra, struggled. If the insured must finance the cost of repairs, so that actual repair and replacement occurs, most lenders would be “chary” of lending the money on the basis of an unlitigated lawsuit. See Smith, supra at 190; see also Zaitchick v American Motorist Ins Co, 554 P Supp 209, 217 (SD NY, 1982) aff'd without published opinion 742 F2d 1441 (CA 2, 1983). The solution to the dilemma is the provision in both Michigan Basic’s insurance policy in Smith and State Farm’s insurance policy in Snellen that allows for payment of the actual cash value of the damage before repair and replacement.
State Farm also cites Truesdellv State Farm Fire & Casualty Co, 960 F Supp 1511 (ND Okla, 1997) as supplemental authority. This case holds, and cites Smith, supra, as authority for the proposition that withholding replacement costs until repair or replacement is actually made is conscionable. See Truesdell, supra at 1515-1517. TruesdeU does not, however, deal with the central issue in this case: Whether, under Michigan law and State Farm’s policies, contractor’s overhead and profit can be deducted from the actual cash value of the damage.
Apparently. taken from anno: Construction and effect of property insurance provision permitting recovery of replacement cost of property, 1 ALR 5th 817, 827-828.
State Farm is correct that a prior case in Pennsylvania, Ferguson v Lakeland Mut Ins Co, 408 Pa Super 332; 596 A2d 883 (1991), did hold that as a matter of public policy it was “unconscionable to require insureds to procure from their own funds, which they may not have, replacement property prior to receipt of full replacement cost since the insureds expected to receive such coverage by purchasing replacement value coverage.” See Gilderman, supra at 223.
In this regard, the court commented on the “windfall” theory that State Farm advanced in Gilderman and, indeed, advances in this case:
In this respect, we note that insureds under these policies have paid an additional premium for replacement cost coverage that the insured can afford to repair or replace a loss at current market value and essentially keep the value of his property the same. An insured loses the benefit of the replacement cost coverage by electing not to repair or replace. It can hardly be said that an insured reaps a windfall by obtaining payment of actual cash value determined in a fair and reasonable manner when that is precisely what the insurer has agreed to pay under its policy in advance of actual repair or replacement. [Gilderman, supra at 227.]
Presumably, what the court meant was an insured under State Farm’s insurance policy could receive the “actual cash value of the damage” (with a deduction for depreciation but without a deduction for contractors overhead and profit) before actual repair or replacement but following actual repair and replacement could claim an additional amount (but still within the overall limits of policy limits, replacement cost, or amount actually spent) that would include depreciation. In passing, we note that this additional amount could, within the same three limits, probably include unanticipated items of cost that were not included in the original estimate.
Of course, if on remand the trial court properly finds that any one of the five factors enumerated in MCR 3.501(A)(1) preclude certification as a class action, it would not be necessary for the trial court to address the remaining factors. Nevertheless, as a matter of judicial economy, we encourage the trial court to address all five factors if it denies certification as a class action.
Salesin in his brief sets out certain bases that he asserts justified an award of attorney fees. In light of the necessity of a remand for proper consideration of the issue of certification as a class action, we leave initial consideration of these possible grounds for an award of attorney fees to the trial court on remand. | [
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Wahls, J.
In this medical malpractice action, plaintiff, as personal representative of the decedent’s estate, appeals as of right from a trial court order granting summary disposition in favor of defendants Steven Kin, D.O., and ENT Surgical Associates, P.C., pursuant to MCR 2.116(C)(8) and (C)(10). We affirm.
This action arose out of the death of plaintiff’s decedent, Stephen Craig Burge, on November 30, 1993. The decedent was brought to the emergency room at Oakland General Hospital (Osteopathic) on the evening of November 29, 1993, for treatment of a gunshot wound to his right jaw. Defendant Steven Kin, D.O., was the ear, nose, and throat physician on call that evening at Oakland General Hospital. The resident physician on duty that evening telephoned Dr. Kin at home and requested his presence at the hospital to assist in the care and treatment of the decedent. Dr. Kin informed the resident that he was not feeling well and would not go to the hospital. He further indicated that the resident should contact another physician to assist her. The resident contacted Dr. Kin on two other occasions throughout the night regarding this patient and each time Dr. Kin responded that he was unable to assist or come to the hospital and informed the resident that she would have to find another physician to take his place.
After examination by a number of physicians at Oakland General, the patient was transferred to Detroit Receiving Hospital. He died on the operating table at Detroit Receiving in the early morning hours of November 30, 1993. This lawsuit followed.
On appeal, plaintiff argues that the trial court erred in granting summary disposition for defendants. Specifically, plaintiff contends that she stated a legally cognizable claim and raised a genuine issue of material fact regarding the existence of a physician-patient relationship between Dr. Kin and the decedent. We disagree.
The sole issue on appeal is whether plaintiff can establish that Dr. Kin owed the decedent a duty of care. Plaintiff argues two different grounds for finding such a duty. First, she argues that a physician-patient relationship existed between Dr. Kin and the decedent because Dr. Kin rendered medical advice and treatment during his telephone conversations with the emergency room resident. Plaintiff contends that once it was established that this relationship existed, a legal duty arose requiring Dr. Kin to act in accordance with the recognized standard of care. Alternatively, plaintiff argues that a contractual relationship between Dr. Kin and the hospital, in conjunction with the hospital by-laws, created a legal duty requiring Dr. Kin to respond when called, or to secure another physician to act in his place. We address these arguments separately.
The existence or nonexistence of a legal duty is a question of law for the court to decide. Hill v Kokosky, 186 Mich App 300, 302; 463 NW2d 265 (1990). Without the existence of a legal duty, there can be no actionable negligence. Id. In medical malpractice actions, the duty owed by a physician arises from the physician-patient relationship. Id. Thus, a physician-patient relationship is a legal prerequisite to a medical malpractice cause of action. Id. at 303. “A physician-patient relationship exists where a doctor renders professional services to a person who has contracted for such services.” Id.
Here, plaintiff never alleged that there was a physician-patient relationship between the defendants and the decedent, and she thereby failed to plead sufficient facts to support a malpractice claim. In addition, even if plaintiff were allowed to amend her pleadings, her claim could not be supported. As discussed below, defendants did not render any treatment to plaintiffs decedent, nor did they owe him any duty.
The question of when a physician-patient relationship arises has rarely been addressed in our published decisions. The most recent cases dealing with this subject, Hill, supra, and NBD Bank, NA v Barry, 223 Mich App 370; 566 NW2d 47 (1997), involved factual situations different from that presented by the instant case. The patients in those cases were attempting to sue doctors whose only connection to their treatment were conversations with their treating physicians. The conversations in those cases apparently did not relate to emergency room care, and the defendant doctors were not on-call. Here, Dr. Kin was on call and was contacted by a resident in the emergency room. While these distinctions have not been addressed in Michigan, they are potentially significant.
In McKinney v Schlatter, unpublished opinion of the Ohio Court of Appeals, issued February 18, 1997 (Docket No. CA96-05-100); 1997 WL 67702, the Ohio Court of Appeals addressed the same issue we face today. There, the patient sought treatment in an emergency room for acute chest and abdominal pain. He was examined by the attending emergency room physician, who ordered several tests and then telephoned the cardiologist who was on call. The two physicians discussed the case, and the cardiologist opined that the problem was not cardiac in nature and recommended an additional test. After this additional test was performed, the attending emergency room physician called the cardiologist back, and the cardiologist again suggested that he did not think the patient had a cardiac problem. The patient was discharged and died a short time later of a “dissecting aortic aneurysm,” apparently a cardiac problem. The decedent’s estate then sued the two doctors and the hospital for medical malpractice and wrongful death. The trial court granted a directed verdict for the cardiologist, finding that he owed no duty to the decedent. The plaintiff appealed, and the Ohio Court of Appeals reversed. The court framed the issue as follows:
The existence of a duty of care, in a case such as this, depends upon whether there was a physician-patient relationship between the decedent and the defendant-physician. A physician-patient relationship arises out of a consensual contract of employment, express or implied, under which the patient seeks medical assistance and the physician agrees to render treatment.
The issue presented to us is whether a telephone conversation between an attending emergency room physician and an on call consulting physician with regard to an emergency room patient creates a physician-patient relationship between the on call physician and the patient whom the on call physician does not know, has not spoken with, and has not previously treated. This is an issue of first impression in Ohio. [Id, at *2 - *3 (citations omitted).]
Obviously, this is precisely the question presented by plaintiffs first argument in the instant case. After reviewing several cases from other jurisdictions, including our own holding in Hill, supra, the court in McKinney concluded:
We therefore hold, and in doing so are mindful that we are elaborating in the field of medical malpractice, that a physician-patient relationship can exist by implication between an emergency room patient and an on call physician who is consulted by the patient’s physician but who has never met, spoken with, or consulted the patient when the on call physician (1) participates in the diagnosis of the patient’s condition, (2) participates in or prescribes a course of treatment for the patient, and (3) owes a duty to the hospital, staff or patient for whose benefit he is on call. Once an on call physician who has a duty to the hospital, its staff or patients is contacted for the benefit of an emergency room patient, and a discussion takes place between the patient’s physician and the on call physician regarding the patient’s symptoms, a possible diagnosis and course of treatment, a physician-patient relationship exists between the patient and the on call physician. [Id. at *6.]
Obviously, McKinney is not binding precedent. However, we believe that the test in McKinney properly recognizes that a physician’s on-call status alone is insufficient to warrant a finding that the physician impliedly consented to a physician-patient relationship.
A physician-patient relationship is contractual and requires the consent, express or implied, of both the doctor and the patient. Hill, supra at 303. The consent of the patient is generally implied. The question is, Under what circumstances can the doctor’s consent be implied? As the panel in Hill properly recognized, merely listening to another physician’s description of a patient’s problem and offering a professional opinion regarding the proper course of treatment is not enough. Under those circumstances, a doctor is not agreeing to enter into a contract with the patient. Instead, she is simply offering informal assistance to a colleague. At the other end of the spectrum, a doctor who is on call and who, on the phone or in person, receives a description of a patient’s condition and then essentially directs the course of that patient’s treatment, has consented to a physician-patient relationship. The difficulty arises in determining where, between these two extremes, a physician-patient relationship (and thus a duty) arises. This inquiry is necessarily conducted case by case, but we do not believe that a physician’s on-call status alone is enough to support an implied consent to a physician-patient relationship. Thus, we conclude that an implied consent to a physician-patient relationship may be found only where a physician has done something, such as participate in the patient’s diagnosis and treatment, that supports the implication that she consented to a physician-patient relationship. We conclude that such participation is necessary for, but by itself does not establish, an implied physician-patient relationship. See Hill, supra.
Here, it is undisputed that Dr. Kin’s only opportunity to treat the decedent came during three phone calls, all from the same emergency room resident. With his motion for summary disposition below, Dr. Kin filed an affidavit stating unequivocally that he never provided any care, treatment, or advice regarding the decedent’s condition. Dr. Kin averred that he told the emergency room resident that he was ill and that she should contact another physician. He denied ever accepting the decedent as a patient. This affidavit is essentially unrebutted. Plaintiff points to the deposition of the emergency room resident as evidence that Dr. Kin consented to a physician-patient relationship. However, we find nothing in her deposition that contradicts Dr. Kin’s affidavit on this point. Thus, unlike the on-call physician in McKinney, Dr. Kin did not take any action that would support a finding of implied consent. Under these circumstances, the trial court properly found no genuine issue of material fact regarding the existence of a physician-patient relationship.
The remaining question is whether the relationship between the hospital and Dr. Kin can somehow support a finding of a duty owed by Dr. Kin to the decedent. Plaintiff argues that Dr. Kin’s contractual relationship with the hospital, combined with the hospital by-laws, imposed a duty on Dr. Kin to come to the hospital when he was called, or to arrange for coverage. Dr. Kin may very well have owed such a duty to the hospital. However, a contract between the hospital and Dr. Kin does not necessarily create rights in third-parties such as the decedent. Where the decedent was not a party to the contract, the personal representative of the decedent’s estate has no right to enforce it unless she can show that the decedent was an intended third-party beneficiary. Alcona Community Schools v Michigan, 216 Mich App 202, 204; 549 NW2d 356 (1996). Third-party beneficiary law in Mich igan is controlled by statute. MCL 600.1405; MSA 27A.1405 provides in pertinent part:
Any person for whose benefit a promise is made by way of contract, as hereinafter defined, has the same right to enforce said promise that he would have had if the said promise had been made directly to him as the promisee.
(1) A promise shall be construed to have been made for the benefit of a person whenever the promisor of said promise has undertaken to give or to do or refrain from doing something directly to or for said person.
The test created by this statute is objective; the subjective intent of the parties to the contract is irrelevant. Where the contract in question is primarily for Hie benefit of the parties thereto, the fact that a third person is incidentally benefited does not give that third person rights as a third-party beneficiary. Alcona, supra at 205.
Here, assuming arguendo that there was a contract between the hospital and Dr. Kin, plaintiff failed to show that the decedent was an intended third-party beneficiary of that contract. The law presumes that a contract has been executed for the benefit of the parties thereto, thus plaintiff had the burden of proving that the decedent was an intended beneficiary of the contract. Koenig v South Haven, 221 Mich App 711, 716; 562 NW2d 509 (1997). Plaintiff failed to meet this burden. The only evidence plaintiff produced on this point came in the form of (1) a copy of the hospital’s by-laws, and (2) the deposition testimony of the hos pitai’s medical director. However, none of this evidence suggested that the alleged contract was primarily for the benefit of anyone but the parties to it. Thus, plaintiff could not show that the decedent was an intended third-party beneficiary of the alleged contract between the hospital and defendants.
Because plaintiff failed to plead the existence of a physician-patient relationship, and because there was no duty owed by defendants to the decedent, summary disposition was properly granted for defendants pursuant to MCR 2.116(C)(8) and (C)(10).
Affirmed.
Plaintiff cites two unpublished cases from this Court, which she claims address the significance of a doctor’s on-call status. See Austin v Sukumaran, unpublished opinion per curiam of the Court of Appeals, issued July 21, 1993 (Docket No. 142582); Weisenbach v Hills & Dales Gen Hosp, unpublished opinion per curiam of the Court of Appeals, issued June 25, 1996 (Docket No. 173866). These cases are not binding precedent. Moreover, these cases are simply inapplicable to the present case; one dealt with the “Good Samaritan” statute, Weisenbach, supra, while the other merely suggested that a physician’s “on-call” status could create a duty to a patient, without so holding, Austin, supra.
As the Texas Supreme Court in St John v Pope, 901 SW2d 420, 423 (Tex, 1995), noted:
[Professionals do not owe a duty to exercise their particular talents, knowledge, and skill on behalf of every person they encounter in the course of the day. As is true of all callings, physicians are not obligated to practice their profession or render services to everyone who asks. It is only with a physician’s consent, whether express or implied, that the doctor-patient relationship comes into being.
Finding consent under these circumstances would not only be illogical, it would also be counterproductive. As the Illinois Court of Appeals noted, finding a physician-patient relationship under these circumstances “would have a chilling effect upon the practice of medicine. It would stifle communication, education and professional association, all to the detriment of the patient. The likely effect... would be that such informal conferences would no longer occur.” Reynolds v Decatur Memorial Hosp, 227 Ill App 3d 80, 86; 214 Ill Dec 44; 660 NE2d 235 (1996).
See Ortiz v Shah, 905 SW2d 609, 611 (Tex App, 1995) (“The [physician-patient] relationship is a consensual one and, when no prior relationship exists, the doctor must take some action to treat the patient before the relationship can be established.”).
We offer no opinion regarding the existence, terms, or possible breach of such a contract. We simply hold that, even if a contract existed, plaintiff has failed to show that she has any right to sue for its breach.
The applicable by-law simply required a physician to “discharge any on-call responsibilities.”
The medical director testified that the hospital required an on-call physician to discharge his responsibilities under the by-laws, and that such responsibilities included either taking part in the care of a patient if called, or arranging for coverage. | [
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Hood, J.
In Docket No. 190180, plaintiffs-appellants Sparling Plastic Industries, Inc., and Anthony and Peter DeMarco appeal as of right from the March 25, 1994, trial court order denying their motion for summary disposition. In Docket No. 190181, defendants-appellants Peter, Katherine, Anthony, and Mary Ann DeMarco appeal as of right from the August 22, 1995, trial court judgment in favor of plaintiffs Robert and Evangeline Sparling and the October 6, 1995, trial court order denying their motion for additional or amended findings of fact. Appellants also appeal from a January 22, 1993, order denying their motion for partial summary disposition. This order was issued in lower court case no. 91-126755CK, which was dismissed and subsequently refiled as case no. 93-326751CK. The appeals were consolidated. We affirm in part, reverse in part, and remand.
These cases were consolidated before a bench trial pursuant to a stipulation by all parties. The controversy arose out of a sale of stock transaction in which appellants, through the negotiation of two promissory notes, for $400,000 and $12,600 respectively, agreed to purchase all the outstanding stock in Sparling Plastic Industries, Inc., from appellee Robert Sparling (hereafter Sparling). In conjunction with this sale, appellants received all the corporate assets. Contemporaneous with the stock transaction, the parties negotiated a lease agreement that provided that appellants would lease the property on which the business was located. The promissory notes and the lease agreement were negotiated in March 1991. By May 1992, appellants had made only one of the monthly payments on the $400,000 note, no payments on the $12,600 note, and only three of the monthly lease payments. Sparling therefore reentered the premises. When he did, he found that the electrical service had been disconnected because of nonpayment and that equipment and supplies had been removed from the premises. Sparling remained in possession for a short while before selling the remaining equipment and leasing the premises to a third party.
In Docket No. 190180, appellants Sparling Plastic Industries, Inc., and Anthony and Peter DeMarco filed a complaint against Sparling, alleging conversion, a violation of MCL 600.2919a; MSA 27A.2919(1), and civil conspiracy. In Docket No. 190181, Sparling and his wife, Evangeline, filed a complaint against appellants Peter, Katherine, Anthony, and Mary Ann DeMarco, alleging breach of the two promissory notes and the lease agreement. After a bench trial on the consolidated cases, the trial court found in favor of the Sparlings on every claim. The trial court entered judgment against all appellants in the amount of $574,638.73 with regard to the first promissory note, which included statutory and judgment interest, and a credit to appellants for $70,000 for the sale of the company assets by Sparling. The trial court also entered judgment against appellant Anthony DeMarco only in the amount of $19,378.25 with regard to the second promissory note. The trial court also found the appellants who signed the lease, Anthony, Peter, and Mary Ann DeMarco, liable for $42,406.18 for breaching the lease and found all appellants liable for $44,316.07, which was Sparling’s cost of cleanup after retaking possession of the premises.
Appellants raise numerous issues on appeal, several of which we have combined for our consideration. First, appellants argue that they were entitled to summary disposition because, pursuant to § 301 of the Uniform Securities Act, MCL 451.701; MSA 19.776(301), Sparling was required to register the securities sold to appellants before the sale. Because the securities were not registered, appellants argue that, pursuant to § 410 of the Uniform Securities Act, MCL 451.810; MSA 19.776(410), they could rescind the stock sales transaction and recover the consideration given for the stock and attorney fees. We disagree that summary disposition should have been granted. The trial court did not err in finding that a genuine issue of material fact existed with regard to whether the stock transaction between appellants and Sparling fell within one of the exemption provisions in the Uniform Securities Act thereby making registration of the securities unnecessary. Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997).
Appellants also argued in a motion for summary disposition below that although Sparling did not perfect a security interest in the property that was leased to appellants, Sparling behaved as if he had a security interest when he seized the property and all the assets on the leased premises. They claimed that because Sparling behaved as if he had a security interest, he should have abided by the laws applicable to secured parties and should have given appellants notice before seizing the property and selling the assets. Because Sparling did not, appellants claimed that they were entitled to summary disposition regarding his claims. The trial court properly denied this motion for summary disposition because appellants were seeking equitable relief, which depends on the factual circumstances of the case. Sparling’s claims could have been supported by evidence presented at trial and, therefore, the trial court properly denied appellants’ motion for summary disposition. SSC Associates Ltd Partnership v General Retirement System of Detroit, 192 Mich App 360, 364-365; 480 NW2d 275 (1991).
Next, appellants argue that they were entitled to rescind the stock transaction pursuant to MCL 451.810; MSA 19.776(410), which provides, in part, that a person who sells a security in violation of § 301 of the Uniform Securities Act, MCL 451.701; MSA 19.776(301), is liable to the purchaser for the consideration paid for the security plus interest and attorney fees.
Section 301 provides as follows:
It is unlawful for any person to offer or sell any security in this state unless (1) it is registered under this act or (2) the security or transaction is exempted under section 402.
Section 402 of the Uniform Securities Act, MCL 451.802; MSA 19.776(402), describes all the securities and transactions that are exempt from the requirement of registering under § 301. A review of the twenty-one exemptions enumerated in the act does not reveal an exemption that was applicable to the transaction in this case. Moreover, if Sparling wanted to defend this claim by claiming that an exemption applied, he was required to prove that an exemption applied. MCL 451.802(c); MSA 19.776(402)(c). He did not do so at any time during the trial. Therefore, appellants were entitled to prevail on this claim.
We disagree with the proposition argued by Spar-ling in the trial court that the “sale of business” doctrine applies to the case at bar. Under the “sale of business” doctrine, when a stock purchase constitutes the purchase of a business, the restrictions and requirements imposed on the sale of stock do not apply. MCL 451.815; MSA 19.776(415) provides that the Uniform Securities Act should be construed to coordinate its interpretation with the related federal regulation. It is therefore appropriate to examine how the similar federal provision has been interpreted. This issue was addressed in an almost identical factual situation in Landreth Timber Co v Landreth, 471 US 681; 105 S Ct 2297; 85 L Ed 2d 692 (1985). In that case, the United States Supreme Court rejected the sale of business doctrine, stating that if an instrument bears the usual characteristics of stock then it falls within the definition of a security and, therefore, is within the purview of the Securities Act of 1933, 15 USC 77a et seq., and is subject to all the same requirements and restrictions. Landreth, at 686. In the case at bar, uncontroverted evidence was introduced at trial that the stock at issue possessed all the usual characteristics of a security. Applying the reasoning in Landreth, we conclude that the stock transaction in this case was subject to the registration requirements of the Uniform Securities Act.
The trial court erred in denying appellants’ claim under MCL 451.810; MSA 19.776(410). Appellants were entitled to rescind the transaction and seek statutory damages. We therefore reverse the order of the trial court with regard to this claim and remand for the calculation of appellants’ damages pursuant to the statute. However, the trial court shall set off from that amount the value of the equipment removed from the premises by the appellants and any damage to the plant to which Sparling was found to be entitled.
Appellants also argue that they were entitled to recover the compensation paid for the stock under MCL 451.810(a)(2); MSA 19.776(410)(a)(2), which provides that a person who offers or sells a security by making any untrue statement of a material fact or by the omission of a material fact to a buyer who does not know of the untruth or omission and in the exercise of reasonable care could not know of the untruth or omission is liable for the consideration paid for the security plus interest and attorney fees. A review of the record does not reveal that the trial court clearly erred in finding that Sparling did not make any untrue statements of material fact or omit any material facts. People v Truong (After Remand), 218 Mich App 325, 330; 553 NW2d 692 (1996).
Appellants next argue that the trial court erred in finding that Sparling did not convert their property in violation of MCL 600.2920; MSA 27A.2920, when he seized the property without first notifying them. MCL 600.2920; MSA 27A.2920 provides, in part, as follows:
(1) A civil action may be brought to recover possession of any goods or chattels which have been unlawfully taken or unlawfully detained and to recover damages sustained by the unlawful taking or unlawful detention, subject to the following conditions:
* * *
(c) An action may not be maintained under this section by a person who, at the time the action is commenced, does not have a right to possession of the goods or chattels taken or detained.
MCL 600.2920; MSA 27A.2920 applies only to tangible property. A party may not bring an action for replevin for a business or for the good will of a business. Powers v Fisher, 279 Mich 442, 449; 272 NW 737 (1937). Therefore appellants cannot recover under this section for the value of the business. Although this provision can be applied to the physical assets of the business, appellants were not in possession of the property at the time Sparling reentered the premises. Appellants had abandoned the property and had stripped the premises of most of the machinery and office equipment before Sparling’s reentry. Moreover, there was undisputed testimony that appellants made only one payment on the promissory notes and only a few payments on the lease. Sparling was entitled to reenter the premises pursuant to the lease agreement when appellants failed to make payments in accordance with the terms of the lease. Because Sparling properly took and maintained possession, the trial court correctly determined that he was not liable for conversion.
Next, appellants argue that the trial court erred in finding that Sparling did not breach the purchase agreement. We disagree. Appellants first claim that Sparling violated ¶ 7(B) of the purchase agreement, which assured that there were “no suits, governmental proceedings, or litigation pending” that might affect the ownership or use of the assets or property owned by the company. In support of this claim, appellants argue that Sparling knew that there were hazardous wastes located on the property and these wastes were present in violation of Department of Natural Resources regulations. They also point out that, at the time of the transaction, there was an existing fire code citation for failing to properly store flammable materials on the premises of the company. At trial, there was conflicting testimony regarding how much hazardous waste was on the premises at the time appellants purchased the company. The trial court found that, although there were environmental problems and code violations, these would constantly occur because of the nature of the business and would have to be constantly corrected. It concluded that Sparling made no misrepresentation regarding these issues. This finding was not clearly erroneous and, therefore, we are required to accept it. Beason v Beason, 435 Mich 791, 803; 460 NW2d 207 (1990).
Appellants next claim that Sparling violated ¶ 7(F) of the purchase agreement. In ¶ 7(F), Sparling warranted that no representation or warranty contained in the agreement contained false statements or omissions of material fact. Appellants argue that Sparling violated this paragraph by misstating the amount of the company’s accounts receivable and payable, its current tax liabilities, the value and existence of the company’s assets and inventory, and the nature of his customer relationships. There was conflicting testimony regarding these issues at trial. Therefore, the trial court did not clearly err in finding that the value of the accounts receivable and inventory were not misrepresented in the purchase agreement and that appellants had every opportunity to evaluate the assets of the business before purchasing it.
Finally, appellants claim that Sparling violated ¶ 9 of the purchase agreement. Paragraph 9 prohibited Sparling from competing with the business for a period of five years. Appellants argue that this provision was violated after Sparling reentered the premises. They allege that he ran the business for a short period before he sold the assets of the business to a third party. As previously noted, there was testimony that at the time Sparling reentered the premises, the appellants had abandoned them. The electricity had also been disconnected and items of furniture and equipment had been removed to the extent that regular operations could not be resumed. On these facts, it was clear that appellants were not operating the business at the time Sparling reentered the premises and attempted to salvage what remained of the plant and the business. Therefore, Sparling was not violating the agreement by competing with appellants.
In sum, the record supports the conclusions reached by the trial court and thus, the trial court’s findings that Sparling did not breach the purchase agreement were not clearly erroneous. There was conflicting testimony presented at trial regarding all these issues. Due regard shall be given to the trial court’s superior opportunity and ability to judge the credibility of witnesses. Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 99; 535 NW2d 529 (1995).
Appellants also raise issues concerning their liability under the lease agreement. First they argue that Sparling breached the lease agreement by misrepresenting the condition of the premises and viability of the inventory left on the premises. We disagree, as did the trial court. Appellant Anthony DeMarco admitted visiting the premises several times before the purchase. Although he claims that he did not fully inspect the backyard area or the drums because the area was muddy and snow-covered, he had ample opportunity to do so. Further, Sparling testified that the inventory was usable and that the waste products were recyclable. Second, appellants take issue with the trial court’s findings of fact that individual appellants Anthony DeMarco, Peter DeMarco, and Mary Ann DeMarco were the tenants under the lease. Although these individual appellants argue that they signed the lease only as officers of the company and not as personal guarantors, there is nothing on the face of the lease that supports this argument. In the body of the lease, Sparling Plastic Industries, Inc., was named as the tenant, but on the page where the signatures appear, these individual appellants signed as individuals under the heading “Tenant.” We find that the trial court did not clearly err in finding that Sparling did not breach the lease agreement and that these individual appellants were personally liable for the lease payments.
Next, appellants complain that the trial court’s finding that appellants had abandoned the leased premises before Sparling’s reentry was erroneous. They argue that the evidence presented at trial established that the premises were not abandoned. Appellants rely on Ludington & N R Co v Epworth Assembly, 188 Mich App 25; 468 NW2d 884 (1991). Two requirements must be met to establish abandonment. First, it must be shown that there is an intent to relinquish the property and, second, there must be external acts that put that intention into effect. Id. at 33; Van Slooten v Larsen, 410 Mich 21, 50; 299 NW2d 704 (1980). Nonuse alone is insufficient to prove abandonment. Emmons v Easter, 62 Mich App 226, 237; 233 NW2d 239 (1975). We agree with the trial court that there was sufficient evidence to support a finding that appellants abandoned the leased premises. Specifically, the evidence showed that Detroit Edison had disconnected the electricity because of nonpayment and that, when Sparling reentered the premises, several pieces of equipment were missing as well as trucks, office furniture, copiers, files, tools, and computers, the value of which was between $60,000 and $70,000.
Appellants also claim on appeal that Sparling’s act of selling the remaining assets to a third party amounted to an accord and satisfaction, which precluded an award of damages. We disagree. Appellants argue that they attempted to rescind the contract before Sparling’s reentry. They conclude that there was an accord and satisfaction because Sparling reentered and released the premises and sold the assets of the business to another party after their offer of rescission.
“[Accord and satisfaction] relates to a situation where one party tenders an item in full satisfaction of a claim and the other party accepts the thing tendered. In such a situation, an accord and satisfaction may arise regardless of the lack of an agreement between the parties. An accord and satisfaction may be effected by payment of less than the amount which is claimed to be due if the payment is tendered by the debtor in full settlement and satisfaction of the claim. In order to effect an accord and satisfaction under such circumstances, the tender must be accompanied by an explicit and clear condition indicating that, if the money is accepted, it is accepted in discharge of the whole claim.” [Nationwide Mut Ins Co v Quality Builders, Inc, 192 Mich App 643, 646; 482 NW2d 474 (1992), quoting Fuller v Integrated Metal Technology, Inc, 154 Mich App 601, 607-608; 397 NW2d 846 (1986).]
Appellants cite no facts and this Court does not find any within the record that would support the conclusion that an accord and satisfaction had arisen between the parties. Appellants did not offer to pay any money for the outstanding promissory notes; they only claim that they attempted to rescind the contract by offering to return the shares of stock. This never occurred. There was no evidence that appellants offered a payment to Sparling in satisfaction of the amounts due on the purchase agreement or on the lease. Appellants have therefore failed to establish the elements of an accord and satisfaction.
We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
Kelly, P.J., concurred.
Sparling has not filed briefs in either of the appeals before this Court. | [
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N. J. Lambros, J.
Plaintiff appeals as of right a circuit court order granting defendant’s motion for summary disposition in this medical malpractice action. At issue are the statutory limitations on noneconomic damages in MCL 600.1483; MSA 27A.1483 as the provisions existed before a 1993 amendment became effective. We reverse and remand.
MCL 600.1483; MSA 27A.1483 provided in part:
(1) In an action for damages alleging medical malpractice . . damages for noneconomic loss which exceeds $225,000[ ] shall not be awarded unless 1 or more of the following circumstances exist:
(a) There has been a death.
(b) There has been an intentional tort.
(c) A foreign object was wrongfully left in the body of the patient.
(d) The injury involved the reproductive system of the patient.
(e) The discovery of the existence of the claim was prevented by the fraudulent conduct of a health care provider.
(f) A limb or organ of the patient was wrongfully removed.
(g) The patient has lost a vital bodily function.
Plaintiffs Barbara Lewis (hereinafter Lewis) and her husband filed a complaint alleging medical malpractice and loss of consortium against defendant, as well as several other defendants. Plaintiffs’ theory is that defendants’ malpractice resulted in permanent damage to Lewis’ spinal nerves, making her unable to walk without assistance. Plaintiffs settled their claims with all of the defendants except Krogol for $927,500.
Krogol filed a motion for partial summary disposition pursuant to MCR 2.116(C)(10) with regard to the issue of damages. Krogol asserted, and the trial court agreed, that none of the exceptions to the statutory cap was present in this case. The court questioned whether walking was a vital bodily function. According to the court, even if the description of Lewis’ condition offered by plaintiffs’ counsel was accepted, Lewis’ inability to walk without assistance did not constitute a “loss of a vital bodily function.” The court rejected the proposition that a vertebral body was an “organ” so as to fall within MCL 600.1483(1)(f); MSA 27A.1483(1)(f) and rejected plaintiffs’ challenges to the constitutionality of the statutory cap. Because plaintiffs’ settlement exceeded the statutory cap, the court ruled that the maximum damages to which plaintiffs would be entitled from Krogol was zero. The court determined that there was no genuine issue of material fact to submit to the jury and dismissed the action.
We conclude that the trial court erred in granting Krogol summary disposition because, under the circumstances, whether Lewis has lost a vital bodily function was an issue to be determined by the jury.
In the absence of any controlling legal authority examining the medical malpractice cap, we turn to decisions concerning the no-fault act for guidance regarding when the applicability of an exception to the statutory cap should be decided as a matter of law. Under the no-fault act, noneconomic losses may be recovered if the injured person suffered death, a serious impairment of body function, or permanent serious disfigurement. MCL 500.3135(1); MSA 24.13135(1). MCL 500.3135(2)(a); MSA 24.13135(2)(a), as it currently exists, sets forth when the determination of serious impairment of body function and permanent serious disfigurement are questions of law for the court. However, before the amendment of this section by 1995 PA 222, the statute was silent with regard to this issue. In the absence of a legislative directive regarding the matter, the Supreme Court determined that, if reasonable minds could differ with regard to whether the plaintiff sustained a “serious impairment of a body function,” the issue should be submitted to the trier of fact, even if there is no material factual dispute with respect to the nature and extent of the plaintiffs injuries. DiFranco v Pickard, 427 Mich 32; 398 NW2d 896 (1986).
Like the no-fault act before 1995 PA 222, the statute limiting noneconomic damages in medical malpractice actions was silent concerning whether the determination of an exception to the cap should be decided as a matter of law until 1993 PA 78. As the Court did in DiFranco, we conclude that if reasonable minds could differ with regard to whether the plaintiff “has lost a vital bodily function,” the issue should be submitted to the trier of fact, regardless of whether there is a material factual dispute about the nature and extent of the plaintiffs injuries.
Whether reasonable minds could differ with regard to whether Lewis lost a vital bodily function depends on how the term “vital” is defined. The term was not defined by the Legislature. Random House Webster’s College Dictionary (1992) provides the following definitions arguably applicable in this instance: (1) “of, pertaining to, or necessary to life: vital processes,” (2) “necessary to the existence, continuance, or well-being of something; indispensable; essential,” (3) “of critical importance; vital decisions.” The meaning of the word “vital” in the phrase “lost a vital bodily function” is critical to the outcome of this case. If vital bodily functions are limited to those that are “necessary to life,” as argued by Krogol, then the court properly granted summary disposition because reasonable minds could not differ that walking does not fall within that definition. On the other hand, if as suggested by plaintiffs, “vital” is defined as broadly as “pertaining to . . . fife,” walking would be considered “vital” and the issue should have been decided by the jury-
We conclude that the Legislature did not intend the phrase “loss of a vital bodily function” to mean loss of a function “necessary to life.” If construed in this way, the exception becomes virtually redundant of the first exception, “There has been a death.” Krogol suggests that one can lose a function necessary to sustain life and still be alive. Krogol offers the examples of people on life support or dialysis and people who receive transplants such as the heart, lungs, or kidneys. We agree with Krogol that the Legislature’s use of the words “loss” and “vital” in this exception indicate a higher threshold than in the no-fault act, in which any body function need only be seriously impaired. However, we conclude that a definition of “vital” that basically restricts the exception to those on life support or dialysis and those who received transplants was not intended by the Legislature.
We also conclude that the Legislature did not intend the phrase “loss of a vital bodily function” to mean loss of a bodily function “pertaining to” life. Because every body function pertains to life in some way, defining vital in this way makes the word mere surplusage. By including the word “vital,” the Legislature indicated that not all injured patients who had lost a bodily function would be exempt from the cap.
We believe that the Legislature included the word “vital” to indicate the degree of importance that the lost bodily function must have in order for the exception to apply. In the context of the no-fault act limitation “serious impairment of body function,” the Supreme Court held that the impaired body function need not be an important body function. DiFranco, supra at 39. If the word “vital” had been omitted from the statute, courts may have reached a similar result with respect to MCL 600.1483(1)(g); MSA 27A.1483(1)(g) and concluded that the loss of any bodily function came within the exception. The inclusion of the word “vital” was intended to restrict the applicability of the exception. However, we do not believe that the Legislature intended for the trier of fact to simply determine if loss of the function results in death, as would be the case if vital was defined as “necessary to life.” Rather, we conclude that the Legislature included the term “vital” to restrict the exception to individuals who have lost bodily functions that are considered to have a high degree of importance. The Legislature uses the term “vital” as an indication of the level of importance in other statutes, such as MCL 2.101(2)(a); MSA 3.448(1)(2)(a) (“the expansion of the tourism industry is vital to the growth of the slate’s economy”), MCL 247.661(2)(i); MSA 9.1097(11)(2)(i) (referring to state transportation projects as “vital to the economy of the state”), and MCL 324.74102(1)(c); MSA 13A.74102(1)(c) (“Michigan state parks are . . .vital to local economies”).
Krogol was not entitled to summary disposition because reasonable minds could differ regarding whether Lewis “has lost a vital bodily function.” A trier of fact could reasonably conclude that walking is a vital bodily function and that Lewis “has lost” this function. Lewis testified that she is in a wheelchair “basically the whole day, other than to transfer to the couch.” She can walk seventy-five to one hundred feet if she has something “to hang onto.” She uses a walker when she “go[es] in and out of doors.” Her legs can hold her weight for “a short time.” Although she is able to walk to some extent with the aid of a walker, we believe that reasonable minds could differ regarding whether she “has lost” the ability to walk. Accordingly, the issue must be resolved by the trier of fact.
We reject plaintiffs’ argument that the exception in subsection f applies. Reasonable minds would agree that no “organ” of Lewis was “removed.”
In light of our determination that the issue whether Lewis has lost a vital bodily function should be resolved by a jury, we need not address plaintiffs’ claims that summary disposition should not have been granted because Krogol’s motion was not adequately supported by an appropriate affidavit.
We also decline to address plaintiffs’ constitutional challenges to MCL 600.1483; MSA 27A.1483 and their argument that the provision discriminates against the disabled contrary to provisions of the Americans With Disabilities Act (ADA). “Constitutional questions are not dealt with hypothetically or in the abstract.” Citizens For Pretrial Justice v Goldfarb, 415 Mich 255, 273; 327 NW2d 910 (1982). Unless and until a jury (1) renders a verdict in plaintiffs’ favor, (2) determines that Lewis has not lost a vital bodily function, and (3) awards noneconomic damages in excess of the statutory cap, plaintiffs’ cannot properly assert that the statute has infringed on their constitutional rights. The jury’s failure to do any of the above will render unnecessary any decision about the constitutionality of the statute because its provisions will not have affected plaintiffs’ recovery. Therefore, resolution of the constitutional challenges are premature at this time. See also Ryan v Ore Lake, 56 Mich App 162; 223 NW2d 637 (1974). Similarly, we conclude that plaintiffs cannot properly argue that MCL 600.1483(1); MSA 27A. 1483(1) violates the ADA unless and until the provisions of MCL 600.1483(1); MSA 27A.1483(1) result in diminution of plaintiffs’ recovery.
The order granting Krogol summary disposition is reversed and the case is remanded for further proceedings. We do not retain jurisdiction.
Kelly, P.J., concurred.
1993 PA 78 rewrote this section effective April 1, 1994. Unless otherwise indicated, references to the statute will be to the statute as it was before April 1, 1994.
Pursuant to subsection 4 of the statute, this amount is adjusted to reflect the cumulative annual percentage increase in the consumer price index.
MCL 600.2946a; MSA 27A.2946a, which applies to noneconomic damages in products liability actions, contains the phrase “permanent loss of a vital bodily function.” However, we have found no published opinions interpreting the phrase in that statute.
MCL 600.3101 et seq.; MSA 24.13101 et seq.
1993 PA 78 made clear that the applicability of any of the exceptions to the statutory cap is decided by the court. After the amendment, MCL 600.6304(6); MSA 27A.6304(6) and MCL 600.1483; MSA 27A.1483 both indicate that the court must determine whether one or more of the exceptions apply.
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Gage, J.
In this action arising out of a one-vehicle automobile accident, plaintiff appeals as of right from an order granting summary disposition to defendants pursuant to MCR 2.116(C)(10). We reverse and remand.
Plaintiff, aged twenty-one, and nineteen-year-old defendant Billy Joe Anderson, Jr., (hereinafter the singular word “defendant” refers to Billy Joe Anderson, Jr.) started drinking together at a bar around 9:30 P.M. on the night of the automobile accident that forms the basis of plaintiffs lawsuit. Before meeting plaintiff at the bar, defendant had already consumed a few beers that he had brought from home. The two young men later proceeded together to a second bar. Defendant drove both parties in an automobile owned by his father.
While at the first bar, plaintiff bought several beers and mixed drinks for both himself and defendant. In their depositions, the parties disagreed about whether plaintiff paid for all of the drinks or whether defendant also purchased alcohol. At the second bar, they each drank two more beers. Plaintiff recalled that he paid for only one round. Defendant again testified that plaintiff bought both rounds. The parties left the second bar together. Defendant was driving at a high rate of speed when he lost control of the automobile, which skidded 107 feet, jumped the curb, and hit a tree. Plaintiff was severely injured.
As a result of the accident, defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor (OUIL) and being a minor in possession of alcohol in a motor vehicle. Plaintiff filed the complaint underlying this suit, in which he alleged that defendant acted negligently and in viola tion of Michigan law in driving at an excessive rate of speed, driving without due care and caution and with wilful and wanton disregard for the safety of other people and property, and driving under the influence of liquor. The complaint further alleged that defendant drove the vehicle with the implied consent and knowledge of his father, Billy Joe Anderson, Sr., the owner of the automobile.
The defendants moved for summary disposition pursuant to MCR 2.116(C)(10). They argued that although Billy Joe, Jr., had violated several traffic laws, plaintiff admitted that he had bought alcohol for the nineteen-year-old in violation of MCL 436.33(1); MSA 18.1004(1). Plaintiffs furnishing of alcohol to a minor, defendants contended, contributed to Billy Joe, Jr.’s intoxication and the subsequent accident and deprived plaintiff of a cause of action. Citing this Court’s holding in Larrow v Miller, 216 Mich App 317; 548 NW2d 704 (1996), the circuit court held that plidntiff’s active participation in defendant’s intoxication barred his claim.
Plaintiff moved for reconsideration, arguing that the circuit court incorrectly relied on Larrow in granting defendants’ motion because the “noninriocent party doctrine” applies only to cases brought under the dramshop act, MCL 436.22; MSA 18.993. Larrow was a dramshop case in which only the defendants who were tavern owners and operators were granted summary disposition. Further, plaintiff argued that his furnishing of alcohol to a minor was not the sole cause of his injuries, that defendant’s car eless, drunken driving also contributed to the accident, and therefore the apportionment of fault among the parties should be left to the finder of fact. The cir cuit court denied plaintiffs motion for reconsideration. The court noted that, while plaintiff correctly asserted that Larrow was a dramshop case and therefore not binding precedent in the present suit, plaintiff nonetheless could not assert a cause of action because his illegal act in furnishing alcohol to a minor barred his claim under the wrongful-conduct rule.
Michigan has long followed a common-law maxim that when a plaintiffs action is based on his own illegal conduct, the claim is generally barred. Orzel v Scott Drug Co, 449 Mich 550, 558-559; 537 NW2d 208 (1995). This maxim, known as the wrongful-conduct rule, has its exceptions. The mere fact that a plaintiff engaged in illegal conduct at the time of his injury does not mean that his claim is automatically barred. Id. at 561. To fall under the bar of the rule, the plaintiffs conduct must be prohibited or almost entirely prohibited under a penal or criminal statute. Id. There must also be a sufficient causal nexus between the plaintiffs illegal conduct and the plaintiffs asserted damages. Id. at 564. Another possible exception to the wrongful conduct rule is where both the plaintiff and the defendant have engaged in illegal conduct, but the defendant’s culpability for the damages is greater than the plaintiff’s culpability. Id. at 569. This may occur, for example, where the plaintiff has acted “under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age.” Id. (citation omitted). Finally, a plaintiffs claim is not barred by his wrongful conduct if a statute violated by the defendant explicitly authorizes recovery by a person similarly situated as the plaintiff. Id. at 570. If the statute is silent regarding recovery, courts are left to infer whether the Legislature clearly intended persons similarly situated as the plaintiff to seek recovery. Id.
On appeal, plaintiff argues that the circuit court erred in granting summary disposition to defendants because the court confused the wrongful-conduct rule with the “non-innocent party doctrine” that applies only to cases brought under the dramshop act, MCL 436.22; MSA 18.993. Plaintiff further argues that the court erroneously failed to apply the proximate cause requirement of the wrongful-conduct rule and that the court failed to consider an exception to the wrongful-conduct rule that allows a plaintiff to pursue an action if the defendant’s culpability is greater than the plaintiff’s. Finally, plaintiff argues that the circuit court erred in not finding that the owner’s liability statute, MCL 257.401(1); MSA 9.2101(1), provided plaintiff with a cause of action.
We agree that the circuit court erred in applying the wrongful-conduct rule to the facts of the present case. We reverse on the ground that the issue of the parties’ degrees of negligence was a question of fact for the factfinder to determine under Michigan’s comparative negligence law, and the circuit court therefore erred in granting summary disposition to defendants.
lilis Court reviews an order granting summary disposition de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). A motion brought under MCR 2.116(C)(10) tests the factual basis underlying a plaintiff’s claim. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). The circuit court may grant a motion brought pursuant to MCR 2.116(C)(10) when, “[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” Id.
We first note that plaintiff correctly asserts that the circuit court’s initial application of the noninnocent party doctrine was in error. That doctrine, which prevents a person who contributed to a defendant’s intoxication from recovering for injuries caused by that intoxication, applies only to actions brought against licensed alcohol retail establishments under the dramshop act. Arbelius v Poletti, 188 Mich App 14, 21-23; 469 NW2d 436 (1991). The circuit court clearly erred in initially granting summary disposition on this ground. The doctrine “developed in relation to a statutory cause of action” and “applies only to dramshop actions and not to actions for common-law negligence based in part upon a violation of MCL 436.33; MSA 18.1004.” Id. at 22-23.
The present action, as the circuit court correctly noted in its ruling on plaintiff’s motion for reconsideration, is not based on the dramshop act. Plaintiff based his complaint on common-law and statutory negligence principles, specifically on Billy Joe, Jr.’s alleged negligence in driving at an excessive rate of speed under the prevailing conditions, failing to drive with due care and caution, failing to keep his automobile constantly under control, driving in a manner that showed a wilful or wanton disregard for the safety of persons or property, and driving while under the influence of intoxicating liquor or controlled substances.
Plaintiff also alleged that Billy Joe, Jr., was negligent in failing to obey and conform to the Michigan Vehicle Code, noting violations of the statutes con- coming driving under the influence of intoxicating liquor, MCL 257.625; MSA 9.2325, operation of a vehicle after impairment of ability due to consumption of intoxicating liquor, MCL 257.625(3); MSA 9.2325(3), reckless driving, MCL 257.626; MSA 9.2326, careless driving, MCL 257.626b; MSA 9.2326(2), violation of speed restrictions, MCL 257.627; MSA 9.2327, violation of speed limits, MCL 257.628; MSA 9.2328, and the owner’s liability statute, MCL 257.401; MSA 9.2101. Plaintiff further alleged that the violation of the above common-law and statutory duties proximately caused plaintiff’s injuries.
Evidence was presented that both plaintiff and defendant violated penal statutes. For defendant’s part, he was charged with OUIL and being a minor in possession of alcohol in a motor vehicle. As for plaintiff’s statutory violation, both plaintiff and defendant testified in their depositions that plaintiff bought at least some of the alcohol consumed by defendant on the evening of the accident. The parties do not dispute that defendant was only nineteen years old on the date of the accident and that plaintiff wíis twenty-one years of age. Thus, there is no genuine issue of fact regarding plaintiff’s violation of MCL 436.33(1); MSA 18.1004(1), which provides in pertinent part:
Alcoholic liquor shall not be sold or furnished to a person unless the person has attained 21 years of age. Except as otherwise provided in subsection (2) and subject to subsection (4), a person who knowingly sells or furnishes alcoholic liquor to a person who is less than 21 years of age, or who fails to make diligent inquiry as to whether the person is less than 21 years of age, is guilty of a misdemeanor. . . . [A] person who is not a retail licensee or a retail licensee’s clerk, agent, or employee and who violates this subsection shall be fined $1,000.00 and may be sentenced to imprisonment for up to 60 days for a first offense, shall be fined $2,500.00 and shall be sentenced to imprisonment for up to 90 days for a second or subsequent offense, and may be ordered to perform community service.
This statute has been construed by our Supreme Court as a penal statute. Longstreth v Gensel, 423 Mich 675, 692; 377 NW2d 804 (1985). Violation of a penal statute can be prima facie evidence of negligence. Id. However, plaintiffs negligence should not bar his lawsuit. The rule that a plaintiffs contributory negligence acts to bar any recovery from the defendant was abandoned in Placek v Sterling Heights, 405 Mich 638, 650; 275 NW2d 511 (1979), and replaced with comparative negligence. Under a pure comparative negligence system, a plaintiffs negligence merely reduces the amount of the plaintiffs recovery. liability is allocated in proportion to the parties’ degree of fault. Jennings v Southwood, 446 Mich 125, 130-131; 521 NW2d 230 (1994).
Furthermore, plaintiff’s violation of a statute should also not automatically bar his suit under the wrongful-conduct rule. As the Michigan Supreme Court noted in Manning v Bishop of Marquette, 345 Mich 130, 136; 76 NW2d 75 (1956):
For a plaintiff to be barred of an action for negligent injury ... his injury must have been suffered while and as a proximate result of committing an illegal act. The unlawful act must be at once the source of both his criminal responsibility and his civil right. The injury must be traceable to his own breach of the law and such breach must be an integral and essential part of his case. [Citations omitted.]
In other words, “if a complete cause of action can be shown without the necessity of proving the plaintiffs illegal act, the plaintiff will be permitted to recover notwithstanding that the illegal act may appear incidentally and may be important to the explanation of other facts in the case.” 1 Am Jur 2d, Actions, § 45, p 753. Thus, the fact that plaintiff violated MCL 436.33(1); MSA 18.1004(1) does not by itself bar his lawsuit, because plaintiff need not prove his violation of the statute to fully plead his cause of action.
[W]ith few exceptions, the courts have long since discarded the doctrine that any violator of a statute is an outlaw with no rights against anyone, and have recognized that, except in so far as the violator must resort to an illegal contract or an illegal status as the basis of the defendant’s duty to him, one who violates a criminal statute is not deprived of all protection against the torts of others. . . .
The accepted rule now is that a breach of statute by the plaintiff is to stand on the same footing as a violation by the defendant. [Prosser & Keaton, Torts (5th ed), § 36, p 232.]
Moreover, plaintiff’s wrongful conduct was not of the type that typically invokes the rule and bars a plaintiff’s cause of action. We note that of the opinions cited in Orzel, supra, in which the application of the wrongful-conduct rule was considered, four cases involved murder, two arson, two illegal gambling, and the rest involved embezzlement, perjury, an illegal contract, or statutory rape. See id. at 559. The Orzel Court specifically noted that “where the plaintiff’s illegal act only amounts to a violation of a safety statute, such as traffic and speed laws or requirements for a safe workplace, the plaintiff’s act, while illegal, does not rise to the level of serious misconduct sufficient to bar a cause of action by application of the wrongful-conduct rule.” Id. at 561.
MCL 436.33; MSA 18.1004, the statute prohibiting selling or furnishing alcohol to persons under twenty-one years of age, falls within the Liquor Control Act, which regulates liquor traffic within the state and “involves the public health, safety, and morals.” Longstreth, supra at 683. The statute protects a particular interest — freedom from injury caused by the use of alcohol by a person under the age of twenty-one. Id. at 693. As such, we find that the statute is a safety statute, the violation of which does not by itself bar a plaintiff’s cause of action. Orzel, supra at 561.
Plaintiff’s suit is based on defendant’s alleged negligent acts of driving an automobile while under the influence of intoxicating liquor and at high speeds. As the Supreme Court recognized in Longstreth, a minor driver who knowingly consumes alcohol is as guilty of a summary offense as the social host who furnished the driver with alcohol in violation of the dramshop act. Id. at 697. The Longstreth Court also adopted the reasoning of Young v Caravan Corp, 99 Wash 2d 655; 663 P2d 834 (1983); amended 672 P2d 1267 (1983), in which the state of Washington’s courts found that the contributory negligence of a minor driver who consumes alcohol diminished his recovery against a social host in proportion to the percentage of the minor’s negligence. Id.
We recognize that the present case does not involve a minor driver’s lawsuit against the adults who furnished him with alcohol and Longstreth is therefore not exactly on point, but we nonetheless find that the principles enunciated in Longstreth are instructive in resolving the present matter. As a minor, Billy Joe, Jr., is within the class of persons the Legislature sought to protect in enacting MCL 436.33(1); MSA 18.1004(1). Longstreth, supra at 693. Although minors are not considered competent to handle the effects of intoxication, the law presumes that they are competent to drive an automobile in a nonnegligent manner. Id. at 697-698. We find that sufficient evidence was presented to the circuit court to raise a question of fact concerning Billy Joe, Jr.’s negligence as a cause of plaintiff’s injuries. Accordingly, and because plaintiff’s claim was not automatically barred by his statutory violation either under the wrongful-conduct rule or the superseded doctrine of contributory negligence, the circuit court should not have granted summary disposition to defendants. If the trier of fact determines that plaintiff’s own negligence was a proximate cause of his injuries and was equal to or greater than defendant’s negligence in causing the accident in which plaintiff was injured, comparative negligence principles will ensure that plaintiff does not recover for his own fault. We express no opinion regarding the relative negligence of plaintiff and defendant, because this is a matter that should be decided by the finder of fact. Id. at 698. However, principles of comparative fault should be considered by the circuit court on remand.
Finally, we note plaintiff’s argument that the circuit court erred in failing to consider whether Billy Joe Anderson, Sr., might be held liable for plaintiffs injuries under the owner’s liability statute, MCL 257.401(1); MSA 9.2101(1). Although this issue is unpreserved because plaintiff failed to raise it below, we may still consider it because it involves a question of law and the facts necessary for its resolution have been presented. Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98-99; 494 NW2d 791 (1992). We agree that the circuit court erred in granting summary disposition to Billy Joe Anderson, Sr. MCL 257.401(1); MSA 9.2101(1) provides in pertinent part:
The owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by the common law. The owner is not liable unless the motor vehicle is being driven with his or her express or implied consent or knowledge. It is presumed that the motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of the injury by his or her spouse, father, mother, brother, sister, son, daughter, or other immediate member of the family.
The purpose of this statute is to place the risk of damage or injury on the person who has the ultimate control of the motor vehicle as well as the person in immediate control. North v Kolomyjec, 199 Mich App 724, 726; 502 NW2d 765 (1993). The owner’s liability under the statute is nonderivative. Wilson v AlHuribi, 55 Mich App 95, 98; 222 NW2d 49 (1974). To subject an owner to liability under the statute, an injured person need only prove that the defendant is the owner of the vehicle and that it was being operated with the defendant’s knowledge or consent. North, supra at 726-727. Defendants did not contest that the vehicle driven by Billy Joe, Jr., on the night in question belonged to Billy Joe Anderson, Sr. Moreover, the statute clearly states that Billy Joe, Jr., as the owner’s son, was presumed to have driven the vehicle with Billy Joe Anderson, Sr.’s knowledge and consent. MCL 257.401(1); MSA 9.2101(1). Furthermore, plaintiff’s violation of a statute in furnishing alcohol to Billy Joe, Jr., does not block his cause of action under this statute. The Legislature in enacting the owner’s liability statute chose not to limit the applicability of it exclusively to innocent parties. Osner v Boughner, 180 Mich App 248, 268-269; 446 NW2d 873 (1989). “[ A]ny person” is granted authority to pursue a civil action under the statute. Id. at 268. Thus, it was error for the circuit court to dismiss the case against Billy Joe Anderson, Sr., under the owner’s liability statute.
In light of the above considerations, we hold that it was error for the circuit court to grant summary disposition to defendants under the wrongful-conduct rule because plaintiff does not base his cause of action on his own violation of a statute. Moreover, there are causation issues for the trier of fact to determine, and defendant’s own negligence precludes such a result. Furthermore, the circuit court erred in failing to consider plaintiff’s cause of action against Billy Joe Anderson, Sr., under the owner’s liability statute. Finally, the principles of comparative fault should resolve any issues concerning plaintiffs own negligence and culpability for his injuries.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
The parties have not informed this Court of the disposition of these charges.
Pursuant to MCL 500.3135; MSA 24.13135, plaintiff will be able to recover for any noneconomic losses only if he has suffered “serious impairment of body function, or permanent serious disfigurement.” In cases filed on or after March 28, 1996, plaintiffs cannot recover for noneconomic losses if they are found to be “more than 50% at fault.” | [
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Per Curiam.
The Grievance Administrator seeks to discipline several lawyers for taking improper steps to obtain the recusal of two circuit judges. A hearing panel granted summary disposition in favor of the lawyers, and the Attorney Discipline Board affirmed. We reverse the judgment of summary disposition, and remand this case to the hearing panel for further proceedings.
i
In a formal complaint, the Grievance Administrator alleges misconduct on the part of respondents Harold S. Fried, Charles J. Golden, and James J. Rostash. Mr. Fried maintains a law office in Oakland County. Messrs. Golden and Rostash have offices in Monroe County.
During the time in question, the three judges of the Monroe Circuit Court were James J. Kelley, William F. LaVoy, and Daniel L. Sullivan. The Grievance Administrator alleges that Judge Kelley and Judge LaVoy had a reputation within the local legal community of being tough sentencing judges, while Judge Sullivan had the reputation of being somewhat more lenient.
Mr. Golden is Judge Kelley’s first cousin — Mr. Golden’s father is the brother of Judge Kelley’s mother. Mr. Rostash is Judge LaVoy’s brother-in-law— Judge LaVoy is married to Mr. Rostash’s sister. These relationships are close enough to require judicial disqualification under MCR 2.003(B)(6)(b). Further, Administrative Order No. 1979-1 of the Monroe Circuit Court provided for the automatic disqualification of Judge Kelley from every case in which Mr. Golden appeared as attorney for a party.
In Count I of the complaint, the Grievance Administrator alleged that the three respondents conspired “to improperly affect the judicial assignment of criminal cases” by participating “in a scheme to initiate or accept associations as co-counsel by [Mr. Golden] so as to take advantage of the perpetual disqualification of [Judge Kelley].” The complaint listed twenty-four Monroe Circuit Court criminal cases in which this occurred.
In Count n, the Grievance Administrator similarly alleged a conspiracy by the three to obtain the disqualification of Judge LaVoy by having Mr. Rostash appear as co-counsel. Thirty-nine Monroe Circuit Court criminal cases were listed in Count II.
In Count m, the Grievance Administrator alleged that, in yet another criminal case, Mr. Golden was retained to represent a defendant whose case had been assigned to Judge LaVoy. Mr. Golden advised the defendant and his family to retain Mr. Rostash “for the specific purpose of causing Judge LaVoy’s disqualification.” It is alleged that Mr. Noble and his family retained Mr. Rostash “for the sum of $1,000, for the specific purpose of [gaining Judge LaVoy’s disqualification].”
Count IV concerned a postdivorce custody dispute in Monroe Circuit Court. The mother consulted Mr. Golden, telling him that she did not like Judge LaVoy, to whom the case was assigned. Mr. Golden advised her that she “could have her case transferred from the docket of Judge LaVoy to another judge simply by hiring [Mr. Rostash] to represent her in the matter.” The mother then retained Mr. Rostash, telling him that she was doing so for the purpose of getting her case assigned to a different judge. Such a transfer did occur. The Grievance Administrator thus alleges that Messrs. Golden and Rostash referred and accepted this custody matter “for the specific purpose of causing the disqualification of Judge LaVoy and the reassignment of the matter to another judge.”
Count v of the complaint concerns a criminal case that was assigned to Judge Kelley. At the time of the assignment, the defendant was represented by counsel. Mr. Golden filed an appearance as co-counsel, with the result that Judge Kelley disqualified himself. The case was then assigned to Judge LaVoy, at which point Mr. Rostash filed an appearance as co-counsel. Judge LaVoy disqualified himself, and the case went to Judge Sullivan. Shortly after the case was assigned to Judge Sullivan, the defendant offered a plea, and received a probationaiy sentence. The Grievance Administrator says that Messrs. Golden and Rostash referred and accepted representation in that case “for the specific purpose of causing the disqualification of Judges Kelley and LaVoy and the reassignment of the matter to another judge.”
The Grievance Administrator alleged that, through these actions, the respondents violated various provisions of the Michigan Court Rules, the Michigan Rules of Professional Conduct, and the Michigan Code of Professional Responsibility. However, many of these provisions are either inapplicable or can fairly be subsumed within the Grievance Administrator’s principal allegation, which is that the three lawyers violated MCR 9.104. This rule prohibits:
(1) conduct prejudicial to the proper administration of justice;
(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach; [or]
(3) conduct that is contrary to justice, ethics, honesty, or good morals[.]
H
The respondents moved for summary disposition, and the hearing panel granted their motion. MCR 2.116(C)(8). The hearing panel explained:
It is well established that attorney disciplinary proceedings are quasi criminal in nature. [State Bar] Grievance Administrator v Freid, 388 Mich 711 [202 NW2d 692] (1972). Respondent in such a quasi criminal proceeding is entitled to the right of fair notice and/or warning. State Bar v Freid, supra. In order for conduct to serve as the basis for an ethical violation, it must be clearly proscribed. Matter of Miles A. Jaffa [sic], ADB, Case No. 90-154-GA (Board Opinion 8-20-93). In that Board decision, it was noted
“We believe that a finding of misconduct must be based upon conduct prohibited in the applicable rules, not conduct looked upon with suspicion or disfavor.”
At the time that the Respondents were alleged to have engaged in this conduct, there was no clear proscription against it. In point of fact, it has been argued that the Respondent’s conduct is no different than the conduct of other attorneys who associate themselves with other counsel who have a personal relationship with the judge in the hopes that the association will affect the outcome of their case. While the Hearing Panel members look with suspicion and disfavor on the conduct alleged by the Grievance Administrator, it is the opinion of the Panel members that said conduct was not clearly a violation of the disciplinary rules as claimed by the Grievance Administrator.
The Attorney Discipline Board affirmed. Stating its agreement with the quoted passage from the panel’s opinion, the adb similarly came to rest on the absence of a specific prohibition against the alleged conduct. In this regard, the board stated:
This case presents potentially difficult questions as to the specificity with which the ethical constraints applicable to an attorney’s conduct must be framed. Of the possible bases of misconduct alleged, we find colorable only the claim that this conduct is “prejudicial to the administration of justice.” Many have debated the wisdom of such generality in the formulation of a standard of conduct. However, the standard remains in place in Michigan and in' other states which have adopted Rule 8.4(d) of the Model Rules of Professional Conduct. While the rule is designedly a “catchall” provision, this breadth does not allow for the discipline of all types of attorney conduct viewed with suspicion and disfavor. Rather, the better view limits the sweep of this rule to “violations of well understood norms and conventions of practice.” 2 Hazard & Hodes, The Law of Lawyering, § 8.4:501, p 957. Also compare In re Ruffalo, 390 US [544], 556; 88 S Ct 1222, 1229; 20 L Ed 2d 117 (1968) (concurring opinion of Justice White) (discipline should not rest upon a “determination after the fact that conduct is unethical if responsible attorneys would differ in appraising the propriety of that conduct”).
We understand that every type of conduct giving rise to discipline cannot be anticipated and defined with specificity in a lawyer code. However, we also recognize that these respondents are caught in a clash between the obligation to zealously represent their clients despite personal inconvenience or disagreement with the client’s objectives and the obligation to refrain from conduct prejudicial to the administration of justice as that obligation is interpreted by the Grievance Administrator. Many or perhaps most of the finest members of the bar would probably have nothing to do with the relatively blatant conduct alleged in the complaint. But, it is by no means clear that all reasonable practitioners would conclude that such or similar conduct was “prejudicial to the administration of justice” rather than the aggressive but permissible pursuit of “whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.” Comment, MRPC 1.3. Accordingly, we must be cautious not to read a broad rule too broadly and unfairly impose discipline where the conduct could stem from an attempt to comply with another, equally important, duty. As our Supreme Court remarked in another context:
“There are a large number of gray areas in the law. When a question is doubtful, the lawyer’s obligation to his client permits him to assert the view of the law most favorable to his client’s position.” [State Bar v Corace, 390 Mich 419, 434; 213 NW2d 124 (1973).]
As members of the public and of the bar, we find it extremely distasteful that a lawyer would trade upon his or her status with respect to a sitting judge under the circumstances alleged here. Perhaps there should be a rule prohibiting a lawyer’s acceptance of employment for the sole purpose of disqualifying a judge. However, we do not find that the conduct alleged by petitioner clearly constitutes a violation of a well understood practice norm or convention. Accordingly, we affirm the panel’s order of dismissal.
Two members of the adb dissented. They noted that one federal jurisdiction has said that an attempt to force recusal “doubtless disrupts the proper functioning of the judicial system and may be disciplined.” Standing Committee on Discipline of the United States Dist Court for the Central Dist of California v Yagman, 55 F3d 1430, 1443 (CA 9, 1995). The dissenters continued:
We would also find that petitioner has stated a claim that respondents’ conduct exposes the legal profession to obloquy, contempt, censure, and reproach. MCR 9.104(2). The hearing panel viewed respondents’ alleged conduct with suspicion and disfavor. We are convinced that the public would view such conduct as “case fixing” of a sort — and with some justification. In one of the counts against respondents Rostash and Golden only, it is alleged that an attorney represented a criminal client who initially drew Judge Kelley. Respondent Golden allegedly filed an appearance as co-counsel. It is further claimed that the case was reassigned to Judge LaVoy, at which point respondent Rostash filed an appearance. Finally, according to the complaint, the case went to Judge Sullivan, and the client received probation.
Elementary principles of fairness have led to the adoption of a blind draw system for assigning cases in this state. MCR 8.111(B). Those same principles dictate that the process for assigning cases should not be interfered with absent good reason. These respondents are accused by the Administrator of enabling persons coming before the court to “purchase the assignment of a particular judge to decide issues in [their] case[s].” We agree that such conduct exposes the courts and the legal system to obloquy, contempt, censure, or reproach.
The Grievance Administrator has applied to this Court for leave to appeal.
in
The ADB majority says that the respondents “are caught in a clash between the obligation to zealously represent their clients despite personal inconvenience or disagreement with the client’s objectives and the obligation to refrain from conduct prejudicial to the administration of justice as that obligation is interpreted by the Grievance Administrator.”
However, this is not a case about the ethical conflicts that may arise during the course of representation. This is a case about whether a lawyer should enter a case at all, and about whether it is misconduct to traffic in familial relationships that require judicial disqualification. The “clash” described by the ADBmajority is possible, but can arise only after a lawyer has agreed to represent the client, and thus has undertaken the duty of zealous representation. Ordinarily, no such conflict would exist at the time the lawyer is considering whether to enter a case.
In his amended complaint, the Grievance Administrator alleges “a scheme to initiate or accept associations as co-counsel by [all three respondents] so as to take advantage of the perpetual disqualification of [Judge Kelley and Judge LaVoy].” Elsewhere in the complaint, the Grievance Administrator alleges that Messrs. Golden and Rostash referred and accepted cases “for the specific purpose of causing the disqualification.” As the adb majority correctly observes, this is conduct that a majority of lawyers would find offensive on its face.
The adb correctly observes that there are a variety of permissible steps that have a degree of similarity to the charged conduct. For instance, a lawyer may file a motion for change of venue that recites legal grounds, but is motivated by a desire to move the case to a jurisdiction where the lawyer believes success is more likely. A lawyer may accept employment and be brought into a case because the client (or an attorney already involved in the case) believes the lawyer has a record of success in appearances against an opposing lawyer, or before a particular judge. Indeed, a lawyer can accept employment even if the client’s subjective motive is one that the lawyer would be loathe to share, such as an explicit desire to avoid lawyers of one gender or the other.
The situations recounted in the preceding paragraph are fundamentally different, both in degree and in kind, from the conduct alleged in the present complaint. Without regard to the subjective motivation of the participants, those situations involve a lawyer actually practicing law — seeking to advance the client’s interests through the words and actions that are customary in the profession. In the instant case, the Grievance Administrator charges that the respondents were selling, not their professional services, but their familial relationships.
The court rules prohibit:
(1) conduct prejudicial to the proper administration of justice;
(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach; [or]
(3) conduct that is contrary to justice, ethics, honesty, or good morals[.] [MCR 9.104.]
The alleged conduct falls squarely within these provisions. It is prejudicial to the administration of justice, because it is an undue interference with the proper assignment of cases under MCR 8.111.
The alleged conduct surely exposes the legal profession and the courts to contempt and ridicule — no reasonable person would approve a system in which one can obtain a more lenient judge (and, presumably, a more lenient sentence) in a criminal case by paying $1,000 to a judge’s relative.
The alleged conduct is contrary to justice, ethics, honesty, and good morals. It is wrong. Thus the adb majority properly concluded that “[mjany or perhaps most of the finest members of the bar would probably have nothing to do with the relatively blatant conduct alleged in the complaint.”
IV
The question before us today is simply whether the Grievance Administrator has stated a claim on which relief can be granted. He has. The fact that proof problems may arise does not alter that conclusion.
It is unethical conduct for a lawyer to tamper with the court system or to arrange disqualifications, selling the lawyer’s family relationship rather than professional services. A lawyer who joins a case as co-counsel, and whose principal activity on the case is to provide the recusal, is certainly subject to discipline.
On the other hand, the rules do not prohibit a lawyer from taking a case that might lead to a recusal. Mr. Golden and Mr. Rostash are not precluded from practicing law in the Monroe Circuit Court. The Grievance Administrator alleges that there are sixty-six cases in which the respondents acted improperly to gain recusals. To the extent that these are cases in which Mr. Golden or Mr. Rostash appeared as lawyers and were substantially involved in the representation of the client, then the recusal was an unavoidable result of the rules established to avoid conflicts of interest.
v
An appearance filed principally to obtain the recusal (or de minimis activity as co-counsel to a lawyer who is handling the case, with the co-counsel designation serving principally to obtain the recusal) is a ground for discipline. The complaint filed by the Grievance Administrator states a claim on which relief can be granted. Accordingly, we reverse the judgments of the Attorney Discipline Board and of the hearing panel, and we remand this case to the hearing panel for further proceedings. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Cavanagh, Boyle, Weaver, Kelly, and Taylor, JJ., concurred.
The Grievance Administrator filed a formal complaint in July 1993. Early proceedings led to the dismissal of some of the charges in the original complaint, and the case is currently proceeding on the basis of an October 1994 amended formal complaint. Because the case has yet to be tried and the present appeal concerns the propriety of a summary disposition under MCR 2.116(C)(8), we take as true the facts alleged in the amended complaint.
Judge Kelley retired at the end of his term in 1988. He was replaced January 1, 1989 by Judge Michael W. LaBeau.
Judge Sullivan has also retired. His successor is Judge Joseph A. Costello, Jr., who took office January 1, 1997.
The facts in this case extend back to the mid-1970s, before the promulgation of the Michigan Court Rules of 1985. Prior versions of the pertinent paragraph include MCR 2.003(B)(5) as promulgated in 1985, and GCR 1963, 912.2(a)(5).
The Code of Professional Responsibility was replaced by the Rules of Professional Conduct on October 1, 1988.
The previous provision was GCR 1963, 953.
In the past, questions have arisen with regard to the authority of a hearing panel to grant summary disposition under MCR 2.116. See, e.g., Grievance Administrator v Attorney Discipline Bd, 539 NW2d 505 (Mich, 1995), Grievance Administrator v Attorney Discipline Bd, 543 NW2d 309 (Mich, 1995). However, no such issue has been raised in this appeal.
Yagman was a complex dispute in which disciplinary questions were mingled with issues regarding the right of free speech under the First Amendment. The Ninth Circuit set aside a two-year suspension that had been imposed on Mr. Yagman for his vigorous criticism of a particular United States district judge.
Of course, a lawyer who is already involved in a case could face such a dilemma, trying to decide whether to employ a person such as Mr. Golden or Mr. Rostash as co-counsel, in order to gain a disqualification. However, such a lawyer (including Mr. Fried) would be bound by the principles we set forth in this opinion.
Indeed, informal ethics opinion JI-44, issued November 1, 1991, by the State Bar states:
With regard to the conduct of lawyers who may take advantage of a “perpetual disqualification” by associating as co-counsel or referring cases to the targeted lawyer, such association or referral, when instigated with an eye toward affecting judicial assignments, is improper ....
Both the lawyer seeking the association or offering the referral, and the targeted lawyer would be violating MRPC 8.4(c)[14] by participating in the scheme.
A lawyer may not, however, state or imply an ability to exercise improper influence over a court or judge. MRPC 8.4(d).
In his brief to this Court, the Grievance Administrator writes, “The attorney fee paid to the co-counsel was really nothing more than a charge for getting the case before a preferred judge.”
The respondents point out that they did not affect the initial assignment of a case to a judge. We are invited to contrast the conduct discussed in Grievance Administrator v August, 438 Mich 296; 475 NW2d 256 (1991); In re Reinstatement of August, 441 Mich 1207 (1993). It is true that the August situation was worse, involving corruption of a court, but the effect on the proper assignment of cases was, in the end, not dissimilar.
We reverse a summary disposition under MCR 2.116(C)(8). At this stage, we do not foreclose the respondents from filing a motion under MCR 2.116(C)(10). But see footnote 7. | [
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Per Curiam.
The defendant pleaded guilty of first-degree criminal sexual conduct and was sentenced to serve twenty to thirty years in prison. The Court of Appeals affirmed, rejecting the defendant’s claim that the sentencing guidelines had been improperly scored. We also affirm.
i
The defendant sexually abused his daughters. This criminal behavior began in 1991 and extended into 1993, when one of his daughters reported the abuse at school. Originally charged with a variety of offenses, he pleaded guilty in December 1993 to one count of first-degree criminal sexual conduct. MCL 750.520b(l)(a); MSA 28.788(2)(l)(a).
Sentencing took place in March 1994. Scoring the guidelines, the circuit court gave 50 points for Offense Variable 12. That variable reads:
OV 12 CRIMINAL SEXUAL PENETRATION (S)
50* 2 or more criminal sexual penetrations
25* 1 criminal sexual penetration
0 No criminal sexual penetrations
Score all penetrations involving the offender arising out of the same criminal transaction.
* In esc 1st and esc 3rd do not score the one penetration that forms the basis of the conviction offense.
The sentencing proceeding was brief, and the defendant did not challenge the scoring of the guidelines.
The sentence imposed by the circuit court was a term of twenty to thirty years in prison. The twenty-year minimum sentence was at the high end of the range recommended by the guidelines.
On appeal, the defendant challenged the scoring of the guidelines, and Court of Appeals ruled that further proceedings were necessary in light of an error in the scoring of ov 12. 213 Mich App 801; 541 NW2d 282 (1995). All three judges of the panel agreed that this outcome was required by the Court’s prior decision in People v Polus, 197 Mich App 197; 495 NW2d 402 (1992). However, two panel members expressed the opinion that Polus had been wrongly decided and indicated that, were they free to so hold, they would conclude that OV 12 was properly scored in the present case.
The Court of Appeals soon vacated its opinion and ordered that “a special panel shall be convened pursuant to Administrative Order No. 1994-4 to resolve the conflict between this case and People v Warner, 190 Mich App 26 [475 NW2d 397] (1991).” 213 Mich App 801.
After further briefing, the seven-judge special panel issued its decision. 218 Mich App 78; 554 NW2d 25 (1996). The lead opinion, with three signatures, was authored by Judge Smolensk. He wrote to uphold the scoring of ov 12. Employing a different analysis, Judge Markman wrote a concurring opinion that also bears three signatures. Judge M. J. Kelly dissented.
The defendant has applied to this Court for leave to appeal.
n
The dispute regarding the scoring of ov 12 centers on whether penetrations that occur on separate occasions are to be scored under the variable. The instructions state that points are to be scored for “all penetrations involving the offender arising out of the same criminal transaction.” Elsewhere in the guidelines manual, the word “transaction” is defined in this manner:
Transaction: The acts occurred in a continuous time sequence and displayed a single intent or goal. [Michigan Sentencing Guidelines (2d ed, 1988), p 10.]
This issue regarding the proper scoring of ov 12 has divided the Court of Appeals. In People v Warner, supra, the Court of Appeals appeared to conclude that it was permissible to score 50 points for ov 12 where there had been an extended period of molestation. However, the present issue was not developed in the Warner opinion, and the statements of the Court of Appeals can be characterized as dicta.
In People v Polus, supra, the majority said that the 50-point scoring decision in such an instance was error, since separate assaults committed over a lengthy period were not part of the “same criminal transaction.” The contrary view in Warner was dismissed as “mere dicta.” 197 Mich App 201, n 3.
Judge Griffin dissented in Polus, saying that Warner was “binding precedent.” He added:
The majority orders a remand to the sentencing court “for the limited purpose of determining if its sentence would be changed in light of the correct scoring of the guidelines.” Ante 201-202. Such a remand is unnecessary and a waste of valuable judicial resources. The sentencing judge clearly believed that the sentence he imposed was proportionate and an appropriate social response to the crime and the criminal. I agree and therefore would affirm defendant’s sentence. No reasonable person would find the sentence disproportionate, considering defendant’s conduct. Under the circumstances of this case, I would find a sentence of any lesser term of years to be disproportionately lenient and therefore invalid.
The scoring of the guidelines is not an end in itself but rather a means to achieve a proportionate sentence. Because the majority and I agree that the defendant’s sentence is proportionate and valid, the ordered remand is an academic exercise without a purpose. As appellate judges, we should “decline ... to engage the trial court in the futile exercise of marching up the sentencing hill again, only to hand down the same sentence and march back down. People v Ristich, 169 Mich App 754, 759; 426 NW2d 801 (1988), and United States v Tucker, 404 US 443, 449-452; 92 S Ct 589; 30 L Ed 2d 592 (1972) (Blackmun, J., dissenting). [197 Mich App 207-209.]
In People v Bivens, 206 Mich App 284; 520 NW2d 711 (1994), a majority of the panel disagreed with Polus on the issue whether Warner was dicta. Instead, the majority accepted Judge Griffin’s view, expressed in Polus, that Warner was controlling precedent. The majority thus upheld the scoring of 50 points for ov 12.
The issue arose again in People v Hyland, 212 Mich App 701; 538 NW2d 465 (1995). There, the panel agreed with Judge Kelly’s Bivens concurrence, concluding that it was bound to follow Polus and that Bivens was “wrongly decided.” 212 Mich App 711-714.
In the present case, the special panel was summoned to resolve the conflict in earlier cases, and was thus freed from the question whether Warner was binding precedent. The members of the special panel were thus able to focus on the merits of the ov 12 issue, and their several opinions well summarize the competing schools of thought with regard to ov 12. In his lead opinion, Judge Smolensk: concluded:
Applying the plain language of the guidelines, we conclude that, as in this case and in Warner, a defendant’s ongoing penetrations of a victim over an extended period can constitute acts that occurred in a continuous time sequence and displayed a single intent or goal. This is especially true in the present case. The victim was a child who lived in the same household as defendant. Defendant molested or penetrated the victim daily for more than two years. That conduct under these circumstances gives rise to an inference that defendant intended to conceal his continued molestation of the victim during that extended period. Thus, such conduct constituted acts that occurred in a continuous time sequence and displayed a single intent or goal.
Alternatively, even if we were to find that the guidelines’ definition of “transaction” was ambiguous and judicial construction therefore warranted, we would conclude that the foregoing construction is a reasonable construction that best accomplishes the object and purpose of ov 12. [218 Mich App 83-84.]
Concurring, Judge Markman discussed People v Vonins (After Remand), 203 Mich App 173, 176-177; 511 NW2d 706 (1993), in which the Court had said that the same prior conviction could be scored under both prv 2 and prv 6. Judge Markman continued:
Similarly, the assessment of points for prior instances of criminal sexual penetration for both ov 12 and OV 25 would be proper. These variables are directed, at least arguably, toward different purposes: ov 12 specifically addresses penetrations arising out of the same criminal transaction whereas ov 25 addresses contemporaneous criminal acts. Yet most conduct covered by ov 12, under either the broad or narrow reading of it, would also constitute contemporaneous criminal acts under ov 25. Because these variables, although not identical, do overlap, the conduct that would support scoring under ov 12 would generally also support scoring under ov 25.
Accordingly, we should interpret the criminal sexual conduct guidelines with the understanding that factors may be scored under more than one offense variable. In this context, the rule that we should interpret specific variables so as to produce an harmonious whole does not support the narrow reading of the “continuous time sequence” element of ov 12 over the broader reading.
As discussed above, both the narrow reading and the broader reading of this element of ov 12 are reasonable. Therefore, under a de novo standard of review, we would not reverse the trial court’s reading of OV 12. We conclude that ov 12 is broad enough to reach the prior instances of criminal penetration at issue here. Accordingly, we find no abuse of discretion in the trial court’s scoring of ov 12 for defendant’s prior instances of criminal sexual penetration. We additionally conclude that the same factor may be scored under more than one offense variable. [218 Mich App 90-91.]
In dissent, M. J. Kelly presented his view that the Polus interpretation is correct:
There is no reasonable justification for calling numerous instances of criminal sexual conduct over a two-year period the same criminal transaction. The defendant was not charged with “numerous criminal sexual penetrations over a two-year period.” He was charged in five specific counts. There is no such count or crime entitled “years of molestation.” Not even the tortured exegesis of the mind of a medieval monk can deduct four from five and come up with years of molestation. For what little it is worth, I think People v Polus, 197 Mich App 197, 199; 495 NW2d 402 (1992), was correctly decided. The Supreme Court could not muster the votes to grant leave on an application, 447 Mich 952 (1994), and we should not supply their missing votes.
In conclusion, I believe it is unseemly to couch appellate decision-making in language posturing indignation at the crimes and criminals on review, torturing support for the interpretation that results in the longest durance for the criminal. If the prosecutor here wanted two, three, four, or five convictions and the resulting sentencing consequences, he need not have entered into a bargain for one conviction. The result reached in Polus was eminently correct; the instruction on its face limits consideration to penetrations involved in the same criminal transaction. Prior criminal sexual penetrations between the defendant and the victim were scored under ov 25, and properly so. If the trial court concluded that ov 25 inadequately addressed the importance of prior penetrations, it had authority to exceed the guidelines with very little risk of reversal by way of appellate review, but that is another subject. [218 Mich App 93-94.]
III
The special panel has concluded that it was not error for the circuit court to score 50 points for ov 12 in this case. While we have no disagreement with that conclusion, we believe it entirely unnecessary to reach the merits of this scoring question.
As Judge Grifein correctly explained in Polus, “The scoring of the sentencing guidelines is not an end in itself but rather a means to achieve a proportionate sentence.” 197 Mich App 208. Where, as here, the sentence is not disproportionate, there is no basis for relief on appeal.
In People v Mitchell, 454 Mich 145, 173-178; 560 NW2d 600 (1997), we elaborated on the point that is central to an understanding of the Michigan sentencing guidelines: They are not the product of legislative action. We repeated in Mitchell, 454 Mich 175, our earlier statement that, “because our sentencing guidelines do not have a legislative mandate, we are not prepared to require adherence to the guidelines.” People v Milbourn, 435 Mich 630, 656-657; 461 NW2d 1 (1990).
In Mitchell, these considerations led to the principle that guides us in the resolution of the present case:
Simply stated, because this Court’s guidelines do not have the force of law, a guidelines error does not violate the law. Thus, the claim of a miscalculated variable is not in itself a claim of legal error.
In Mitchell, we elaborated further on these concepts, observing again that only an “invalid” sentence is subject to being set aside on appeal:
We have long recognized and recently reaffirmed that a sentence may be set aside only when it is invalid. People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981); In re Dana Jenkins, 438 Mich 364, 373; 475 NW2d 297 (1991). In Jenkins, we observed in dicta that the defendant may challenge the scoring of the sentencing guidelines under MCR 6.429; and in People v Hernandez, 443 Mich 1; 503 NW2d 629 (1993), and People v Walker, 428 Mich 261; 407 NW2d 367 (1987), we discussed preservation of guidelines scoring issues. To the extent that our decisions have been construed to authorize review and reversal for scoring errors or errors of misinterpretation, Milboum’s correct observation that guidelines do not have the force of law is controlling. Such relief is unavailable.
The challenge here asserted is directed not to the accuracy of the factual basis for the sentence, but, rather, to the judge’s calculation of the sentencing variable on the basis of his discretionary interpretation of the unchallenged facts. The challenge does not state a cognizable claim for relief. There is no juridical basis for claims of error based on alleged misinterpretation of the guidelines, instructions regarding how the guidelines should be applied, or misapplication of guideline variables.
As emphasized in Milboum, the guidelines are vehicles to assist the trial judge regarding where a given defendant falls on the sentence continuum recognized by Milboum. Where the guidelines calculation differs from the trial court’s intended sentence, the judge is alerted that the sentence falls outside a normative range and should be evaluated to assure that it is not unfairly disparate, has a rational basis, and is not disproportionate. On postsentence review, guidelines departure is relevant solely for its bearing on the Milboum claim that the sentence is disproportionate. Thus, application of the guidelines states a cognizable claim on appeal only where (1) a factual predicate is wholly unsup ported, (2) a factual predicate is materially false, and (3) the sentence is disproportionate.
Appellate courts are not to interpret the guidelines or to score and rescore the variables for offenses and prior record to determine if they were correctly applied. Guidelines are tools to aid the trial court in the exercise of its authority and a framework for the appellate courts’ inquiry into the question whether the sentence is disproportionate and, hence, an abuse of the trial court’s discretion. The Court of Appeals erred in reversing defendant’s sentence.
This analysis is equally applicable in the present case. A putative error in the scoring of the sentencing guidelines is simply not a basis upon which an appellate court can grant relief.
For these reasons, we reject the analysis provided in the opinion of the Court of Appeals, but affirm the judgments of the Court of Appeals and the circuit court. MCR 7.302(F)(1).
Mat,t,ett, C.J., and Brickley, Boyle, and Weaver, JJ., concurred.
The circuit court also gave points for several other offense variables, including ten points under ov 6 (“Multiple Victims”). The defendant later disputed the scoring of ov 6, but it did not alter the offense severity level and, for reasons explained later in this opinion, need not be addressed on appeal.
The circuit court’s scoring of the guidelines placed the defendant in cell a-iv of the life-csc grid; the recommended range for the minimum sentence was 96-240 months.
In a separate concurrence, Judge McDonald stated his agreement with the Polus opinion.
In the sentencing guidelines, the word “transaction” appears only in ov 12.
Mr. Warner was sentenced as an habitual offender, and thus the sentencing guidelines did not apply. Michigan Sentencing Guidelines (2d ed, 1988), p 6. Further, his sentence was found not to violate the principle of proportionality. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
The majority in Polus did not order a resentencing, but rather a remand to determine whether the sentence would be changed in light of the change in the scoring. The trial court was told to bring the defendant before the court for a resentencing only if it first determined that the scoring change would result in a new sentence. 197 Mich App 201-202.
See Administrative Order No. 1990-6, 436 Mich ixxxiv, which was extended in several subsequent administrative orders. This “first-out” rule was amended in Administrative Order No. 1994-4, 445 Mich xci, and was extended indefinitely in Administrative Order No. 1996-4, 451 Mich xciii.
8 Mr. Polus pleaded guilty of third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), and was sentenced to a term of six to fifteen years in prison.
In a concurring opinion, Judge M. J. Kelly characterized Warner as “simply inapplicable” since the panel in that case “never addressed the issue.” 206 Mich App 288. However, Judge Kelly concurred in the majority’s decision to affirm, because the sentencing judge in Bivens had clearly indicated that the sentences imposed were the proper sentences, without regard to how the guidelines might be scored.
In Hyland, the panel concluded:
At sentencing, the trial court erred in considering all of the prior conduct of defendant in the scoring of ov 12. Pursuant to Polus, supra, the trial court can only consider conduct arising out [of] the same criminal transaction in the scoring of ov 12. We affirm defendant’s convictions. We remand for resentencing in a manner consistent with this opinion. We do not retain jurisdiction. [212 Mich App 714]
For the same reason, error cannot be predicated on a claim that the instructions were misinterpreted.
As in Walker, an “effective challenge” involving guidelines is a challenge to the accuracy of the factual information on which the sentence was based, a challenge grounded in the due process clause under Townsend [v Burke, 334 US 736; 68 S Ct 1252; 92 L Ed 2d 1690 (1948)]. Walker authorized a review procedure for the preservation of sentencing appeals. Hernandez limited Walker by holding that an appellate court is not compelled to grant a motion to remand where there was “evidence supporting the judge’s initial scoring of the sentencing guidelines variable . . . Id. at 3. As in Walker, the challenge in Hernandez centered on the factual accuracy of the basis for the sentence. Properly understood, Hernandez affirmed that the accuracy of the information and the adequate notice in the presentence report gave rise to reviewable claims on appeal. It did not authorize a challenge on the basis of the judge’s interpretation of the facts underlying the sentence and the scoring decisions based on it, that is, the manner in which the judge scored the variables.
Contrary to defendant’s claim, we have never held that the sentencing guidelines provide a clear basis on which sentences might be overturned on appeal. Moreover, in requiring judges to state their reasons for departing from the guidelines, the order does not speak of appellate review, but, rather, of the Sentencing Guidelines Advisory Commission’s use of that information in generating analysis of whether the guidelines are working effectively.
To ask whether it is a misapplication of the guidelines to score. points for criminal sexual conduct under ov 12, where prior penetrations were not part “of the same transaction,” is to ask a question whose answer has no legal relevance on appeal. As an inquiry about what the guidelines committee had in mind regarding assessment measures that do not have the force of law, the inquiry, at best, asks for an opinion about how the majority of judges would have sentenced the defendant.
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Riley, J.
In this appeal, we are asked to review the fairness of the trial for two police officers who were convicted of second-degree murder for killing a suspected drug user while attempting to arrest him while the suspect was holding contraband. We conclude that defendants have demonstrated that their juries were exposed to extrinsic influences that created a real and substantial possibility of prejudice, dépriving them of their constitutional rights under the Sixth Amendment. These errors, however, were harmless beyond a reasonable doubt with regard to defendant Larry Nevers. Therefore, we affirm defendant Nevers’ conviction. With regard to defendant Walter Budzyn, we conclude that the extrinsic influences were not harmless beyond a reasonable doubt. Accordingly, we vacate defendant Budzyn’s conviction and remand for a new trial.
FACTS AND PROCEEDINGS
Defendants Budzyn and Nevers were police officers with the Detroit Police Department. They were on duty when the incident occurred that resulted in Malice Green’s death. Both were tried at a single criminal proceeding with two different juries.
On November 5, 1992, at approximately 10:15 P.M., defendants were patrolling in the city of Detroit in plain clothes in an unmarked vehicle. They apparently observed a Tempo, driven by Malice Green, with bullet holes in its front passenger door. Defendant Nevers, who only gave testimony before his own jury, testified that he observed the car pull up in front of a house known for its drug activity. Budzyn and Nevers stopped behind the Tempo to investigate. The home, with a storefront attached to it, was occupied by Ralph Fletcher. Fletcher explained that others used his house for illegal drug activities. Robert Hollins and Theresa Pace, witnesses to the event, were present at Fletcher’s house and had been smoking cocaine that evening.
Defendant Budzyn, who only testified before his own jury, said that he witnessed Robert Knox running along the building and explained that he chased Knox because, apparently by mistake, he believed that Knox had been in the vehicle with Green. Budzyn caught Knox, brought him around to the front of Fletcher’s place, and patted him down for weapons. He also patted down Fletcher, who had been in the car with Green. Manuel Brown, who had been smoking cocaine at Fletcher’s place, was walking away from the house, but stopped to watch this activity. Nevers asked Malice Green for his driver’s license. Green did not respond to Nevers’ request, but walked around to the passenger side of his vehicle and got in. Green was sitting in the passenger seat, with his legs hanging out the open doorway. Budzyn came around to the passenger side, shined his flashlight on him, and asked for his license. Green began to look in the glove compartment, grasped at something that was on the floor, apparently cocaine, and Budzyn asked him to let go of what was in his hand.
At this point, there is substantial disagreement in the testimony given by defendants Budzyn and Nevers and the witnesses to the incident, Brown, Fletcher, Hollins, Knox, and Pace regarding what happened.
The five civilian witnesses testified that after Green refused to open his hand, Budzyn began to hit him repeatedly on the hand with the police flashlight, telling him to open his hand. Budzyn then climbed onto Green, who did not resist but did not comply, straddling him. Brown testified that Budzyn struck Green about ten times on his head with the flashlight. Fletcher, who was only three to five feet away, testified that Budzyn repeatedly hit Green on the hand. Hollins said that he heard Budzyn hit Green six or seven times, and, although he did not see the blows land, that these blows must have landed on Green’s head. Knox said that he saw Budzyn hit Green in the hand because Green did not open it when Budzyn asked. Pace testified that from the position on which Budzyn sat on Green, he must have been hitting him on the head.
These five witnesses also said that, while Budzyn was struggling with Green in the Tempo, Nevers struck Green on his knee several times. Brown and Fletcher said that Nevers then went around to the other side of the car, the driver’s side, opened the door, and struck Green, who was now lying on the front seat, on the head with his flashlight. Nevers instructed these people to leave the scene.
In contrast to this testimony, Budzyn explained to his jury that while Green was sitting in the passenger side of the vehicle, he suspected that Green was holding narcotics in his fist. He said that he grabbed Green’s right arm and that Green kicked him with both his legs. He produced evidence of a small injury to his knee. Budzyn said that he turned and fell backward into the vehicle, dropping his flashlight. Budzyn denied that he ever hit Green at all. Budzyn also said that he only held Green’s hands because he suspected that he was holding narcotics. Budzyn called for backup assistance. Budzyn explained that he heard “two hits” after Nevers went around to the driver’s door and said that he later was “shocked” to find so much blood on the scene. Budzyn said he retrieved four rocks of cocaine from inside the vehicle.
Like Budzyn, Nevers testified to his jury that he assisted Budzyn when Green resisted Budzyn’s efforts to open his hand. Nevers explained that he only hit Green on his knees when Green brought his knees up to stop Nevers from prying open his hand. Nevers then went to the other side of the vehicle because Budzyn told him that Green was attempting to get out of the other side of the car. Nevers then told the people from Fletcher’s place to leave. Nevers explained that he hit Green in the head with his flashlight because Green was grabbing for his gun. Nevers said that after he struck him, “[Green] finally let go of my gun and I did not hit him [again]” at that time. Nevers flagged down the EMS medical technicians who had been called to the scene. Green continued to struggle with the officers and Nevers said he saw something “shiny” in Green’s right hand and he struck him again, the blow landing on Green’s head, because Nevers feared he might be carrying a razor blade or knife. Nevers admitted that, during the course of the incident he hit Green five or six times on the head with his flashlight.
The EMS medical technicians arrived in two vehicles. The first to arrive were Albino Martinez and Mithyim Lewis. The other EMS vehicle soon arrived with two other medical technicians, Lee Hardy and Scott Walsh. Several marked police cars arrived soon after the EMS vehicles. Martinez, Lewis, Hardy, and Walsh all testified that Green was covered with blood and was hanging from the driver’s side door when they arrived. There was a pool of blood under his head on the street. These witnesses said that Nevers struck Green in the head with his heavy police flashlight repeatedly even though Green was not offering any significant resistance. Martinez and Walsh said that Nevers told Green to open his hands and hold still, and that, when he did not, Nevers hit him with the flashlight. Martinez and Lewis said that Nevers hit Green four times in the head with the flashlight, while Hardy said he saw Nevers hit Green approximately ten times in the head. Martinez explained that Green was “dazed,” and Hardy described him as “stuporous,” relating that Green was uttering only a few words like “wait” while Nevers was striking him.
Officer Robert Lessnau, who arrived on the scene in one of the marked police vehicles, pulled Green from the vehicle. The ems medical technicians testified that Lessnau hit Green with his fists. Martinez and Walsh said that while Lessnau was striking Green, Nevers also hit Green twice in the ribs. Green finally released the car keys he held in one hand and a piece of white paper, apparently for rolling rock cocaine, he held in the other. The uniformed officers, including Sergeant Freddie Douglas, then cuffed Green’s hands behind his back as Green struggled. The EMS medical technicians began rendering care to Green. Green suffered a seizure and, soon after, died.
The people presented Dr. Kalil Jiraki, an assistant Wayne County Medical Examiner, as a medical expert to testify regarding the nature of Green’s wounds and the cause of his death. Dr. Jiraki testified that Green died from “[b]lunt force trauma to [his] head” and that he suffered at least fourteen blows to the head. Dr. Jiraki also explained that Green had 0.5 micrograms of cocaine in his body, indicating that he was under the influence of cocaine at the time of his death. He concluded, however, that it had “no bearing on the cause of his death.” In response, defendants presented three pathologists, one of whom, Dr. L. G. Dragovic, testified that he identified eleven blunt-force injuries to Green’s head.
Budzyn and Nevers were charged with second-degree murder. Beginning with the first reports of Green’s death, the case produced a firestorm of media publicity in the Detroit metropolitan area. The incident occurred soon after the California state courts acquitted four white Los Angeles police officers who had been videotaped beating black motorist Rodney King. The acquittal in the King case resulted in a terrible riot in Los Angeles that drew the attention of the national media. The media reports in Detroit of Green’s death included a comparison of the two incidents. Before the trial began, the Detroit Police Department fired defendants. The city of Detroit also agreed to a multimillion dollar settlement with Green’s estate. In response to some criticisms of the settlement, a city attorney stated that a generous settlement might spare the city the riotous violence that racked Los Angeles after the acquittal of the police officers. These events occurred during the interval between Green’s death in November 1992 and the start of defendants’ trial in June 1993, seven months later.
Defendants moved to sever the trials, and the trial court refused to separate the proceedings, but did grant defendants separate juries. Nevers asked for a change of venue because of the extensive pretrial publicity, but the trial court denied this motion. The trial court began the voir dire on June 2, 1993. The people began presenting their case on June 18, 1993. During a recess near the end of trial, on August 5 and 6, 1993, the trial court provided the juries with several film videos to watch to entertain themselves, including a copy of Malcolm X. The film begins with a video of the Los Angeles police officers beating Rodney King. Defendants moved for a mistrial on this basis, but this motion was denied.
After approximately seven weeks of trial, the juries began deliberating on August 13, 1993. Budzyn and Nevers were convicted of second-degree murder. The jury in Budzyn’s trial deliberated for eight days, and, in Nevers’ trial, the jury deliberated for nine days. Budzyn was sentenced to serve eight to eighteen years, and Nevers was sentenced to twelve to twenty-five years in prison. Defendants moved for a new trial, but the trial court denied this motion.
On appeal by right, the Court of Appeals consolidated defendants’ appeals and affirmed the convictions in an unpublished opinion per curiam, issued March 22, 1995 (Docket Nos. 170477, 170478). Defendants appealed to this Court, and this Court granted leave. In reviewing the many claims of error raised on appeal, we have only provided an analysis of the claim regarding the extrinsic influences on the jury. For the remaining claims, we believe that the Court of Appeals has properly responded to these claims and we affirm its decisions with regard to them.
ANALYSIS
I. THE STANDARD FOR CLAIM OF ERROR FOR EXTRINSIC INFLUENCES ON THE JURY
A defendant tried by jury has a right to a fair and impartial jury. People v Tyburski, 445 Mich 606, 618; 518 NW2d 441 (1994) (Mallett, J., plurality opinion), citing Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968). During their deliberations, jurors may only consider the evidence that is presented to them in open court. See United States v Navarro-Garcia, 926 F2d 818, 820 (CA 9, 1991). Where the jury considers extraneous facts not introduced in evidence, this deprives a defendant of his rights of confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment. See Hughes v Borg, 898 F2d 695, 700 (CA 9, 1990).
In order to establish that the extrinsic influence was error requiring reversal, the defendant must initially prove two points. First, the defendant must prove that the jury was exposed to extraneous influ enees. See Marino v Vasquez, 812 F2d 499, 504 (CA 9, 1987). See also United States v Caro-Quintero, 769 F Supp 1564, 1573 (CD Cal, 1991). Second, the defendant must establish that these extraneous influences created a real and substantial possibility that they could have affected the jury’s verdict. See Hughes, supra at 700. Generally, in proving this second point, the defendant will demonstrate that the extraneous influence is substantially related to a material aspect of the case and that there is a direct connection between the extrinsic material and the adverse verdict. See Caro-Quintero, supra at 1574, citing United States v Bagnariol, 665 F2d 877, 885 (CA 9, 1981). If the defendant establishes this initial burden, the burden shifts to the people to demonstrate that the error was harmless beyond a reasonable doubt. We examine the error to determine if it is harmless beyond a reasonable doubt because the error is constitutional in nature. See People v Anderson (After Remand), 446 Mich 392, 406; 521 NW2d 538 (1994). The people may do so by proving that either the extraneous influence was duplicative of evi dence produced at trial or the evidence of guilt was overwhelming. See Hughes, supra at 700.
II. APPLICATION OF THE STANDARD
A. EXPOSURE TO EXTRINSIC EVIDENCE
In examining the extraneous influences that defendants claim affected the juries’ verdicts, we shall focus on defendants’ claims from juror affidavits that the juries were exposed to (1) the film Malcolm X, (2) media reports during the trial of existing contingency plans in case of rioting, i.e., placing the National Guard on alert and closing the freeways in the event the juries acquitted, and (3) the claim that the jurors considered as a factor defendants’ supposed participation in the police unit known as stress (Stop the Robberies Enjoy Safe Streets) even though there was no evidence about this produced at trial. There is no dispute that the trial court provided the film Malcolm X to the juries, which they watched (at least in part) on August 5, 1993, and on August 6, 1993. This viewing occurred near the end of trial: the trial had begun on June 18, 1993, and the juries began deliberating on August 13, 1993. The affidavits confirmed that the jurors had watched, at least in part, Malcolm X. Defendants also rely on these juror affidavits to assert that the two other alleged extrane ous influences listed above affected the juries’ verdicts.
Generally, jurors may not impeach their own verdict by subsequent affidavits showing misconduct in the jury room. People v Pizzino, 313 Mich 97, 108; 20 NW2d 824 (1945). See also Tanner v United States, 483 US 107; 107 S Ct 2739; 97 L Ed 2d 90 (1987). As the Court of Appeals has previously noted, once a jury has been polled and discharged, its members may not challenge mistakes or misconduct inherent in the verdict. Rather, oral testimony or affidavits may only be received on extraneous or outside errors, such as undue influence by outside parties. See Hoffman v Monroe Public Schools, 96 Mich App 256, 257-258; 292 NW2d 542 (1980), citing Mattox v United States, 146 US 140; 13 S Ct 50; 36 L Ed 917 (1892). See also People v Larry Smith, 106 Mich App 203, 211-212; 307 NW2d 441 (1981). As the United States Supreme Court has explained, the distinction between an external influence and inherent misconduct is not based on the location of the wrong, e.g., distinguished on the basis whether the “irregularity” occurred inside or outside the jury room. Rather, the nature of the allegation determines whether the allegation is intrinsic to the jury’s deliberative process or whether it is an outside or extraneous influence. See Tanner, supra at 117-118. In examining these affidavits, a trial court should not investigate their subjective content, but limit its factual inquiry to determining the extent to which the jurors saw or discussed the extrinsic evidence. See Dickson v Sullivan, 849 F2d 403, 406 (CA 9, 1988).
After reviewing the three sworn juror affidavits, we believe that we may consider these affidavits to determine whether they met the threshold requirement. The three influences culled from the sworn affidavits, as identified above, were extraneous to the trial proceedings and did not result exclusively from juror misconduct inherent in the verdict. According to these sworn statements, the juries were exposed to, and considered during deliberations, extraneous factors regarding whether defendants Budzyn and Nevers were guilty of second-degree murder.
B. REAL AND SUBSTANTIAL POSSIBILITY OF PREJUDICE
We must next determine whether defendants have established that there is a real and substantial possibility that these extrinsic influences could have affected the juries’ verdict. When considering that (1) the juries viewed the film Malcolm lasa group near the end of trial, (2) the juries, or a member, were exposed during deliberations to the fact the city of Detroit was bracing for a riot in the event of an acquittal, and (3) the juries were exposed to extrinsic information, in part inaccurate, that defendants were previously members of the stress police unit, we believe that each defendant has established his initial burden.
The first of these influences that we address is the Malcolm X film. The film is a work based on Malcolm X’s autobiography. The juries viewed the film with the understanding that it had been provided, with three others, as entertainment by the trial court during a period late in trial where there were no trial proceedings. The film begins with the voice of Malcolm X’s character giving a provocative speech charging “the white man with being the greatest murderer on earth” while the viewer is shown footage of Rodney King being beaten by Los Angeles police officers, interspersed with a picture of an American flag. The Rodney King videotape is shown in slow motion, in eight segments, as the American flag begins to bum. Id. The voice-over makes an explicit reference to the city of Detroit, the location of the incident in the instant case, by stating that the black community has been deprived of democracy in the “streets of Detroit.” Id. The factual similarities between (1) Rodney King’s assault by police officers in Los Angeles as captured by the video shown at the beginning of Malcolm X and (2) the police brutality inflicted against Malice Green in Detroit, as charged, are striking. The parallel is unmistakable.
Later, in a different scene of the film, the character portraying Malcolm X states:
No, I’m telling you that devil has made dead souls out of you and I [sic], . . . Why, my brothers and sisters, he should get down on his knees. He should beg our mercy. Oh, my brothers and sisters, his kind has committed God’s greatest crime against your and my kind every day of his life. He ought to get on his knees and say he’s committed the crime. But does he do that? Does he do that? No. No, he scorns you. He splits your head with his night stick, he busts you upside of the head with that billy club, he calls you a nigger. I’m telling you he calls you a coon. That’s what he says to you — “Boy,” “Nigger.” Four hundred years is long enough. You’ve been sitting down, laying down, and bowing down for four hundred years. I think it’s time to stand up. [Emphasis added.]
In the second half of the film that was only seen by the Budzyn jury, Malcolm X’s character is forced to rescue a member of the Nation of Islam from the police station. A bystander explains that a police officer had “crack[ed]” him with (presumably) his night stick and the man began to bleed like a “stuck hog.” Soon after this episode, in scenes only viewed by the Budzyn jury, Malcolm X’s character gives a speech before an audience in which he states (interspersed with actual footage from the 1960s of violence by white police officers against the black community):
A hundred years ago, they used to put on white sheets and sic bloodhounds on us. Well, nowadays they’ve traded in the sheets — well, some of them traded in sheets— . . . they have traded in those white sheets for police uniforms. They’ve traded in the bloodhounds for the police dogs.
You’ve got these Uncle Tom negro leaders today that are telling us we ought to pray for our enemy. We ought to love our enemy. We ought to integrate with an enemy who bombs us, who kills and shoots us, who lynches us, who rapes our women and children. No! (interspersed with scene of Ku Klux Klan).
The greater context of the film did not dull these words because they are strikingly inflammatory. The power of these words might have triggered an emotional response by the jury, because defendants’ conduct, as alleged, could arguably fit the description given by Malcolm X’s character. There is some indication that it did evoke such a response. A juror from the Budzyn trial swore that apparently this scene of the film excited a response from one of the other jurors while they watched the movie as a group:
I specifically recall that segment of the movie in which Malcolm X compares police officers to the Ku Klux Klan. I also specifically recall that there was a verbal reaction by at least one juror when that speech was made.
As an extraneous influence, this film did not, strictly speaking, introduce any outside information about this event, i.e., extrajudicial facts about defendants, Malice Green, or the incident itself. Nevertheless, the viewing of the film, with its forceful words and images, may have undermined the juries’ ability to examine impartially defendants’ credibility. Both defendants testified and gave accounts of the altercation that conflicted with that of the witnesses for the prosecution. The images of police brutality from Malcolm X confirmed the people’s description of defendants’ conduct, thereby lending additional credibility to the people’s case.
Moreover, the juries may have found it difficult to set aside, when they examined the testimony of these particular defendants, the accusations expressed by Malcolm X’s character in the film, and suggested by the Rodney King videotape, that white police officers were brutal racists who could not be trusted. The jurors may have been less willing to believe that defendants, as white police officers, could be trusted. In focusing the jurors’ attention in a very emotional way on the racial element of the crime, the images from the film invited the juries to view the instant crime as a part of a pattern of police brutality, effectively asking them to redress this injustice. The juries were, however, bound to decide the case on only the facts as presented at trial and to weigh defendants’ credibility without consideration of these extraneous factors.
These themes from Malcolm X of racial bigotry by the police force tied into, and intensified, the significance of the jurors’ exposure to other facts extrinsic to the trial. The affidavits indicate that the Budzyn jury and one member of the Nevers jury were exposed to the fact, during deliberations, that the city of Detroit was bracing for a riot in the event of an acquittal. Such rioting, of course, occurred in Los Angeles after the acquittal of the white police officers who were charged with assaulting Rodney King. The juror from Budzyn’s trial swore that this fact had been discussed by the Budzyn jury during deliberations:
During the trial at one point the question was raised whether “they” would riot if we didn’t convict. Towards the end of deliberations but before I signed the verdict form, someone mentioned reports that freeways and businesses might be closed. It was also discussed that the National Guard had been put on alert for the end of the trial.
A juror in the Nevers trial indicated that he had learned from news reports and other sources about the city’s preparation for a possible riot. There is no indication that the Nevers jury ever discussed this point during deliberations. Yet, according to an affidavit, the Nevers jury did discuss, before deliberations, the “similarities between Rodney King and this case” because “it was cops beating a black man.” Like the exposure to the film, the fact that the city braced for a riot should be irrelevant to the juries’ deliberations because they are bound to issue their decisions in accordance with law. They should not consider whether there would be a riot if they acquitted. The reality is, however, that the jurors’ knowledge that the city was preparing for a possible riot may have caused them to fear an acquittal.
Furthermore, the jurors were also exposed to the supposed fact that each defendant had previously been a member of the stress unit. According to the affidavit of a juror from the Nevers trial, “[i]t was explained during deliberations that stress was a police group that regularly abused young black males in the city.” The jurors also discussed this point that defendants were prior participants in STRESS during deliberations. This is the kind of concrete, factual evidence that could substantially compromise the ability of a jury to issue a fair verdict because the evidence relates directly to the past conduct of the police officers. This extraneous influence creates more than an emotional reason to convict. It suggests, if the perceptions were true about the nature of the STRESS police unit and defendants’ participation in it, that these officers may have been acting in accordance with their preexisting racist predisposition to target young black men for abuse when they encountered Malice Green. This evidence was never introduced at trial. It is the kind of evidence that has a direct and rational connection between it and an adverse verdict. See Bagnariol, supra at 885. The United States Court of Appeals for the Eighth Circuit explained how damaging such extrinsic evidence may be when it affects a defendant’s credibility, particularly in a case, like this one, that was a credibility contest:
The [extrinsic] comments [in this case] relate to factual questions that go to the heart of the jury’s role: to weigh the relative credibility of witnesses in a case that turned almost entirely on whose version of events the jury found more credible. The jury’s duty to resolve factual questions is severely impaired when it improperly receives information that besmirches the defendants’ character. [United States v Hall, 85 F3d 367, 371 (CA 8, 1996).]
Similarly, in hearing that defendants were members of an allegedly violent and racist unit, the juries’ ability to resolve the factual questions before them may have been severely impaired.
In relying on this extrinsic evidence regarding the STRESS unit, the juries would then have had an arguably good reason, but a legally impermissible one, to accept the emotionally charged account given by the film Malcolm X of the brutality of white police officers. Moreover, by convicting defendants, the juries may have believed they were avoiding a possible riot in the city of Detroit. Considering all these factors, we believe that there is a real and substantial possibility that these external influences together could have affected the juries’ verdicts.
C. HARMLESS ERROR ANALYSIS
Because defendants have carried their initial burden, we must decide whether any error was harmless beyond a reasonable doubt. There is no dispute that the extrinsic evidence was not duplicative of other properly admitted evidence for either defendant. Hence, we must determine whether the evidence against defendants was overwhelming. See Hughes, supra at 701. We believe that these extraneous influences were harmless for defendant Nevers in light of the overwhelming evidence of his guilt, but that the errors do require reversal for defendant Budzyn because the evidence against him was not overwhelming.
In the Nevers trial, the four ems witnesses, who had no apparent motive to lie, provided interlocking testimony that Nevers repeatedly bludgeoned Malice Green in the head with his heavy police flashlight while Green was dazed and not offering significant resistance. The medical testimony of the injuries to Green’s head also substantiated this testimony. The people have proven that there was unimpeachable, compelling evidence that defendant Nevers harbored, at the very least, an unjustified intent to commit great bodily harm against Green. Thus, under Hughes, the extraneous influences were harmless. Consequently, we affirm the Court of Appeals decision to affirm defendant Nevers’ conviction.
In Budzyn’s trial, however, we believe that the evidence against defendant Budzyn, particularly considering he was convicted of second-degree murder, was not overwhelming. The evidence against him was fun damentally weaker than the evidence against Nevers for three reasons.
First, of the three civilian witnesses who testified that defendant Budzyn hit Green in the head with his flashlight (Manuel Brown, Robert Hollins, and Theresa Pace), none was able to see the flashlight actually make contact with Green’s head. Unlike the ems witnesses, they did not have a direct view of the blows. Instead, the three witnesses each inferred the fact that the flashlight hit Green in the head from the positions of the two men in the vehicle and from Budzyn’s use of the flashlight to strike Green. Brown, who arguably gave the most damaging testimony of any witness, was the farthest witness away, standing fifteen feet from Fletcher, Hollins, Knox, and Pace.
This testimony also contained some inconsistencies. The three key witnesses who testified that Bud zyn hit Green on the head with his flashlight gave conflicting testimony on the nature of the blows that Budzyn administered: Pace and Hollins testified that Budzyn lifted the flashlight above his head or shoulders and brought the flashlight down, while Brown insisted that the blows were horizontal, across his body, and that Budzyn did not lift the flashlight above his head. Also, Fletcher, who was only three to five feet away and was the closest of the witnesses to the incident, testified that Budzyn hit Green’s clenched fist with the flashlight, but that he did not see Budzyn hit Green anywhere else on his body.
Second, the civilian witnesses admitted that the altercation occurred after Green refused Budzyn’s request that he turn over the incriminating evidence he held in his hand. The civilian witnesses all agreed that Green never complied and that he struggled with Budzyn, although they said he never struck him or kicked him. In fact, Fletcher testified that during the entire episode, Budzyn held onto Green’s closed fist, attempting to retrieve the contraband. This is a very different setting from the description the ems medical technicians gave of the situation in which defendant Nevers was striking Green in the head. Because the exchange occurred in the confined context of the car with the car obscuring the witnesses’ view, their testimony that Green did not kick Budzyn does not directly rebut his claim that Green did. The medical evidence also does not necessarily contradict Budzyn’s claims, because Nevers hit Green with significant force in the head and these blows may have been the cause of Green’s extensive head injuries.
Third, in this credibility contest between Budzyn and these witnesses, the civilian witnesses all had either consumed alcohol or cocaine sometime before witnessing the exchange, three of them were friends with Green (Fletcher, Hollins, and Pace), and there was some suggestion from their testimony that they had reason to dislike these officers. This fact is relevant because an inquiry into whether an error was harmless requires a focus on the nature of the error in light of the weight and strength of the other evidence. People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996). Defendant Budzyn had searched Fletcher and Knox for weapons before defendant Nevers asked to see Malice Green’s driver’s license. Defendant Budzyn had also broken into Fletcher’s home while Fletcher and Hollins among others were there, a week and a half before this incident, searching the house without warrant, and, on another occasion, had arrested two people outside the house. Thus, these witnesses were not in the same objective position as the ems medical technicians, who, incidentally, did not offer any testimony regarding Budzyn’s actions against Green because they had not yet arrived on the scene.
Even if the jury reasonably believed the testimony of the civilian witnesses, they still might not have concluded that Budzyn was guilty of second-degree murder. The question whether Budzyn’s unnecessary use of force as described by the civilian witnesses would be second-degree murder or manslaughter is an issue for the jury. We do not believe that the only, possible reasonable conclusion to draw from this evidence is that it established beyond a reasonable doubt that he harbored an intent to kill, an intent to do great bodily harm, or to commit an act in wanton and wilful disregard that the likelihood that the natu ral tendency of his conduct was to cause death or great bodily harm. In contrast, the testimony from the ems medical technicians against Nevers made the conclusion inescapable that he was guilty of second-degree murder. We cannot say that the extraneous factors may not have affected the Budzyn jury’s verdict. We, therefore, reverse his conviction and remand for a new trial.
CONCLUSION
We affirm defendant Nevers’ conviction, but reverse defendant Budzyn’s conviction and remand his case for a new trial. Thus, we affirm in part and reverse in part the decision of the Court of Appeals.
Brickley, Cavanagh, and Weaver, JJ., concurred with Riley, J.
There were charges that their crime was racially motivated. Consequently, we note that Budzyn and Nevers are white and Malice Green is black.
Budzyn was apparently mistaken because Fletcher was the only passenger in the Tempo with Green; Knox had traveled to Fletcher’s place with Hollins at approximately 7:00 p.m. that evening. Knox had paid Hollins $15 (in cash and cocaine) to drop him off at the house.
Knox’s testimony from the preliminary examination was read to the jury because Knox died before trial.
Fletcher said he saw Nevers land two blows to Green’s head with a golf-like swing.
Officer Lessnau was charged with assault with intent to murder. He was tried at the same time as Budzyn and Nevers in a bench trial. The trial court acquitted him.
Sergeant Douglas was charged with a crime but the magistrate dismissed the charge at his preliminary examination.
The trial judge did not select the movies or approve the selections himself, but he took responsibility for the action taken by the employees of the court. The trial judge disqualified himself on ruling on defendants’ motion. The chief judge of Recorder’s Court referred the motion to a third judge who heard the motion and denied it.
451 Mich 884 (1996).
We note that one claim of error was conceded by defendants on appeal to this Court. Defendants acknowledge that their claim regarding an instructional error was resolved by this Court’s decision in People v Tims, 449 Mich 83, 99; 534 NW2d 675 (1995), in which we held that a defendant may be convicted of a crime if his culpable conduct was “a” proximate cause of death.
The inquiry whether the extrinsic influences could have affected the jury’s verdict is an objective inquiry. See Dickson v Sullivan, 849 F2d 403, 406 (CA 9, 1988).
This Court may also consider the following factors in determining whether the extrinsic influence created a real and substantial possibility of prejudice:
(1) whether the material was actually received, and if so how; (2) the length of time it was available to the jury; (3) the extent to which the juror discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict. [Marino, supra at 506.]
Stress was a controversial decoy unit of the Detroit Police Department that gained a reputation for brutality. A juror from the Nevers trial stated that “[i]t was explained during deliberations that stress was a police group that regularly abused young black males in the city." (Emphasis added.) Defendant Nevers was apparently previously a member of this unit, while defendant Budzyn apparently was not previously a member.
Before this date, on August 2, 1993, the trial court had informed the juries that they would have to be in their jury rooms on August 5, 1993, and August 6, 1993, even though there would be no court-related activity.
Defendants together produced four affidavits from jurors who sat during trial, three from defendant Nevers’ trial and one from defendant Budzyn’s trial. The trial court refused to grant an evidentiary hearing regarding these affidavits, but instead accepted the statements as true regarding what occurred before and during deliberations.
One of the affidavits that defendant Nevers relies on was not signed by the juror. We have not considered this affidavit. Defendant Nevers attempted to remedy the deficiency by producing an affidavit from an attorney who swore that the particidar juror had verbally adopted all of the statements, but only refused to sign the affidavit because she feared that it would bring “renewed pressure to her from the media and from the public.” However, the attorney cannot testify with respect to these juror’s statements because that testimony would be hearsay. Hence, the attorney’s affidavit has not cured this fundamental defect. Consequently, for this appeal, there are only three sworn juror affidavits that we may consider.
The character of Malcolm X gives a voice-over narrative at the beginning of the film:
Brothers and sisters, I am here to tell you that I charge the white man, I charge the white man with being the greatest murderer on earth. I charge the white man with being the greatest kidnapper on earth.
There is no place in this world that man can go and say he created peace and harmony. Everywhere he’s gone he’s created havoc. Everywhere he’s gone he’s created destruction. So I charge him, I charge him with being the greatest kidnapper on this earth. I charge him with being the greatest murderer on this earth. I charge him with being the greatest robber and enslaver on this earth. I charge the white man with being the greatest swine eater on this earth, the greatest drunkard on this earth. He can’t deny the charges. You can’t deny the charges. We’re the living proof of those charges. You and I are the proof. You’re not an American. You are a victim of America.
You didn’t have a choice coming over here. He didn’t say “black man, black woman, come on over and help me build America.” He said “nigger get down in the bottom of that boat and I’m taking you over there to help me build America.” Being bom here does not make you an American. I’m not an American. You’re not an Ameri can. You’re one of the twenty-two million black people who are the victims of America.
... We didn’t see any democracy on the streets of Harlem, ... on the streets of Detroit .... No, we’ve never seen democracy. All we’ve seen is hypocrisy. We don’t see any American dream. We’ve experienced only the American nightmare. [Emphasis added.]
In fact, according to a juror in the Nevers trial, one of the “juror[s]” who was “not chosen to sit [apparently a venireman] . . . actually thought that the Rodney King video was a video of the Malice Green incident.”
The juror from the Budzyn trial swore to the following:
It appeared that all jurors, including our one alternate, watched Malcolm X, including the opening segment which showed the Rodney King footage. We began the movie on Thursday [August 5, 1993] and completed it on Friday [August 6, 1993].
A juror from the Nevers trial stated that “we watched the first, but not the second video cassette of that movie.” These excerpts from the second half of the film are taken only from the second cassette.
Malcolm X confronts the police who finally relent and allow him to call an ambulance and take the bleeding man from the police station to the hospital. Id.
Defendant Budzyn testified on July 20, 1993, and defendant Nevers testified on August 3, 1993.
We are not contending that their testimony was credible, but only that their testimony should have been reviewed without bias.
This juror stated:
During our deliberations, we were allowed to go home one night. While I was home, I saw a news report that in the event of a riot, they were going to close the freeways. In addition to this information, I learned various other pieces of information at different times, both before and during trial. I had learned that the National Guard was being put on alert for our verdict.
The juror from the Budzyn trial swore that the assertion was raised during deliberations:
During the first few days of deliberations, [a] [jjuror . . . advised another juror in the presence of and within earshot of all the jurors that “they were part of stress,” referring at the time to both Nevers and Budzyn. This statement appeared to be accepted and believed by my fellow jurors.
The juror in the Nevers trial stated as follows:
During deliberations, Mr. Nevers’ participation in stress was discussed, and it kind of set the tone from the beginning of our deliberations. [Emphasis added.]
We do not intend to express an opinion about the stress unit. Rather, we are only attempting to relate the jurors’ perception about the character of the unit.
This extrinsic evidence regarding defendants participation in stress would be particularly unfair to defendant Budzyn, because not only was there no testimony regarding his participation introduced at trial, but he was apparently never a member.
We do not express an opinion regarding whether any one of these extraneous influences would have been adequate by itself to create a real and substantial possibility that the juries’ verdicts could have been affected.
Martinez and Lewis arrived at the scene at the same time. Martinez testified that Nevers hit Green while Green was dangling out of the vehicle:
Q. Could you see any ii\jury on Malice Green?
A. Just all the blood flow coming from his head.
Q. Could you describe that for us?
A. Just that he was pointed towards more of a downward position towards the street and all the blood was just coming off of his head in a big puddle outside of his car.
Q. What is the next thing that happens?
A. [Nevers is] still ordering [Green] to open his hands and hold still and, you know, Malice Green was still moving around and his hair was flicking back at the blood splashing.
Q. And then what happened?
A. Then Mr. Nevers just reached over and had him like this telling him to hold still and he didn’t hold still and he just, crack, crack.
Q. Now you’ve indicated that he, after that he starts to hit him in the head with the flashlight; is that correct?
A. Correct.
* * *
A. At that point [Sergeant Douglas] told Officer Nevers to take it easy. Said, take it easy, Larry.
Q. After that remark was made, what did Defendant Nevers do?
A. As I say, still holding on to him, was still hitting him. Then he gave two more quick flicks with the flashlight.
Q. Where did he hit Malice Green with those next two?
A. In the head again.
Similarly, Lewis noted that “[Green] was covered with blood . . . [h]is entire face, his hair appeared to be soaked with it, and on the ground,” and that Nevers hit him anyway:
Q. Now, when you walk up and you are confronted with this sight, do you say anything?
A. I asked him what happened
* * *
. . . and he said, I hit him. And if he doesn’t quit it, I’m gonna hit him again.
:|: * *
Q. What’s the very next thing you recall happening?
A. The officer told him to be still, don’t move, and he hit him twice on the head with the flashlight.
Q. Were these two blows like one right after the other?
A. Yes, sir. Two, you know, rapping motions.
Q. Where in the head did he strike him, if you can tell us?
A. In the forehead around the scalp area.
* * *
Q. All right. Then what happened?
A. He told him to be still and not to move again, and Malice Green didn’t, so he hit him on the head again.
The other two ems witnesses who arrived soon after confirmed this testimony. Walsh explained that “[Green] was covered in blood,” noting that “[h]is shirt all the way up to the chest was totally covered in blood” when Nevers struck him with his flashlight. The top three or four inches of the flashlight was covered with blood. He further testified that “[Nevers] told [Green] to drop what he had in his hand [and] he struck him once in the back of the head.” Hardy, who said that Green “had blood totally across his forehead, some coming down his face on the side,” testified that Nevers was striking Green:
Q. Now, you said that you saw [Green] being struck. Can you indicate the manner that you saw him being struck at that time when you were standing right near the rear tire or bumper of the civilian car?
A. They weren’t as rapid as the first ones that I had seen.
Q. As you were getting out of your rig?
A. Yes.
Q. Demonstrate, please, how they are.
A. They were like, you know, had more like power to them. Not as much speed.
Q. Not as much speed as the early ones?
A. As the early ones.
Q. Did they have some force behind them?
A. Yes.
Brown clarified his earlier testimony that Budzyn hit Green in the head by explaining that he did not see any actual contact:
Q. You didn’t see the contact but you saw the head go back, so you assumed there was contact there?
A. That’s correct.
Q. So yesterday when you said you saw the contact you didn’t really see it, you saw [Green’s] head bouncing back?
A. That’s correct.
Similarly, Hollins explained that he “couldn’t see” where the blows actually hit from his vantage point (“I didn’t see contact”), but, rather, he determined it from their positions.
Pace also testified that she believed that Budzyn hit Green on the head, but she was only inferring this point from their positions in the vehicle:
I couldn’t see that much into the car. There wasn’t much space left on his body he could have been hitting him but his head because of the way he was straddled on him.
Later, she admitted that she did not “see actual contact.”
Brown explained that he only saw the blows through the “rear window” of the car while Budzyn and Green were wrestling in the front seat.
Fletcher testified as follows:
Q. Mr. Fletcher, . . . [Budzyn] only hits Mr. Green in the hand?
A. That’s all.
Q. He never hit him anywhere else, did he?
A. I didn’t see him hit him anywhere else.
Brown described Budzyn’s interaction with Green as a “struggle” in which Budzyn was “trying to pull [Green’s] hand away from his body.” He said there would be “more blows, and then more wrestling, more blows and more wrestling.” Fletcher testified that Green “wrestled back.” Hollins testified that Green “scuffl[ed]” with Budzyn, trying to “get [Budzyn’s] hand off him.” Pace testified that Green’s legs were “moving in a kicking and struggling manner” and she admitted that she said in an earlier statement that Green was kicking and fighting with Budzyn.
The concurrence/dissent suggests that Budzyn “initiated” this exchange by beating Green on the hands. See Mallett, C.J., pp 131, 135. We note that Budzyn, as a police officer, would have the right to use the necessary force to arrest a suspect who is holding cocaine. See People v Doss, 406 Mich 90, 101-102; 276 NW2d 9 (1979). The question, of course, is whether his use of force was criminal because it was unnecessary.
Defendant Budzyn testified that when Green closed his fist, Budzyn believed that he was holding narcotics. Defendant Budzyn said that he grabbed Green’s right arm and that Green kicked him with his legs and that Green pulled Budzyn on top of him in the vehicle. Defendant Budzyn denied that he struck him at all with his flashlight or fist.
Brown had earlier traveled to Fletcher’s home, had used cocaine in the home, twice left the house with Knox to purchase cocaine and returned, and finally left the house before witnessing the altercation. Fletcher admitted that he had purchased and consumed alcoholic beverages that day. Hollins had driven Knox and Pace to Fletcher’s home, where Hollins smoked cocaine, drank some beer, left with Pace, before returning and witnessing the altercation. Knox admitted that he had smoked the cocaine at Fletcher’s home that Brown had purchased for him. Finally, Pace admitted that while at Fletcher’s home she had smoked cocaine.
Fletcher testified that he had known Green since they were children and that they were “very . . . good friends.” Hollins had known Green since Green’s childhood and said he “kn[e]w him well.” Pace had known Green for several months before this incident and said that they were friends.
They each referred to the officers as “Starsky and Hutch.” Pace admitted that she was “always afraid” of Budzyn. Brown said that Nevers had previously arrested him and that he served jail time. | [
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Taylor, J.
We granted leave to appeal in these consolidated cases to determine whether the public building exception to governmental immunity applies to slip and fall injuries arising from a dangerous or defective condition existing in an area adjacent to an entrance or exit, but nevertheless still not part of a public building. We are persuaded that the Legislature did not intend this exception to the broad grant of governmental immunity to apply in such circumstances because it is inconsistent with a narrow reading of the exception. We therefore hold that the public building exception is inapplicable in both cases.
I. FACTS AND PROCEEDINGS
A. HORACE v CITY OF PONTIAC
On June 17, 1989, Denise Horace tripped and fell in a hole or crack in the asphalt while proceeding toward the south entrance of the Pontiac Silverdome on a descending walkway. Horace had passed through a turnstile and was between eighteen and twenty-eight feet from the south entrance doors when she fell. Horace filed a lawsuit against the city of Pontiac in the Oakland Circuit Court, seeking compensation for her injuries. The city sought summary disposition on the basis of governmental immunity. Horace opposed the motion, citing the defective public building exception. The trial court denied the city’s motion. The Court of Appeals then denied the city’s application for leave to appeal. This Court remanded the matter to the circuit court for reconsideration in light of Wade v Dep’t of Corrections, 439 Mich 158; 483 NW2d 26 (1992), in response to the city’s application for leave to appeal. 439 Mich 1011 (1992).
Pursuant to our remand, the trial court found that Horace could not invoke the public building exception to governmental immunity because “the pothole is not a defect in a public building, but rather a defect in the sidewalk leading to the building.” Horace appealed, and the Court of Appeals remanded for reconsideration in light of Maurer v Oakland Co Parks & Recreation Dep’t (On Remand), 201 Mich App 223; 506 NW2d 261 (1993). The Court of Appeals believed a remand was appropriate because the trial court had not had the benefit of Maurer when it issued its decision. The Court of Appeals declined to apply Maurer itself, stating the record did not provide a sufficiently detailed description of the area where plaintiff fell. This Court granted the city’s application for leave to appeal, ordering the case to be argued and submitted with Adams v Michigan. 454 Mich 907 (1997).
B. ADAMS v DEP'T OF STATE HWYS & TRANSPORTATION
On September 3, 1992, Madelene Adams was walking on a cement walkway to the entrance of a building at a rest area on 1-75 when she fell in a hole in the cement walk. Adams filed a lawsuit against the state of Michigan in the Court of Claims, seeking compensation for her injuries. The state sought summary disposition on the basis of governmental immunity. Adams opposed the motion, citing the defective public building exception. The trial court granted summary disposition on the basis that the cement walk was not so much an entrance to a public building as it was a sidewalk that is in front of the rest stop, leading not only to the building, but also to a telephone, an outside map, a picnic area and a dog run. Adams appealed, and the Court of Appeals reversed on the basis of Maurer, supra, noting we had reversed Maurer on other grounds sub nom Bertrand v Alan Ford, Inc, 449 Mich 606; 537 NW2d 185 (1995). Judge Nelson dissented, criticizing Maurer. We granted the state’s application for leave to appeal. 454 Mich 907 (1997).
C. STANDARD OF REVIEW
In Adams, the Court granted the state summary disposition pursuant to MCR 2.116(C)(7) and (8). In Horace, the Court granted summary disposition pursuant to MCR 2.116(C)(7). A party may move for summary disposition under subrule (C)(7) on the basis that the claim is barred because of immunity granted by law. A party may move for summary disposition under subrule (C)(8) on the basis that an opposing party has failed to state a claim upon which relief may be granted. Only the pleadings may be considered when a motion is based on subrule (C)(8). MCR 2.116(G)(5). When a motion is premised on sub-rule (C)(7) the court must consider not only the pleadings, but also any affidavits, depositions, admissions, or documentary evidence that has been filed or submitted by the parties. MCR 2.116(G)(5). See, further, Wade, supra at 162-163. We review orders granting summary disposition de novo. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996).
n. REVIEW OF CASE LAW
It is now well established, as the result of this Court’s seminal governmental immunity opinion in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), and its progeny, that the term “governmental function” is to be broadly construed and the statutory exceptions thereto, including the public building exception, are to be narrowly construed. Wade, supra at 166; de Sanchez v Mental Health Dep’t, 455 Mich 83, 90; 565 NW2d 358 (1997).
This Court and the Court of Appeals have made numerous conflicting statements, frequently in dicta, regarding whether areas adjacent to a building come within the public building exception subsequent to Ross, supra. In Jolly v City of St Clair, 428 Mich 860; 400 NW2d 597 (1987), this Court held that a person injured on a slide that was located in a public municipal park and that was not immediately adjacent to or part of any public building did not come within the public building exception. In Reardon v Dep’t of Mental Health, 430 Mich 398, 415; 424 NW2d 248 (1988), this Court quoted Jolly, supra, as clarifying that the duty to maintain safe public places relates to, but does not extend beyond, the condition of the public building itself or the immediately adjacent premises. Yet, Reardon immediately thereafter clarified that the duty imposed by the public building exception relates to dangers actually presented by the “building itself.” Id. at 415.
Post-ftoss decisions in the Court of Appeals have been consistent in rejecting public building defect claims involving areas not immediately adjacent to a building, especially if the area of the injury was not immediately in front of an area providing ingress or egress to the building. However, in discussing areas immediately adjacent to a public building, the Court of Appeals statements have conflicted.
In Dristy v Waterford School Dist, 146 Mich App 217; 379 NW2d 428 (1985), the plaintiff slipped and fell on a snowy sidewalk approximately ten to fourteen feet from the entrance of the building. While the Court of Appeals affirmed a jury verdict of no cause of action, it did state in dicta, citing Tilford v Wayne Co General Hosp, 403 Mich 293; 269 NW2d 153 (1978), that school districts remain liable for negligent maintenance of entrance walks to buildings under their control. Dristy failed to note the existence of Ross.
In Yarrick v Village of Kent City, 180 Mich App 410, 414; 447 NW2d 803 (1989) (see n 4), the plaintiff was injured while stepping into a hole while walking across a grassy area to get to a public restroom at a roadside park. The Court of Appeals held that the public building exception did not apply because a “building itself” was not involved. The Court of Appeals further indicated that Reardon represented an abandonment of the conclusion that the building exception could apply to immediately adjacent premises.
In Henkey v Grand Rapids, 185 Mich App 56, 57; 460 NW2d 271 (1990) (see n 3), the plaintiff slipped and fell on some snow and ice on a sidewalk immediately adjacent to the entryway of a public building. The Court of Appeals said it disagreed with Yarrick and believed that Reardon did not limit the public building exception to the actual physical structure of the building. The Court of Appeals held that the exception applied to areas immediately adjacent to a building.
In Hall v Detroit Bd of Ed, 186 Mich App 469, 471; 465 NW2d 12 (1990), the plaintiff slipped and fell on ice while walking from the school grounds to an immediately adjacent sidewalk and building. The Court of Appeals held that the building exception related to dangers actually presented by the building itself and did not apply where a plaintiff fell on property adjacent to a public school.
In Maurer, supra, the plaintiff fell while leaving a restroom at a park when she encountered a seven-inch drop between two steps. The Court of Appeals held that the steps had to be viewed as part “of” the building in light of the fact that the steps were intimately associated or connected with the building itself. The Court of Appeals stated that the steps were not merely adjacent to the restroom building, but were related to the permanent structure or physical integrity of the building. Id. at 229.
As is apparent, this Court and the Court of Appeals have made inconsistent statements regarding whether an injury resulting from a slip and fall in an area immediately adjacent to an entrance or exit of a public building comes within the building exception.
m. ANALYSIS
It requires a broad, rather than narrow, reading of the building exception to find that the building exception applies to anything but the building itself.
We reject the reasoning of Maurer. We first note that the majority of the Court of Appeals in Adams was of the view that it was bound to follow Maurer. This statement is inaccurate. As previously indicated, this Court reversed Maurer on other grounds before the Court of Appeals issued its decision in Adams (and Horace). Under the first-out rule now found at MCR 7.215(H), the Court of Appeals must follow “the rule of law” established by a prior published opinion issued on or after November 1, 1990. In Maurer, the Court of Appeals held that the plaintiffs claim was not barred by the open and obvious danger doctrine and that the claim came within the public building exception. This Court reversed, finding that the claim was barred by the open and obvious doctrine and specifically did not address the governmental immunity issue. 449 Mich 621. This Court also reinstated the trial court’s grant of summary disposition to the defendant. Id. at 625.
Under such circumstances, no rule of law remained from the Court of Appeals opinion. The Court of Appeals statements regarding the building exception became no more than dictum upon this Court’s reversal under the open and obvious danger doctrine. Whether the area where the fall occurred came within the building exception became irrelevant when this Court found the claim barred by the open and obvious danger doctrine. Hence, the Court of Appeals in the instant cases was not required to follow the analysis of the public building exception given in the Court of Appeals Maurer opinion.
We do, however, recognize that the Adams and Horace panels were free to find the analysis of the public building exception given in the Maurer opinion persuasive. The public building exception applies to a dangerous or defective condition “of a public building.” In Reardon this Court cited the definition for the word “of” from Black’s Law Dictionary (5th ed). 430 Mich 410-411. The essence of the Court of Appeals analysis of the building exception in Maurer is premised on the fact that the Black’s Law Dictionary definition of the word “of” included “[associated with or connected with.” From this the Court of Appeals reasoned that steps where the plaintiff had fallen had to be viewed as part of the building because they were intimately associated or connected with the building itself.
We find this reasoning incompatible with a narrow reading of the public building exception. First, this Court did not, by quoting the Black’s Law Dictionary definition of the word “of” in Reardon, intend to provide a means to reach a broad view of the public building exception (it is well to remember that Rear-don rejected a public building claim). The first example given in Black’s Law Dictionary for the word “of” is “he is of noble blood.” If this were the test for when something is “of” a building, it would require a very broad reading of the narrow building exception.
Further, our quoting the Black’s Law Dictionary definition of the word “of” did not do away with MCL 8.3a; MSA 2.212(1), which provides: “All words and phrases shall be construed and understood according to the common and approved usage of the language.” One does not need a legal dictionary to understand the meaning of a nonlegal term such as “of.” Thus, when considering a nonlegal word or phrase that is not defined within a statute, resort to a layman’s dictionary such as Webster’s is appropriate. This is because the common and approved usage of a nonlegal term is most likely to be found in a standard dictionary and not a legal dictionary. Review of Webster’s Collegiate Dictionary shows that the word “of” can have many different meanings, depending on the context. The most obvious definition applicable here is “used to indicate possession.” This is entirely consistent with this Court’s conclusion in Wade that the defect or condition must be “of the building itself.” 439 Mich 168.
We further indicate our agreement with the logic of the following statement from Stanton v Garfield Twp, 75 Mich App 537, 539; 255 NW2d 675 (1977). “We do not believe that in the usual commonly accepted sense of the term the ground adjacent to a public building is a public ‘building,’ statutorily speaking, and we so hold.”
IV. APPLICATION to cases
In Horace, plaintiff was between eighteen and twenty-eight feet from the south entrance doors to the Silverdome when she fell. Having determined that liability does not extend to walkways, we find that the trial court properly granted the city summary disposition. A danger of injury caused by the area in front of an entrance or exit is not a danger that is presented by a physical condition of the building itself. As previously explained, the Court of Appeals reliance on Maurer was misplaced.
In Adams, plaintiff fell when walking on a cement walkway near the entrance of a building at a rest area. The trial court granted summary disposition on the basis that the cement walk was not so much an entrance to a public building as it was a sidewalk that is in front of the restroom building, leading not only to the building, but also to a telephone, an outside map, a picnic area, and a dog run. The trial court’s analysis is entirely consistent with our opinion today. Adams’ fall was not the result of a dangerous or defective condition of the building itself. Thus, summary disposition was properly granted to the state. As in Horace, the Court of Appeals erred by relying on Maurer.
V. CONCLUSION
In sum, we hold that slip and fall injuries arising from a dangerous or defective condition existing in an area adjacent to an entrance or exit, but nevertheless still not a part of a public building, do not come within the public building exception to governmental immunity.
We therefore reverse the judgment of the Court of Appeals in each case and remand for entry of a judgment in favor of each defendant.
Mallett, C.J., and Brickley, Boyle, and Weaver, JJ., concurred with Taylor, J.
MCL 691.1406; MSA 3.996(106) provides in pertinent part:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.
The Court of Appeals failed to note that this Court had reversed Maurer sub nom Bertrand v Alan Ford, Inc, fourteen days earlier on a ground unrelated to the public building exception. 449 Mich 606; 537 NW2d 185 (1995). We reversed the Court of Appeals decision on the basis of the open and obvious danger doctrine.
Ross constituted a significant change in governmental immunity jurisprudence. Prior case law had given the term “governmental function” a narrow reading and had rejected a narrow reading of the public building exception. Wade, supra at 165. For example, in Tilford v Wayne Co General Hosp, 403 Mich 293; 269 NW2d 153 (1978), this Court held that a slip and fall on a patch of ice on the walk leading to the entrance to the hospital came within the public building exception. In Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978), this Court held that a child injured on a defective slide on a school playground came within the public building exception. Neither Tilford nor Pichette remains good law. Tilford is inconsistent with Wade in that the snow and ice on which the plaintiff fell was a transitory condition not within the public building exception. Pichette is inconsistent with Wade in that a slide is not a condition of the building itself. See Henkey v Grand Rapids, 185 Mich App 56, 57; 460 NW2d 271 (1990), rev’d 440 Mich 867 (1992), where the Court of Appeals opinion indicated the plaintiff slipped on some snow and ice on the sidewalk immediately adjacent to the entiyway of a public building. This Court peremptorily reversed the Court of Appeals stating “Plaintiff has not pled a cause of action in avoidance of governmental immunity” and then cited Wade. Our peremptory reversal could be understood as standing for the proposition that a fall on snow and ice is not within the exception because it is a transitory condition or that a fall adjacent to an entiyway, but still outside the building, is not within the exception because the fall was not a result of the building itself, or both of these propositions. See also Merritt v Dep’t of Social Services, 184 Mich App 522, 523; 459 NW2d 10 (1990) (the plaintiff slipped and fell on some ice in a parking lot; the Court of Appeals noted that the scope of the public building exception had been narrowed considerably since Tilford and held that the exception did not apply to a parking lot where entry and exit from the building was not directly possible from the parking lot [entry and exit were via a sidewalk]); and Eberhard v St Johns Public Schools, 189 Mich App 466, 467; 473 NW2d 745 (1991) (the plaintiff was injured on a playground when a basketball hoop fell; the Court of Appeals affirmed an order dismissing the plaintiff’s claim, stating it was convinced that the public building exception no longer applies to dangers presented on school property acjjacent to a public school).
The apparent incongruity between these two statements led the Court of Appeals in Yarrick v Village of Kent City, 180 Mich App 410, 414; 447 NW2d 803 (1989), vacated and remanded for reconsideration regarding a different issue 435 Mich 866 (1990), (On Remand) 189 Mich App 627; 473 NW2d 774 (1991), to state:
Although the Reardon Court’s statement to the effect that Jolly clarified that the duty to maintain safe public places related to buildings and the immediately adjacent premises could be read to indicate that the building exception continues to apply to the immediately adjacent premises, we believe that Reardon represents an abandonment of that doctrine. Specifically, the statement that the Court in deciding Reardon clarified “that the duty imposed by the public building exception relates to dangers actually presented by the building itself” represents a conclusion that the building exception applies only to the building itself and not to the adjacent areas.
See, e.g., Abrams v Schoolcraft Community College, 178 Mich App 668, 671; 444 NW2d 533 (1989) (the plaintiff slipped and fell in a parking lot; the Court of Appeals affirmed an order granting summary disposition to the defendant stating, “it does not appear that the parking lot was ‘immediately adjacent’ to the school building so as to possibly fall within the public building exception”), Richardson v Warren Consolidated School Dist, 197 Mich App 697, 700-701; 496 NW2d 380 (1992) (the plaintiff was injured when her bicycle struck a concrete island at the edge of a circular drive in front of a school; the Court of Appeals held that the plaintiff could not assert the building exception, noting that it was not possible to enter the building directly from the driveway itself, a sidewalk had to be utilized), and Wing v Detroit, 178 Mich App 628; 444 NW2d 539 (1989) (the plaintiff slipped and fell on the main walkway at the Detroit Zoo near the Penguin House; the Court of Appeals first noted that the scope of the public building exception had been narrowed by Ross and Reardon and went on to find the plaintiff’s claim did not come within the public building exception because the place the plaintiff fell was not part of the entrance to the Penguin House and the zoo’s main walkway could not be considered part of the surrounding grounds or premises of the Penguin House).
As we explained in Reardon at 412, the Legislature put its imprimatur on this Court’s giving the exceptions to governmental immunity a narrow reading when it enacted 1986 PA 175.
We also note that the Court of Appeals description of the area where the plaintiff fell in Maurer was not entirely accurate. The Court of Appeals characterized the area where the plaintiff fell as a “stairway leading into the building.” Id. at 229. However, as explained in our opinion in Maurer, the area where the plaintiff fell was neither merely adjacent nor related to the physical integrity of the building. Rather, the plaintiff fell, not on a walkway, but on a wooden level built into the side of a slope approaching a park restroom that was at least four feet from the door. Id. at 619.
The preface to the Revised Fourth Edition of Black’s Law Dictionary specifically states that it provides meanings of legal terms and phrases as weE as to the special legal meanings of standard English words whose meanings frequently cannot be found in the ordinary English language dictionaries.
The dissent suggests that our opinion may cut off liability for injuries resulting from the collapse of an outside overhang on a public budding, stairs leading up to or down from an elevated building entrance, an underground tunnel leading into a building, an attached external ramp or railing. While it is not necessary for us to resolve these hypothetical situations in the case at bar, we note that an outside overhang is a danger presented by a physical condition of a building itself and that some stairs also may fit the test we adopt today if they are truly part of the building itself.
We recognize that this case was reversed and remanded for reconsideration in light of Tilford, supra. 404 Mich 802 (1978). | [
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Brickley, J.
I
We are called upon to decide several issues in the two cases before us. First, we must determine whether the “net worth” exclusion of the Property and Casualty Guaranty Association Act, MCL 500.7901 et seq.) MSA 24.17901 et seq., applies to insureds or to third-party claimants. Then we must decide whether the state is a “person” within the meaning of the act. Third, we must determine whether the net-worth exclusion violates the Equal Protection Clauses of the federal and Michigan Constitutions. Finally, we must decide whether the net-worth exclusion applies to public and governmental entities.
We conclude that the net-worth exclusion applies to insureds and that the state is a person within the meaning of the act. We also hold that the road commission may not assert an equal protection claim. Finally, we find that the net-worth exclusion applies to both public and governmental entities. Thus, we affirm both decisions of the Court of Appeals.
n
OAKLAND CO RD COMM’RS v MPCGA
Between 1981 and 1985, the Board of County Road Commissioners for the county of Oakland maintained general liability insurance through Midland Insurance Company. During that period, personal injury claims were made against the road commission, which fell under the coverage provisions of that insurance. In 1986, Midland was deemed insolvent and liquidated. The road commission paid the third-party claims and sought indemnification from the Michigan Property and Casualty Guaranty Association (mpcga), a statutorily created association of property and casualty insurers licensed to do business in Michigan. See MCL 500.7901 et seq.; MSA 24.17901 et seq. The MPCGA has a duty to pay certain obligations of insolvent insurers that come within the act’s definition of covered claims. The mpcga refused to indemnify the road commission because its net worth exceeded the statutory maximum and, therefore, its claims did not constitute covered claims under the act. See MCL 500.7925(3); MSA 24.17925(3).
To understand the facts as they developed below, an examination of the pertinent statutory language is necessary. Section 7925(1) provides, in part, the following definition of covered claims:
“Covered, claims” means obligations of an insolvent insurer which meet all of the following requirements:
(a) Arise out of the insurance policy contracts of the insolvent insurer issued to residents of this state or are payable to residents of this state on behalf of insureds of the insolvent insurer. [Emphasis added.]
Section 7925 further defines covered claims by setting forth five circumstances in which a claim is excluded from the definition of a covered claim. The relevant exclusion provides:
Covered claims shall not include obligations to an insurer, insurance pool, underwriting association, or to a person who has a net worth greater than 1/10 of 1% of the aggregate premiums written by member insurers in this state in the preceding calendar year. [MCL 500.7925(3); MSA 24.17925(3) (emphasis added).]
Finally, “person” is defined under the Insurance Code to include
an individual, insurer, company, association, organization, Lloyds, society, reciprocal or inter-insurance exchange, partnership, syndicate, business trust, corporation, and any other legal entity. [MCL 500.114; MSA 24.1114.]
In 1985, the calendar year preceding Midland’s insolvency, the aggregate premiums written by member insurers totaled $5,820,973,000, yielding the applicable net worth limit of $5,820,973 as set forth in the affidavit of James Lunsted, controller for the MPCGA. In 1985, the road commission’s net worth was $18,446,051. In determining the road commission’s net worth, Nola Yew, CPA, and semiretired partner in the management consulting service department of an accounting firm, relied on the road commission’s financial report for the fiscal year that ended on September 30, 1985, which was prepared by the road commission’s own certified public accountants in accordance with generally accepted government accounting standards. She also provided a definition of “net worth” from Kohler’s Dictionary of Accountants, explaining that the net worth of any entity is the recorded assets minus the recorded liabilities. Lastly, she stated that all entities have a net worth.
In support of its opposition to the mpcga’s motion for summary disposition, the road commission submitted an amicus curiae brief of the Michigan Municipal League, the work sheet generated by the mpcga in determining whether the road commission’s claim was a covered claim, and the road commission’s balance account sheet. All were submitted in support of its position that a genuine issue of material fact existed regarding whether the road commission had a cognizable net worth.
The trial court, in its opinion and order granting mpcga’s motion for summary disposition pursuant to MCR 2.116(C)(8), (10), held: The net-worth exclusion did not violate equal protection; the obligations of an insolvent insurer are obligations to an insured, not the claimant; the net-worth exclusion applied to obligations to a person and the road commission fell within the broad definition of person, which includes “any other legal entity”; the road commission had a net worth evidenced by its own financial statements and the affidavits of Nola Yew; and the road commission provided no authority to dispute this. The Court of Appeals affirmed the trial court’s decision in a per curiam opinion. 217 Mich App 154; 550 NW2d 856 (1996).
ATTORNEY GENERAL v MPCGA
The Michigan Department of .Natural Resources is the holder and obligee of two surety bonds by which the principals, two oil and gas well owners/operators, and the surety, Oil & Gas Insurance Company, are bound. These bonds were required to be purchased pursuant to a provision of the supervisor of wells act. See MCL 324.61506(p); MSA 13A.61506(p). The wells were then abandoned by the owners without having been properly plugged and without the sites having been cleaned up in accordance with the applicable statutory provisions and administrative regulations. The Supervisor of Wells, pursuant to statutory authority, took proper action to plug the wells and clean up the well sites. The costs of that action are to be borne by the state of Michigan, subject to its statutory reim bursement rights. See MCL 342.61501 et seq.; MSA 13A.61501 et seq. The owners or operators of the wells and the surety on the bonds may be jointly and severally liable for all expenses incurred in the cleanup. MCL 324.61519; MSA 13A.61519.
The surety was determined insolvent and liquidated in 1990. The dnr filed its proof of claims with the mpcga. The mpcga rejected the claims on the basis of the net-worth exclusion. The dnr filed this action, seeking a declaratory judgment that the net-worth exclusion may not be applied to the state or the DNR. The DNR filed a motion for summary disposition, arguing that it was not a person within the meaning of the net-worth exclusion. The mpcga also filed a motion for summary disposition, arguing that the term net worth may be properly applied to the state and that the state’s net worth exceeded the statutory limitation. The MPCGA’s controller calculated the net-worth limitation in 1989 at $7,895,198 on the basis of the aggregate premiums written by member insurers in 1989, totaling $7,895,198,000.
Nola Yew, a certified public accountant retained by the mpcga, calculated the state’s net worth for 1989 at $886,688,000. In determining the state’s net worth, she relied on the Michigan comprehensive annua! financial report for the fiscal year ending on September 30, 1989, which was prepared by the Department of Management and Budget in accordance with generally accepted government accounting standards. The dnr “vigorously contested” her calculations with the affidavit of Susan Work Martin, Ph.D., CPA, who stated: The concept of net worth was foreign to the field of governmental accounting, net worth is not an appropriate measurement for a government entity, and net worth is not a defined term in the generally accepted accounting principles for government entities.
After examining the affidavit of Ms. Martin, Ms. Yew, providing the Kohler’s definition of net worth, stated that all entities have a net worth and that the common and acceptable meaning of net worth is what matters, i.e., recorded assets minus recorded liabilities. Instead of submitting a calculation regarding the state’s net worth, after Ms. Yew submitted her second affidavit, Ms. Martin simply reiterated her position that it was inappropriate to apply the term net worth to the state.
The trial court, in its partial opinion from the bench, held that the state was indeed a person within the meaning of the act. Moreover, the authority submitted by the dnr to the contrary was inapplicable because it dealt with the conflicts of regulatory authority. The trial court also found, in its final opinion and order granting summary disposition for the MPCGA, that, although Ms. Martin had pointed out two “flaw[s]” in Ms. Yew’s computation, she provided no figure that she felt accurately reflected the state’s net worth in 1989. The Court of Appeals affirmed the decision of the trial court on both issues. 218 Mich App 342; 553 NW2d 700 (1996).
m
The first issue we are called upon to decide is to which party does the net-worth exclusion apply, the insured or the third-party claimant. To decide this issue, we must mind basic rales of statutory construction. In giving effect to the intent of the Legislature, where the language of the statute is plain and unambiguous, “we must honor the legislative intent as clearly indicated in that language.” Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 538; 565 NW2d 828 (1997). Moreover, we will read the language according to its ordinary and generally accepted meaning. Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997). We conclude that, according to the plain language of the act, the net-worth exclusion applies to the insured.
However, the road commission argues that the Court of Appeals and the MPCGA applied the net-worth exclusion to the wrong entity, that is, it applies only to third-party claimants and not to insureds. The road commission asserts that “covered claims” are defined as obligations “payable to residents of this state on behalf of insureds of the insolvent insurer.” See § 7925(1). Thus, asserts the road commission, the obligation runs to the claimant, not the insured; the claim is paid “on behalf of” the insured, not “to” the insured. No obligation is owed to the road commission; therefore, the net-worth exclusion cannot apply.
Not only does the road commission’s construction ignore pertinent statutory language, it turns principles of insurance contract law and basic logic on their respective heads. Where the language of a statute is clear, we will enforce the statute as written because the Legislature must have intended the meaning it plainly expressed. Rowell v Security Steel Processing Co, 445 Mich 347, 354; 518 NW2d 409 (1994).
The Legislature has defined “covered claims,” in part, as “obligations of an insolvent insurer.” The net-worth exclusion provides, in part, that “[c]overed claims shall not include obligations ... to a person who has a net worth” in excess of the statutory limit. Section 7925(3) (emphasis added). Thus, the Legislature has plainly expressed that covered claims do not include obligations of an insolvent insurer to a person whose net worth exceeds the statutory limitation.
What, then, is an obligation of the insurer? Basic principles of insurance law provide that an insurance policy is a contract and that the insurer’s obligations under that contract include the duty to indemnify and the duty to defend. Midland’s obligations to defend and to indemnify were to its insured, the road commission. The road commission confuses “obligation to” with “payable to.” Under the insurance policy, Midland’s contractual obligations ran to its insured, the road commission. That Midland might pay third-parties, directly or indirectly, is irrelevant. We note that the road commission has not argued that, under the contractual language of the insurance policy, Midland owed any obligations to any third parties under any circumstances. Application of the act cannot change the nature of the contractual insurance relationship or insert provisions or obligations into the contract not before in existence.
Finally, if we were to accept the road commission’s interpretation, the result would not only make little sense, but would defeat the act’s very purpose. The act is designed to protect persons from potentially catastrophic loss who have a right to rely on the existence of an insurance policy, the insureds and persons with claims against the insured. Metry, Metry, Sanom & Ashare v MPCGA, 403 Mich 117, 121; 267 NW2d 695 (1978).
To illustrate how illogical application of the net-worth exclusion is to third parties, the mpcga offers the following:
If a third-party claimant has a net worth that is less than the statutory cut-off amount, mpcga would indemnify the insured, regardless of how wealthy the insured is. If, on the other hand, the claimant’s “net worth” exceeds the statutory cut-off, mpcga would not indemnify the insured, regardless of how poor the insured was. Thus, according to the Road Commission’s approach, the determination of whether or not to indemnify the insured is unrelated to the insured’s financial ability or inability to pay the claim. The impact of that framework does not stop there. Rather, once mpcga has refused to indemnify a poor insured who is faced with the claim of a wealthy third-party claimant, there is nothing in the mpcga Act that would preclude the wealthy third-party claimant from pursuing its claim directly against the poor insured. And, the poor insured could end up paying the claim of the wealthy third-party claimant. [Emphasis in original.]
The mpcga’s analysis is based on the application of the net-worth exclusion to third parties only. The Court of Appeals implied that the net-worth exclusion should be applied to both the insured and to third-party claimants. However, the same problem articulated by the MPCGA arises — an insured whose net worth does not exceed the statutory limit would not be protected under the act if the third-party claimant’s net worth exceeds the statutory limit. The “poor” insured still has to pay the “wealthy” claimant directly. The bottom line issue is not whether the third-party gets paid, but who pays, the insured or the MPCGA? The answer is dependent on the ability of the insured to absorb the loss, as determined by application of the net-worth exclusion.
The general purpose of the act is to protect insureds and third-party claimants who have a right to rely on the existence of insurance. However, the specific purpose of the net-worth exclusion is to exclude insureds from the protection of the act who are able to absorb the loss. A third-party claimant does not go unprotected when the insured is deemed able to absorb the loss because the third-party claimant recovers directly from the insured. Moreover, if the purpose of the net-worth exclusion is to allocate the loss to the party best able to absorb the loss, it should not be applied to the third-party claimant because the third-party claimant is not one of the parties who might have to absorb the loss. As discussed above, the third-party claimant is not precluded from recovering against the insured directly. The allocation occurs between the MPCGA and the insured. Application of the net-worth exclusion to third-party claimants would defeat the specific purpose of the net-worth exclusion. Accordingly, the road commission’s interpretation would contravene the policy underlying the act and the purpose of the net-worth exclusion.
By its terms, the net-worth exclusion applies only to insureds. This conclusion is based on the plain language of the statute, the contractual obligations of the insolvent insurer as written in the insurance policy, and a common-sense application of the statutory language, bearing in mind the policy underlying the act and the purpose of this specific provision.
rv
Now we must determine whether the state is a person within the meaning of the act. We again touch on our rules of statutory construction. Where a statute does not define a term, we will construe it in accordance with its ordinary and generally accepted meaning. Shallal, supra at 611; Western Michigan, supra at 539. A court may consult dictionary definitions when terms are not expressly defined by a statute. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). Again, the statute provides that the definition of person under the Insurance Code includes
an individual, insurer, company, association, organization, Lloyds, society, reciprocal or inter-insurance exchange, partnership, syndicate, business trust, corporation, and any other legal entity. [MCL 500.114; MSA 24.1114 (emphasis added).]
However, the statute does not define the term “legal entity.” Black’s Law Dictionary (6th ed) defines legal entity as
Legal existence. An entity, other than a natural person, who has sufficient existence in legal contemplation that it can function legally, be sued or sue and make decisions through agents as in the case of corporations.
Surely the state has such a legal existence. The state, which undoubtedly functions in the legal capacity described in the definition of legal entity, comes within the ordinary and generally accepted meaning of legal entity. Thus, the state falls within the definition of person provided by the Legislature in the act.
However, the state argues that unless it is clear that the Legislature intends a law to apply to the state, it does not. Mead v Public Service Comm, 303 Mich 168; 5 NW2d 740 (1942); Detroit v O’Connor, 302 Mich 531; 5 NW2d 453 (1942); Miller v Manistee Co Bd of Rd Comm’rs, 297 Mich 487; 298 NW 105 (1941), overruled in part by Mead, supra; Marquette Co v Northern Michigan Univ Bd of Control, 111 Mich App 521; 314 NW2d 678 (1981). The MPCGA responds that these decisions deal with legislation that imposed burdens on the government, not legislation that conferred a benefit on the government, as in this case. Moreover, the mpcga asserts that, in each of the above cases, application of the statutes either would have resulted in an unconstitutional infringement on sovereign immunity or would have conflicted with rights conferred on the state or a specific state agency by other legislation dealing with the same subject matter.
An examination of these decisions reveals that the mpcga is correct. In O’Connor, the issue was whether provisions of the judicature act for setting aside a default judgment in certain equitable actions, including qualified mortgage foreclosure proceedings, applied to tax foreclosure proceedings brought in accordance with the city of Detroit’s charter provisions. O’Connor, supra at 535. We held that the city of Detroit, an agent of the state, did not come within the statute’s purview unless the Legislature clearly so indicated. Id. at 536.
In O’Connor, we relied on Miller, which included an extensive discussion of this rule and its origins. This doctrine applies to statutes where prerogatives, rights, titles, or interests of the state would be diminished or to statutes that would impose liability on the state. Where a statute divests a right, title, or interest of the state, the state must be expressly included in order to be subject to the statute. However, where an act is for the public good, the state shall be bound even though not named expressly therein. Id. at 490.
The act at issue here does not divest any right or interest of the state. Indeed, it grants a benefit in some circumstances and does not grant this benefit in others, such as when the net-worth exclusion is applicable. However, this is not the same as imposing liability on the state. The state’s liability arises under the supervisor of wells act. Absent the MPCGA act, the state, as an insured, would always be forced to absorb this type of loss. For the Legislature to outline the circumstances under which an insured may receive protection from the act is entirely different from imposing liability on the state.
Next, in Mead, we overruled Miller’s holding that the Legislature intended, without expressly including the state or its agencies, to deprive the state of immunity from liability incident to the negligent use of automobiles. Id. at 172. We held:
The doctrine of sovereign immunity has long been firmly established in the common law of this State, and it may not be held to have been waived or abrogated except that result has been accomplished by an express statutory enactment or by necessary inference from a statute. [Id. at 173; see also McNair v State Hwy Dep’t, 305 Mich 181, 187; 9 NW2d 52 (1943), and Greenfield Construction Co v Dep’t of State Hwys, 402 Mich 172, 193; 261 NW2d 718 (1978).]
Sovereign immunity is not implicated in this case. As we stated above, this act is not imposing liability on the state.
Finally, in Dearden v Detroit, 403 Mich 257, 265; 269 NW2d 139 (1978), we held that where the Legislature granted exclusive jurisdiction over penal institutions to the Department of Corrections, an agency of the state, it was not subject to a local zoning ordinance. This issue was framed in terms of whether a governmental unit was immune from a local zoning ordinance. Id. at 264. We have no conflict of regulatory authority in this case. The act is not interfering with any exclusive grant of authority to the state or one of its agencies. Thus, no reason exists to exclude the state from the act’s definition of person, into which it clearly falls.
v
Next, the road commission argues that the net-worth exclusion violates the Equal Protection Clauses of the federal and state constitutions. The Court of Appeals, in its amended opinion, held that the road commission,
as a governmental entity created by the Legislature, “has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.” [217 Mich App 162, quoting Berrien Co v Michigan, 136 Mich App 772, 778; 357 NW2d 764 (1984) and Williams v Mayor and City Council of Baltimore, 289 US 36, 40; 53 S Ct 431; 77 L Ed 1015 (1933).]
Although not mentioned by the Court of Appeals in this case, the line of cases on which the lower courts relied found
no reason why a local governmental unit’s assertion of equal protection and due process rights under our state constitution should lead to a different result. [DeWitt Twp v Clinton Co, 113 Mich App 709, 717; 319 NW2d 2 (1982); Berrien Co, supra at 778.]
We agree. In Doe v Dep’t of Social Services, 439 Mich 650, 672; 487 NW2d 166 (1992), we stated:
[W]e do not find in the wording used, nor in its arrangement, any evidence of purpose on the part of the drafters to provide broader protection in the Equal Protection Clause of the state constitution than is found in its federal counterpart. Rather, the pattern suggests a deliberate effort to duplicate the protection seemed by the federal clause.
We also agree with the Court of Appeals that, as a creation of the Legislature, the road commission cannot assert an equal protection challenge against its creator, the state. The county road law provides for the creation of a county road commission and defines the powers and duties of the commission. See MCL 224.1 et seq.) MSA 9.101 et seq. A county road commission “draws its legal life from the county road law and, as a creature of that legislation, the commission has no power save that which is legislatively conferred.” Arrowhead Development Co v Livingston Co Rd Comm, 413 Mich 505, 512; 322 NW2d 702 (1982).
As noted by the Court of Appeals, the United States Supreme Court has held that a
municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator. [Williams, supra at 40.]
A board of county road commissioners is not a municipal corporation; however, it is a “body corporate” that “shall act as an administrative board only” and whose function “shall be limited to the formation of policy and the performance of official duties imposed by law . . . .” MCL 224.9(1), (2); MSA 9.109(1), (2). Like a municipal corporation, the road commission’s existence is entirely dependent on the legislation that created it, and the Legislature. that may also destroy it.
The present situation is analogous to our decision in Lansing School Dist v State Bd of Ed, 367 Mich 591, 599; 116 NW2d 866 (1962), where we rejected an equal protection challenge because, in order to sustain the challenge, it was necessary for the school district to have an “absolute right to vote on the annexation question.” Not being entitled to such a right, that it was given to one district and not another did not violate equal protection. Id. at 599-600. Moreover, the school district was an agency of the state government and therefore was not in a position to “attempt to attack its parent.” Id. at 600. Likewise, because the road commission’s claim is not based on any absolute right and because it is a creature of the Legislature, it, too, is in no position to “attack its parent.”
Finally, we find persuasive the observation that no equal protection violation existed where school districts were not seeking to enforce rights conferred upon them, but merely sought to “overturn the legislative scheme of financing and to thus compel the Legislature to enact a different system that would conform to plaintiffs’ theories of equality.” East Jackson Public Schools v Michigan, 133 Mich App 132, 138; 348 NW2d 303 (1984). That is precisely what the road commission seeks to do here, that is, to overturn the legislative scheme regarding covered claim exclusions on the basis of its theory that public and private entities are not similarly situated. This is precisely what it may not seek to do. Thus, we hold that the road commission, a public entity whose existence is solely dependent upon the legislation that created it, and whose claim is not based on any absolute right, cannot assert an equal protection claim.
VI
Finally, we must decide whether the net-worth exclusion applies to public and governmental entities and, if it does, whether summary disposition was properly granted, pursuant to MCR 2.116(C)(8), (10), for the mpcga in both cases. Issues of statutory interpretation are questions of law and are therefore reviewed de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991); Watson v Bureau of State Lottery, 224 Mich App 639, 644; 569 NW2d 878 (1997). Both panels of the Court of Appeals held that the plaintiffs failed to meet their evidentiary burden under which they must set forth specific facts to show the existence of a genuine issue of material fact for trial pursuant to MCR 2.116(G)(4). 218 Mich App 348; 217 Mich App 161; Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). Because no genuine issue of material fact existed regarding the net worth of either the road commission or the state, and because the mpcga was therefore entitled to judgment as a matter of law, summary disposition was properly granted pursuant to MCR 2.116(C)(10). 218 Mich App 348; 217 Mich App 161; Bourne v Farmers Ins Exchange, 449 Mich 193, 197; 534 NW2d 491 (1995).
We concluded above that the net-worth exclusion applies to the insured and that the state is a person within the meaning of the statute. Both the state and the road commission are insureds and persons and, thus, are subject to the net-worth exclusion. However, both the state and the road commission argue that the term net worth is not applicable to public or governmental entities, is not used in governmental accounting, and it is not “appropriate” to apply such a term to public or governmental entities.
Our analysis of this issue begins with an examination of the relevant statutory language:
[CJovered claims shall not include obligations to an insurer, insurance pool, underwriting association, or to a person who has a net worth greater than 1/10 of 1% of the aggregate premiums written by member insurers in this state in the preceding calendar year. [MCL 500.7925(3); MSA 24.17925(3) (emphasis added).]
Utilizing the rules of statutory interpretation discussed above, we observe that “net worth” is not defined by the statute. In ascertaining its ordinary and generally accepted meaning, we examine Black’s Law Dictionaiy (6th ed), p 1041, which defines net worth as, inter alia, the “amount by which assets exceed liabilities” and the “ [remainder after deduction of liabilities from assets.” The mpcga’s expert also offered a definition of net worth from Kohler’s Dictionary of Accountants, explaining that the net worth of any entity is the recorded assets minus the recorded liabilities.
Having determined that the net-worth exclusion must be applied to the road commission and the state as persons and insureds, the issue then becomes whether it is possible to apply the term net worth to these entities. Clearly, this term has an ordinary and generally accepted meaning that can be applied to any legal entity, public, private, governmental, or otherwise. The road commission and the state are essentially arguing that the Legislature made an unwise decision by providing for the application of this term to public and governmental entities. Regard less of this, we must give due deference to acts of the Legislature, and we will not inquire into the wisdom of its legislation. Council of Organizations & Others for Education About Parochiaid v Governor, 455 Mich 557, 564, n 7; 566 NW2d 208 (1997); Nummer v Treasury Dep’t, 448 Mich 534, 553, n 22; 533 NW2d 250 (1995). Moreover, arguments that a statute is “unwise or results in bad policy should be addressed to the Legislature.” People v Kirby, 440 Mich 485, 493-494; 487 NW2d 404 (1992).
In both cases, the mpcga offered its calculations regarding the state’s and the road commission’s net worth on the basis of their respective financial statements. In support of its opposition to the mpcga’s motion for summary disposition, the road commission submitted an amicus curiae brief of the Michigan Municipal League, the work sheet generated by the MPCGA in determining whether the road commission’s claim was a covered claim, and the road commission’s balance account sheet. The state submitted the affidavit of Susan Work Martin, Ph.D., CPA, who stated: The concept of net worth was foreign to the field of governmental accounting; it is not an appropriate measurement for a government entity; and it is not a defined term in the generally accepted accounting principles for government entities.
However, it is not seriously disputed that the term net worth, as it is generally understood, can be applied to public and governmental entities. Whether it should be so applied is not for us to decide. On the basis of an examination of the materials submitted opposing the mpcga’s motions for summary disposition, neither the road commission nor the state submitted any calculations to refute those made by the mpcga or any evidence to dispute the accuracy of those calculations. Thus, no genuine issue of material fact exists regarding the issue of the road commission’s and the state’s net worth. We agree with the panels of the Court of Appeals that summary disposition was properly granted for the MPCGA in both cases.
vn
In conclusion, we hold that the net-worth exclusion is applicable to the insured and that the state is a person within the meaning of the mpcga act. We further hold that the road commission may not assert an equal protection claim against its creator, the state. Finally, we conclude that the net-worth exclusion is applicable to both public and governmental entities. Thus, we affirm both decisions of the Court of Appeals.
Mallett, C.J., and Cavanagh, Boyle, Weaver, Kelly, and Taylor, JJ., concurred with Brickley, J.
US Const, Am XIV, § 1; Const 1963, art 1, § 2.
This section outlines additional requirements for “covered claims” which are not at issue here. See subsections (b)-(f).
The trial court noted that, even if it took into account these “flaw[s],” the state’s net worth was still far in excess of the statutory limit.
This is only at issue in Oakland Co Rd Comm’rs v MPCGA.
For example, see Fire Ins Exchange v Diehl, 450 Mich 678, 683; 545 NW2d 602 (1996) (an insurance policy is a contract between the parties); Smith v Physicians Health Plan, Inc, 444 Mich 743, 759; 514 NW2d 150 (1994) (insurance policies will be treated just like other contracts); Rohlman v Hawkeye-Security Ins Co, 442 Mich 520, 525; 502 NW2d 310 (1993) (the insurance policy, a contract between the insurer and the insured, controls the interpretation of its own provisions providing benefits not required by statute).
Generally, an insurer has a duty to defend its insured and a duty to indemnify its insured; however, we must emphasize that such duties arise from the policy language. See Gardner v Ins Co of North America, 82 Mich App 128, 130; 266 NW2d 474 (1978); Schiebout v Citizens Ins Co, 140 Mich App 804, 813; 366 NW2d 45 (1985), aff’d 427 Mich 602; 398 NW2d 411 (1986); Meridian Mut Ins Co v Hunt, 168 Mich App 672, 676-677; 425 NW2d 111 (1988).
The Court of Appeals held that “because plaintiff’s claims arise from its liability to third parties, the net-worth exclusion . . . must be applied to plaintiff and to plaintiff’s third-party claimants.” 217 Mich App 160. We disagree. The road commission’s claims under the act arise out of its contract for insurance with Midland that provided indemnification for these third-party claims. Only because of the existence of the contract of insurance does the road commission have a claim under the act.
This is unlike the situation presented in Rohlman v Hawkeye-Security Ins Co, n 5 supra at 525, n 3, in which we noted that the “policy and the statutes relating thereto must be read and construed together as though the statutes were a part of the contract, for it is to be presumed that the parties contracted with the intention of executing a policy satisfying the statutory requirements, and intended to make the contract to carry out its purpose.”
The Court of Appeals held “the net-worth exclusion applies to the insured and to the insured’s third-party claimants who reside in Michigan.” 217 Mich App 159. It then stated that it “express[ed] no opinion regarding the circumstance where an insured’s net worth does not exceed the statutory limit, but a third-party claimant’s does.” Id. at 160, n 2.
See Borman’s, Inc v MPCGA, 952 F2d 160, 162 (CA 6, 1991), and 218 Mich App 346.
This issue applies only in Attorney General v MPCGA. The trial court in Oakland Co Rd Comm’rs did find, in its opinion and order, that the road commission fell within the broad definition of person, which includes “any other legal entity”; however, this specific issue was not raised on appeal.
The same reasoning was applied by the Court of Appeals in Marquette Co, in which it held that the Legislature did not intend the State Construction Code Act to apply to an agency of the state where the Legislature provided state universities with exclusive jurisdiction over construction of campus buildings. Id. at 526.
13 The basis for this doctrine is that public and municipal corporations are merely “parts of the machinery employed in carrying on the affairs of state” and may be changed, modified, or repealed at the will of the Legis lature. Worchester v Worchester C S R Co, 196 US 539, 550; 25 S Ct 327; 49 L Ed 591 (1905).
The Legislature is granted the authority to create the county road law and the road commission pursuant to Const 1963, art 7, § 16.
The Attorney General has expressed the opinion that a county road commission is a public entity, but not a form of local government or a political subdivision of the state. See OAG, 1977-1978, No 5375, p 663 (October 18, 1978).
The road commission is also a person within the meaning of the statute; however, we simply rely on the trial court’s determination of that issue, since it was not raised on appeal.
The issue whether the insured or the third-party claimant is subject to the net-worth exclusion is not presented in Attorney General v MPCGA. The obligee (dnr) is the insured, not a third-party claimant. In the surety situation, the principal (oil well owners/operators) owes the primary obligation to the obligee, and the surety (Midland) owes a secondary obligation to the obligee. Great American Ins Co v North Austin Municipal Utility, 908 SW2d 415 (Tex, 1995). A special relationship exists between a commercial surety and an obligee that is nearly identical to that involving an insurer and an insured. When an obligee requests that a principal obtain a commercial surety bond to guarantee the principal’s performance, the obligee is essentially insuring itself from the potential losses that would result in the event that the principal defaults on its original obligation. Transamerica Premier Ins Co v Brighton School Dist, 940 P2d 348, 352 (Colo, 1997). Thus, the obligation owed that is discussed in Oakland Co Rd Comm’rs is the secondary obligation owed by the surety to the obligee. | [
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Kelly, J.
This Court granted leave to appeal in these consolidated cases to determine whether the defendants’ application of certain provisions of 1980 PA 328 violated the Headlee Amendment. Const 1963, art 9, § 29. Act 328 amended the child care fund provisions of the Social Welfare Act. MCL 400.117a and 400.117c; MSA 16.490(27a) and 16.490(27c) (the child care fund amendment).
Plaintiffs are twenty-five Michigan counties and the Chairperson of the Oakland County Board of Commissioners. Defendants are the State of Michigan and its Departments of Management and Budget and Social Services. Certain of the plaintiffs commenced separate actions against defendants, complaining that the child care fund amendment reduced the ratio of state financing of county foster care services in violation of a provision of the Headlee Amendment.
The Court of Claims granted defendants’ motion for summary disposition holding, that the child care fund amendment does not violate the Headlee Amendment. It reasoned that Headlee applies only to services or activities that state law required of local governments when Headlee took effect. It found that state law did not require plaintiffs to provide foster care services at that time.
The Court of Appeals affirmed the Court of Claims decision, although it concluded that the state did require plaintiffs to provide and fund foster care services when Headlee took effect. It concluded that the Headlee Amendment was not violated, as it prohibits a reduction only in the ratio at which the state funds the necessary costs of foster care services. It found that the expenditures for which plaintiffs sought reimbursement were prima facie not “necessary.” It also concluded that plaintiffs were not entitled to monetary relief because their claims were barred by the applicable statute of limitation.
We agree with the Court of Appeals that plaintiffs were required by state law to provide and fund county foster care services when Headlee took effect. We do not agree that the costs for which plaintiffs seek reimbursement are not prima facie “necessary.” Nor do we accept the statutory period of limitation applied by the Court of Appeals. Therefore, we would reverse the decision of the Court of Appeals and would remand these actions to the Court of Claims for further proceedings consistent with this opinion.
I
Plaintiffs have alleged that the child care fund amendment improperly reduced the state financed proportion of the necessary costs of county foster care services in violation of the Headlee Amendment. As application of the Headlee Amendment to the child care fund amendment is a question of law, the standard of review for this Court is de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
The relevant portion of the Headlee Amendment provides:
The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of local Government by state law. [Const 1963, art 9, § 29.]
The provision applies only to services or activities of local government that the state mandated on the effective date of Headlee, not to those that were optional. Livingston Co v Dep’t of Management & Budget, 430 Mich 635; 425 NW2d 65 (1988). Thus, § 29 prevents the state from reducing its share of the funding of programs mandated by prior law. Id., citing Schmidt v Dep’t of Ed, 441 Mich 236, 252; 490 NW2d 584 (1992).
In an attempt to ascertain the intent of the voters when they enacted § 29, this Court has said:
Having placed a limit on state spending, it was necessary to keep the state from creating loopholes either by shifting more programs to units of local government without the funds to carry them out, or by reducing the state’s proportion of spending for “required” programs in effect at the time the Headlee Amendment was ratified. [Livingston Co at 644.]
Under § 29, the state may not burden local units by improper revenue shifting.
To implement § 29 of the Headlee Amendment, the Legislature enacted 1979 PA 101, now codified as §§ 1 through 14 of the state disbursements to local government units act. MCL 21.231 et seq.) MSA 5.3194(601) et seq. The purpose of Act 101 was to delineate the “powers and duties of certain state agencies and public officers” responsible for disbursement of state funds to “local units of government for costs required to administer or implement certain activities or services required of local units of government by the state . . . .” Preamble to the act. The purpose of the implementing act is to ensure state compliance with reimbursement procedures.
n
Before enactment of the child care fund amendment, the relevant section of the Social Welfare Act provided:
The office shall provide for the distribution of money appropriated by the legislature to counties for the foster care of children. The amount distributed to each county shall equal 50% of the annual expenditures from the child care fond of the county established in section 117c, except that expenditures made pursuant to section 117c(3) shall not be included. A distribution shall not be made to a county which does not comply with the requirements of this act. [MCL 400.117a(4); MSA 16.490(27a)(4).]
Since the effective date of the amendment, the section has read:
The office shall provide for the distribution of money appropriated by the legislature to counties for the foster care of children. The amount distributed to each county shall equal 50% of the annual expenditures from the child care fund of the county established in section 117c, except that neither expenditures made pursuant to section 117c(3) nor expenditures that exceed the amount of a budget approved under section 117c shall be included. A distribution shall not be made to a county which does not comply with the requirements of this act. [MCL 400.117a(4); MSA 16.490(27a)(4) (emphasis added).]
The plaintiff counties allege that the amendment to subsection 117a(4) improperly reduced state funding in violation of the Headlee Amendment.
To plead a cause of action under this part of § 29, a plaintiff must plead facts showing (1) that there is a continuing state mandate, (2) that the state actually funded the mandated activity at a certain proportion of necessary costs in the base year of 1978-79, and (3) that the state funding of necessary costs has dipped below that proportion in a succeeding year. Plaintiffs first amended complaint and some of their arguments before this Court suggest that they believe that pleading of a decrease in the funding requirement of § 117a established, per se, a violation of art 9, § 29. This is not so. Defendants may not have complied with their statutory commitment to fund fifty percent of the expenditures in 1978-79, and actual funding may have been below that level. The obligation that the maintenance-of-support clause of § 29 imposes on the state begins with whatever level of support was in place when Headlee was adopted.
We reject any implication that plaintiffs have pleaded a violation per se of § 29. However, the factual allegation of reduction in statutory level of funding creates a sufficient inference of actual reduction that we proceed as if plaintiffs alleged actual reduction of state funding.
A
We must first identify the activity or service under consideration. The Court of Appeals construed it as the development, maintenance, participation, and funding of a foster care system pursuant to chapter 12A of the Probate Code. MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq. and §§ 803(1) and 808-810 of the Revised Judicature Act, MCL 600.803(1), 600.808-600.810; MSA 27A.803(1), 27A.808-27A.810. Defendants ask us to view it more narrowly, as simply the funding of foster care services provided by order of the probate court. Amici curiae Wayne County Chief Executive and the county of Wayne characterize the activity or service at issue as the provision of foster care services under subsection 55(h) of the Social Welfare Act. MCL 400.55(h); MSA 16.455(h).
We reject the defendants’ limited views. We consider the activity or service at issue to extend to the providing of foster care services under subsection 55(h) of the Social Welfare Act as well as their funding under ch 12A, § 25 of the Probate Code. We reach this conclusion because the Probate Code implements the Social Welfare Act provisions regarding foster care services.
Once the activity is identified, the question becomes whether it was in existence and required at the time Headlee became effective. The Court of Appeals determined that, for purposes of the Headlee Amendment, chapter 12 of the Probate Code required counties to develop, maintain, participate in, and fund a foster care system. We agree with the Court of Appeals that state law requires counties to provide and fund foster care services. However, we believe that the mandate arises from both subsection 55(h) of the Social Welfare Act and ch 12A, § 25 of the Probate Code.
The Social Welfare Act, § 55, requires that the county administer a public welfare program under the direction of Children and Youth Services. Subsection 55(h) of the Social Welfare Act specifies:
The county department shall administer a public welfare program, as follows: ... (h) To investigate, when requested by the probate court, matters pertaining to dependent, neglected, and delinquent children, and wayward minors, under the jurisdiction of the probate court to provide supervision and foster care as provided by court order .... [MCL 400.55(h); MSA 16.455(h) (emphasis added).]
The phrase “shall administer a public welfare program” is mandatory, not permissive. MCL 400.55; MSA 16.455 and MCL 400.55(h); MSA 16.455(h). See Kramer v Dearborn Heights, 197 Mich App 723; 496 NW2d 301 (1992); Berrien Co v Michigan, 136 Mich App 772, 784; 357 NW2d 764 (1984) (a statute that states that the county “shall reimburse the state” constitutes a “requirement of state law” for purposes of Const 1963, ait 9, § 29). It requires the probate court to identify the children to whom foster care monies must go and places the children in the custody of the county. MCL 712A.1 et seq.) MSA 27.3178(598.1) et seq. Consequently, counties were required by state law to provide and fund foster care services before enactment of the Headlee Amendment. Therefore, they qualify as existing activities or services required of local units of government.
The Probate Code, ch 12A, § 24 implements § 55 of the Social Welfare Act by providing for placement of a child needing foster care who comes within probate court jurisdiction on a noncriminal matter. MCL 712A.24; MSA 27.3178(598.24). Under § 18 of the Probate Code, the court may enter various orders, including placement in a foster care home, private institution or agency, or commitment to the state as a state ward. See Wayne Co v Michigan, 202 Mich App 530, 532, 535; 509 NW2d 853 (1993); MCL 712A.18; MSA 27.3178(598.18). It may retain jurisdiction of the child as a court ward and turn over the child to the Michigan Department of Social Services for care and supervision. MCL 400.115b; MSA 16.490(25b). If the court makes a child a ward of the state, not the county, the county is responsible for paying the state fifty percent of the cost of the child’s care. MCL 803.305; MSA 25.399(55). Under § 25 of the Probate Code, the county must bear the full burden of its foster care expenditures if it fails to comply with the statutory reimbursement requirements of the Social Welfare Act. MCL 712A.25; MSA 27.3178(598.25).
Thus, the Social Welfare Act outlines the entire child care plan for county foster care services required under subsection 55(h), including the duties of the probate court and the counties. MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq. of the Probate Code implements the provisions of the Child Care Plan, because the establishment of a probate court is required in order to fulfill the mandate of the Social Welfare Act. MCL 712A.25; MSA 27.3178(598.25). Section 25 of ch 12A of the Probate Code requires counties to fund foster care services, and § 117a allows counties to receive reimbursement from the state for these services. Wayne Co, supra at 535-536.
The state asserts that county foster care services are not covered by the Headlee Amendment. It argues that a county may not qualify for reimbursement if it fails to meet certain requirements.
The state is correct in its statement that a county must qualify for reimbursement. Section 117c of the Social Welfare Act makes the county treasurer “the custodian of all money provided for the use of the county department of social services, [and] the juvenile division of the probate court . . . .” MCL 400.117c; MSA 16.490(27c). It provides that the county must maintain a child care fund. One of the purposes of the fund is to pay for foster care services under § 25 of ch 12A of the Probate Code. MCL 400.117c(l), (2); MSA 16.490(27c)(l), (2). Counties are entitled to reimbursement from the state for child care expendi tures if they satisfy the conditions for reimbursement prescribed by statute. They include submitting a plan and budget to the Department of Social Services pursuant to § 117a of the Social Welfare Act. The Office of Children and Youth Services is required to withhold funds from any county that does not comply with the § 117a conditions for reimbursement. MCL 400.117c; MSA 16.490(27c).
The focus of the state’s position is misplaced. The fact that certain qualifications must be met in order to receive reimbursement does not make the activity or funding “voluntary” for purposes of Headlee. The Headlee Amendment is implicated where an “activity or service” is involuntary. As we earlier concluded, the activity or service is the provision and funding of foster care. The provision of foster care services by counties is neither voluntary nor optional.
Our conclusion is consistent with our reasoning in State Bd of Ed v Houghton Lake Community Schools, 430 Mich 658; 425 NW2d 80 (1988). In Houghton Lake Schools, we construed a statutory provision, which stated:
“The minimum number of days of student instruction shall be 180. A district failing to hold 180 days of student instruction shall forfeit 1/180 of its total state school aid for each day of failure.” [Id. at 667.]
We held that the provision of 180 days instruction was not a required activity for purposes of the Headlee Amendment. Id. Headlee was not implicated because the statute anticipated that a local school board may choose to provide fewer days of instruction. It would merely forgo state aid.
As in Houghton, a county providing foster care services must comply with certain statutory conditions to receive state reimbursement, see n 7. However, unlike the schools affected by Houghton, a county may not discontinue foster care services. A county has one option only with respect to the provision of foster care services: it may forgo submitting the child care plan required by § 117c and not receive state financing under subsection 117a(4). Hence, in accordance with the reasoning of Houghton, the submission of a child care plan is voluntary and is not a “required activity” for Headlee purposes. However, the county must provide and fund foster care services under subsection 55(h) and 712A.24 and 712A.25. The state concedes this point.
Similarly, we find unpersuasive the state’s argument that county foster care is not a mandated activity because it is a court requirement.
The definition sections of the Headlee implementing act, properly construed, indicate that the court requirement exemption refers to the second sentence, not to the first, of § 29 of the Headlee Amendment. It is undisputed that it is the first sentence of § 29 that is at issue in this case.
Section 4 of the implementing act addresses the language in the second sentence of § 29. MCL 21.234; MSA 5.3194(604). Section 5 outlines the Legislature’s responsibility to appropriate monies for “the necessary costs of each state requirement.” MCL 21.235; MSA 5.3194(605). Subsection 4(5) defines “state requirement” as “a state law which requires a new activity or service or an increased level of activity or service beyond that required of a local unit of government by an existing law.” MCL 21.234(5); MSA 5.3194(604)(5). Subsection 4(5)(c) also exempts a “court requiremént” from the definition of a state requirement. MCL 21.234(5)(c); MSA 5.3194(604)(5)(c).
Section 12, on the other hand, addresses the language in the first sentence of § 29. Section 12 provides:
A state law shall not be enacted, which causes a reduction in the state financed proportion of the necessary costs of an existing activity or service required of local units of government by existing law, unless the existing law requiring an activity or service is repealed. [MCL 21.242; MSA 5.3194(612).]
Subsection 4(3) defines “[s]tate financed proportion of the necessary costs of an existing activity or ser vice required of local units of government by existing law” as
the percentage of necessary costs specifically provided for an activity or service required of local units of government by existing law and financed by the state on December 23, 1978. [MCL 21.234(3); MSA 5.3194(604)(3).]
Significantly, the term “state requirement” does not appear in the text of § 12 of the act. Therefore, the definition of a “state requirement,” including the exemption for a court requirement, is not applicable. From that we conclude that the sections of the implementing act that refer to a “state requirement” are useful only in interpreting the second sentence of § 29 of Headlee. The definition is intended to apply, inter aha, to a judicial ruling that increases a local financial burden beyond that required by a statute when Headlee was enacted.
Let us assume, arguendo, that the court requirement exemption could apply to the first sentence in § 29. We are not persuaded that the action taken by the probate court pursuant to §§ 24 and 25 of the Probate Code could constitute a court requirement.
By ordering foster care services, the probate court does not extend the local duties of a county through a judicial ruling. Under subsection 55(h) of the Social Welfare Act the county was already required to provide foster care to as many children as the court designated. Through its orders, the court merely identifies the children in need of foster care and places them in the custody of the county. Therefore, the probate court’s order is not an increased “level of activity or service beyond that required by existing law” for purposes of MCL 21.232(3); MSA 5.3194(602)(3) (emphasis added).
Before the effective date of the Headlee Amendment, subsection 55(h) of the Social Welfare Act and §§24 and 25 of the Probate Code required counties to provide and fund foster care. Therefore, the Headlee Amendment is implicated in the provision of county foster care services.
B
Since county foster care is a required service, we must determine the extent to which the state financed the service before the effective date of the Headlee Amendment. We must decide, as well, whether the child care fund amendment reduced that amount.
Before Headlee, the state reimbursed fifty percent of the annual expenditures from each county child care fund pursuant to subsection 117a(4) of the Social Welfare Act. The fund is the source of financing for county foster care services, subsection 117c(l)(f) of the Social Welfare Act. In 1980, the Legislature amended subsection 117a(4) of the Social Welfare Act. Under the amendment, the state would continue to finance fifty percent of the annual expenditures from each county child care fund. However, it would no longer reimburse expenditures that exceeded the amount budgeted and approved under § 117c. Consequently, the child care fund amendment potentially reduced the percentage that the state reimbursed to counties for their foster care expenditures.
The state contends that § 25 of ch 12A of the Probate Code has always required counties to pay one hundred percent of their foster care costs. Thus, as the state argues, there was no state financed proportion. We find to the contrary that, historically, the state and the counties have shared equally the responsibility of funding foster care services.
We recognize that § 25 of ch 12A of the Probate Code is the general funding mechanism that governs probate court decisions, including placing a child in foster care. It provides that the expenses incurred in carrying out chapter 12 are to be paid from the general county fund, unless otherwise provided by law. MCL 712A.25; MSA 27.3178(598.25). Subsection 117c(2) of the Social Welfare Act, however, specifically states that “[t]he child care fund shall be used for the costs of providing foster care for children under sections 18c and 117a and under the jurisdiction of the probate court . . . .” (Emphasis added.) MCL 400.117c(2); MSA 16.490(27c)(2). Consequently, the source of county foster care funds is “otherwise provided by law” for purposes of § 25 of ch 12A of the Probate Code.
The state contends that its obligation to finance foster care was voluntary because it did not need to reimburse a county that failed to comply with the conditions of reimbursement. We agree that subsec tion 117a(4) of the Social Welfare Act required the state to withhold reimbursement funds from a county that failed to meet the conditions of reimbursement. However, it also required the state to provide reimbursement to counties that met the conditions of reimbursement. Since the percentage that the state reimbursed always equaled fifty percent of the annual expenses for which a county met the conditions of reimbursement, the state’s obligation was never voluntary.
The child care fund amendment allows the state to limit its reimbursements to a fixed amount and transfer a portion of its costs of foster care services to the counties. As a consequence, the state lessens its financial burden by paying fifty percent of the projected costs of foster care, rather than fifty percent of actual costs. By that device, the state uses precisely the type of “escape hatch” this Court condemned in Livingston Co at 644.
The fact that subsection 117a(4) of the Social Welfare Act required the state to reimburse fifty percent of the county foster care expenses before Headlee satisfies only part of the question. There remains the additional fact that the text of Const 1963, art 9, § 29 directs the state to reimburse only the “necessary costs” of county foster care.
The Headlee implementing act defines a “necessary cost” as “the net cost of an activity or service provided . . . .” MCL 21.233(6); MSA 5.3194(603)(6). The net cost is the actual cost the state would incur if it provided the activity. Also, a cost incurred by a local unit because of a state mandate is not a necessary cost if less than “a de minimus cost.” A de minimus cost is “a net cost to a local unit of government resulting from a state requirement which does not exceed $300.00 per claim.” MCL 21.232(4); MSA 5.3194(602)(4).
Consistent with the implementing act, this Court has stated that “necessary costs” are those essential to maintain a mandated program. Durant v State Bd of Ed, 424 Mich 364, 391; 381 NW2d 662 (1985) (Durant I).
Providing only the actual cost to the state, if it provided the service, is in keeping with the voters’ desire that there be no shift of responsibility for services from the state to the local governments without adequate compensation. Actual cost in the marketplace is also a reliable measure of what must be paid in order for a service or activity to be provided. [Id. at 391.]
In Durant III, the Court of Appeals interpreted this language from Durant I to mean that “absent countervailing evidence — whether based on realized costs or theoretical costs — actual costs would be satisfactory as a prima facie indicator of ‘necessary costs.’ ” Durant v Dep’t of Ed (On Third Remand), 203 Mich App 507, 514; 513 NW2d 195 (1994) (Durant III).
In Oakland Co, the Court of Appeals reasoned:
[I]t is prima facie reasonable for the Legislature to establish a presumption that County expenditures for which reimbursement from the State is sought but which are not budgeted were not necessary, and thus are not eligible for mandatory proportionate funding under article 9, § 29. [Unpublished opinion per curiam, issued February 9, 1995 (Docket No. 159938), slip op at 4, citing Durant III at 513-514.]
However, the Court of Appeals misapplied Durant III.
The budgeted costs in the instant case are not the actual costs of a county’s foster care services. Rather, the budget, formulated pursuant to § 117c of the Social Welfare Act, is an estimate of future costs based on previous years’ expenses. Since the number of children requiring county foster care varies annually, the proposed budget is merely an estimate of what costs a county program will incur the following year. The parties make no assertion that the budgeted amount is the same as a county’s actual expenditure for the current fiscal year. Section 117c(5). Therefore, the Court of Appeals reasoning is flawed.
As these cases were decided by summary disposition, the parties did not have an opportunity to develop a record showing the necessary costs of foster care services provided. The parties also were unable to submit proofs showing what claims the counties submitted to the state for foster care service reimbursement. These proofs are needed for a determination of what constitutes a “claim” for purposes of MCL 21.232(4); MSA 5.3194(602)(4). Therefore, on remand, the trial court must decide what costs are necessary county foster care costs, including whether any fall within the de minimus exclusion.
m
On remand, the lower court will determine if the child care fund amendment reduced the percentage of the state financing that existed before the enactment of Headlee. If a reduction is found to have occurred, the plaintiff counties are entitled to a proper remedy. We will address briefly the remedy generally appropriate in a § 29 violation case in light of Durant v Michigan, 456 Mich 175; 566 NW2d 272 (1997).
This Court’s decision in Durant is the first to address § 29 Headlee violations remedies. Id. at 204. In Durant, we noted that declaratory relief is typically the appropriate relief in § 29 actions. We reasoned that violations should be subject to expedited judicial resolution. Id. at 205-206. Under Durant, future plaintiffs must allege the type and exdent of the harm so that the court may determine if a § 29 violation occurred for purposes of making a declaratory judgment. In that way, the state will be aware of the financial adjustment necessary to allow for future compliance.
In Durant, we determined that the state’s “prolonged recalcitrance . . . necessitates a substantial recovery” under the circumstances of this case. Id. at 204. Our implicit reasoning was that much harm had already been done. The imposition of damages served both to remedy some of the past harm and to provide incentive to comply with Headlee in the future.
The resolution of Durant was the result of the realization that much of the harm sustained in § 29 Headlee violations cannot be rectified when the resolution is so far remote in time from the violation. The reason is directly related to the nature of the harm involved in Headlee violations.
Thus, we concluded that a creative constitutional experiment such as Headlee was deserving of an equally creative remedy. Anything less would offer no correction of the financial harm. Something more would allow a windfall to the recovering parties. See, generally, id. at 207-208. An important basis for this conclusion was the fact that the assessment of ponderous damages against the state years later would result in taxpayers suffering twice for the state’s wrongdoing. If monetary damages were routinely available for § 29 violations, additional taxation may be necessary to fund the damage award. It would adversely affect the efficient balancing of the state’s budget, which in turn would negatively affect taxpayers. Thus, we concluded, the remedy should be consistent with the raison d’etre of Headlee, which has always been termed a taxpayer revolt. Id. at 210.
Consistent with the resolution in Durant, an award of damages in instances of prolonged underfunding by the state before the commencement of litigation may also be prudent under limited circumstances.
As for standing, we believe that local units of government have standing to sue on behalf of the public they represent under § 29 of Headlee. Waterford School Dist v State Bd of Ed, 98 Mich App 658; 296 NW2d 328 (1980). Furthermore, the reasoning of Durant with respect to attorney fees suggests that all entities and persons bringing a claim for relief under § 29 should ordinarily be treated similarly. Accordingly, we conclude here that application of the one-year limitation period found in RJA § 308 to any § 29 case involving monetary relief is appropriate. We express no opinion on whether the Court of Claims has jurisdiction over this claim. The state did not appeal from the determination made below on this issue, but rather conceded the point in its brief.
IV
We reverse the decision of the Court of Appeals. We remand to the Court of Claims to (1) allow plaintiffs to amend their complaints to conform with this opinion; (2) determine whether the child care fund amendment reduced the state reimbursement of necessary costs below the proportion financed during the base year; and, (3) determine what relief is required if a violation of § 29 is found.
Cavanagh and Boyle, JJ., concurred with Kelly, J.
On September 1, 1988, Oakland County and Roy Rewold, Chairperson of the Oakland County Board of Commissioners and a taxpayer, filed a complaint in the Court of Claims. They sought declaratory and monetary relief, as -well as costs and fees. On May 1, 1989, twenty-four other plaintiffs filed an almost identical complaint. Both complaints were consolidated for hearing on August 14, 1989.
The child care fund amendment also added subsections 6 and 7 to § 117a and subsection 5 to § 117c.
The actual proportion would not have to be pleaded, but could be established through discovery or proof at trial.
By using the past tense, we do not mean to imply that an action seeking declaratory judgment would be premature before underfunding has occurred, so long as there is an actual controversy.
It is by no means uncommon for a succeeding Legislature to decline to appropriate funds at a level promised by a statute adopted by a prior Legislature.
In particular, defendants’ briefs do not suggest that defendants have been misled in any way. On remand, plaintiffs should request and the Court of Claims should grant a motion to amend the complaint to conform with this opinion.
The Headlee implementing act defines an “activity” as “a specific and identifiable administrative action of a local unit of government.” MCL 21.232(1); MSA 5.3194(602)(1). It defines a “service” as “a specific and identifiable program of a local unit of government which is available to the general public or is provided for the citizens of the local unit of government.” MCL 21.234(1); MSA 5.3194(604)(1). Defendants do not dispute that both the provision and funding of foster care services meet these definitions.
The Court of Appeals in Oakland Co stated:
The Juvenile Code [Chapter 12A of the Probate Code], MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq. establishes Michigan’s juvenile justice and foster care system. Counties have no choice whether to participate, individually or as part of a multi-county probate district, in the activities of the Juvenile Division of the Probate Court. To the contrary, RJA § 803(1) mandates that each county that is not part of a probate court district created pursuant to RJA §§ 808 to 810 or previously created pursuant to law shall have at least one judge of probate. RJA §§ 808-810 allow less populous counties to join together to form a probate district, but either as part of a multi-county district or a single county district, each county is required by the Revised Judicature Act to have a probate court. Each probate court is mandated to carry out the functions prescribed, inter alia, in the Juvenile Code, and thus expenses incurred in carrying out the Juvenile Code, when paid upon the order of the Judge of Probate, are “activities or services required by state law.” But for these State statutes, counties would have no obligation to create and maintain, or participate in, the juvenile justice and foster care system, and accordingly such activities are “required by State law” for Headlee Amendment purposes. Durant v Dep’t of Ed (On Third Remand), 203 Mich App 507, 516-517; 513 NW2d 195 (1994). [Unpublished opinion per curiam, issued February 9, 1995 (Docket No. 159938), slip op at 3.]
9 Therefore, subsection 55(h) existed at the time § 29 of Headlee became effective. 1951 PA 248.
There is a presumption that “shall” is mandatory.
A necessary corollary to the plain meaning rule is that courts should give the ordinary and accepted meaning to the mandatory word “shall” and the permissive word “may” unless to do so would clearly frustrate legislative intent as evidenced by other statutory language or by reading the statute as a whole. [Browder v Int’l Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d 668 (1982).]
Reading the Social Welfare Act as a whole, we see nothing to suggest that the Legislature intended to make participation on the part of counties voluntary.
The first two sentences of § 29 provide:
The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. [Const 1963, art 9, § 29.]
A “court requirement” is defined as:
[A] new activity or service or an increase in the level of activity or service beyond that required by existing law which is required of a local unit of government in order to comply with a final state or federal court order arising from the interpretation of the constitution of the United States, the state constitution of 1963, an existing law, or a federal statute, rule, or regulation. [MCL 21.232(3); MSA 5.3194(602)(3).]
We note that defendants’ assertion is contrary to a 1951 legislative staff report on the history of the evolution of welfare programs in Michigan. The report notes that 1939 PA 280 created the current Social Welfare Act. “State supervision over direct relief was extremely general in spite of the fact that at least 50% of the funds for this purpose [were] to be furnished by the State . . . .” Staff Report No. 24 to the Michigan Joint Legislative Committee on Reorganization of State Government, October, 1951.
The minimum conditions for reimbursement, which applied before the Headlee Amendment and after the child care amendments, are provided in §§ 117a and 117c and the applicable administrative regulations. MCL 400.117a, 400.117c; MSA 16.490(27a), 16.490(27c).
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Per Curiam.
Bemetta Arnold suffered a work-related injury while employed by defendant General Motors Corporation. Despite her partial disability, she performed lighter duty work, both for General Motors and for a subsequent employer, Suburban Mobility Authority for Regional Transportation (smart). Her work for smart aggravated a back condition to the point that she could no longer work.
The issue raised by the present appeal is whether, under subsection 301(5) of the Worker’s Disability Compensation Act, Ms. Arnold is entitled to benefits from General Motors based on her wages at the time of the original injury. The Worker’s Compensation Appellate Commission and the Court of Appeals have answered in the negative and found that plaintiff is entitled to benefits based only on her later employment with smart, which aggravated her back condition. We conclude that because plaintiff was disabled by her injury at General Motors, and her subsequent employment was in the nature of “favored work,” she is entitled to benefits from General Motors based on her wage at the time of the original injury.
i
The facts surrounding plaintiffs employment history and back condition and the magistrate’s findings were summarized by the WCAC:
Decedent began work with defendant in 1976 performing various strenuous assembly jobs. The Magistrate found that on October 24, 1986, decedent hurt her back while applying a piece of rubber weighing approximately 25 pounds under a dashboard on the assembly line at defendant. The Magistrate also found that as a result of this injury, decedent was never again able to return to the physically strenuous assembly work she had performed for defendant prior to her injury. Following this injury, decedent returned to work performing lighter duties. She took a sick leave for non-work-related foot surgery in early 1987, and upon her return to work was laid off. The Magistrate found that decedent was laid off from favored work.
Eventually, decedent found employment as a part-time busdriver at Suburban Mobility Authority Regional Transportation (smart). She was given a pre-employment physical and told to obtain a vocationally handicapped certificate because of her injured back. She did obtain said certificate and commenced employment in May of 1988. The Magistrate found that the work with smart aggravated her back condition, and therefore found a second date of injury on plaintiff’s last day of work, March 1, 1989. . . .
On the basis of these findings, the Magistrate found defendant liable for weekly benefits of $297.70 from December 11, 1987 (applying the two-year-back rule) through May 8, 1988. She found smart hable for weekly benefits of $94.60 from March 2, 1989, through March 2, 1990, and the Second Injury Fund hable pursuant to Section 521 thereafter at the same rate. [1994 Mich ACO 772, 773.]
On appeal, the WCAC affirmed with modifications. It said that because the new aggravation injury took place while plaintiff was employed by smart, liability for disability was the exclusive responsibility of that employer. The WCAC reasoned:
[OJnce the new aggravation injury took place with smart, liability for decedent’s disability became the exclusive responsibility of SMART (and subsequently the Second Injury Fund) on the basis of the average weekly wage with smart. This result is mandated by Section 301(1), which provides that[:]
“[T]ime of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions that resulted in the employee’s disability or death,”
and by the court cases which have extended this principle to situations involving several single-event injuries. It is firmly established law that the last employer to contribute to the disability is responsible for compensation. Dressler v Grand Rapids Die Casting Corp, 402 Mich 243 [262 NW2d 629] (1978); Johnson v DePree Co, 134 Mich App 709 [352 NW2d 303] (1984); Mullins v Dura Corp, 46 Mich App 52 [207 NW2d 404] (1973). The finding of a subsequent injury with a subsequent employer aggravating a claimant’s underlying condition absolves the first employer of liability for benefits as of the date of the subsequent injury. Stahl v General Motors Corp, 1993 ACO #440; 1993 Mich ACO 1355.
In this case, Section 301(1) and the case law placing the entire liability for compensation benefits on the last employer (and/or carrier) where an injury contributed to disability operates to produce a rather harsh result. However, this subsection and case law were designed to avoid the complexities and difficulties that would be inherent in a system where liability for any one period of time must be apportioned among multiple employers. For the period as of decedent’s date of injury with smart (found to be her last day of work, March 1, 1989), the Magistrate did not err in holding that only smart (and subsequently the Second Injury Fund) are liable for compensation benefits, and that weekly benefits must be based on decedent’s average weekly wage at smart. [Id. at 774.]
The Court of Appeals denied the plaintiffs application for leave to appeal, and the plaintiff filed an application for leave to appeal to this Court. In lieu of granting leave to appeal, we remanded the case to the Court of Appeals for consideration as on leave granted.
n
On remand, a divided Court of Appeals affirmed. The majority noted the plaintiff’s contention that the wcac should have applied subsection 301(5)(e), but said that the plaintiff misconstrued the effect of subsection 301(5):
The subparts of subsection 301(5) all deal with the level of benefits to be paid, not whether benefits are to be paid in a particular circumstance. Lee v Koegel Meats, 199 Mich App 696, 702; 502 NW2d 711 (1993). The statute did not declare a right to compensation different from existing law.
The existing law applied by the wcac is the Massachusetts-Michigan rule governing subsequent injuries or aggravations of initial injuries. The employer at the time of a subsequent disabling injury or aggravation of a prior injury is wholly liable for payment of compensation benefits when the subsequent injury or aggravation contributes to the disability. Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 253-254; 262 NW2d 629 (1978), superseded in part by 1980 PA 357, MCL 418.301(2); MSA 17.237(301)(2). In enacting § 301(5), the Legislature did not modify § 301(1), which provides that the time of injury in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions that resulted in the disability.
Here, it is uncontested that decedent’s work as a bus driver aggravated her prior back injury. Thus, smart and the Second Injury Fund are wholly liable for the payment of compensation benefits. We hold that the Legislature did not intend § 301(5)(e) to apply when an employee receives an aggravation of a prior injury in later employment. . . . [Tjhe broad language of subsection e was intended to cover situations where an employee, regardless of fault, loses favored work. It was not intended to cover situations where an employee is required to leave subsequent employment with another employer because of another compensable injury.
m
The Court of Appeals majority premised its decision on the rules governing subsequent injuries and aggravations of previous injuries. These rules apply when the injury in the first employment did not, by itself, render the employee disabled, or the employee had recovered sufficiently so as not to be disabled until suffering the injury in the later employment. As the Court of Appeals majority noted, in these situations, Michigan law places the entire liability for benefits on the last employer.
The flaw in applying that principle in this case is that the plaintiff remained disabled by the injury suffered while employed by General Motors. In the aggravation cases, although the plaintiff suffered an injury at the previous employer, the injury was not disabling. See, e.g., Dressler v Grand Rapids Die Casting Corp, supra:
Defendant Michigan Plating asserts that plaintiff was “disabled from carrying on his employment at Grand Rapids Die Casting Corporation [his original employer] and accordingly was thereafter disabled from heavy work,” and that therefore Grand Rapids Die Casting should be held liable for the payment of compensation.
If plaintiff were disabled from the time of his employment at Grand Rapids Die Casting, and this same disability continued through the time of his subsequent employment at Michigan Plating, defendant’s assertion would be correct, Mullins v Dura Corp, 46 Mich App 52; 207 NW2d 404 (1973). However, the meaning of “disability,” in conjunction with the facts of this case, establishes that there was competent evidence by which the. wcab could find that plaintiff was disabled on the last day of his employment with Michigan Plating.
There is no question that plaintiff sustained a physical injury to his back while in the employ of Grand Rapids Die Casting, and according to the opinion of the wcab, this “single-event traumatic injury . . . resulted in immediate disability thereafter.” However, the facts as reasonably accepted by the wcab demonstrate that within a short time of the fall plaintiff was able to perform his regular duties at Grand Rapids Die Casting. Further, within a short time from termination of his employment at Grand Rapids Die Casting, plaintiff was not only able but did in fact obtain work suitable to his qualifications and training, and was able to perform such work, albeit with various degrees of discomfort from his pre-existing back condition.
According to defendant’s own statement of the facts of this case, plaintiff did the same type of work at Apex as he had done at Grand Rapids Die Casting. The termination of that employment was due to a layoff and not inability to perform the required work. The same pattern of employment, ability to perform, and economic layoff occurred at Ronel’s. These facts support a finding by the wcab that plaintiff was not disabled during this period. [402 Mich 251-252.]
The provisions of subsection 301(5) apply to persons who are disabled, but nonetheless obtain other employment. The various subsections spell out in detail the benefits payable by the original employer both during and after such employment. In this case, the plaintiff worked less than one hundred weeks after her injury at General Motors, making subsection 5(e) applicable. This subsection establishes that with subsequent employment of that duration, the employee does not establish a new wage-earning capacity, and is entitled to receive “compensation based upon his or her wage at the original date of injury.” We can find no basis in the language of the section to conclude that the phrase, “If the employee . . . loses his or her job for whatever rea son,” should be read to exclude situations involving aggravation of an injury by the new, favored employment.
Though the language of the statute is clear, we additionally note that this interpretation is consistent with the objective of the statute. Section 301 is intended to encourage disabled workers to seek employment within their limitations, which benefits everyone concerned, including the former employer. As the dissenting judge in the Court of Appeals noted, under the approach of the Court of Appeals, a claimant who returns to work at lower wages risks a drastic reduction in worker’s compensation benefits if a subsequent injury occurs.
The Court of Appeals majority said that the sub-parts of subsection 301(5) deal only with the level of benefits paid, not whether they are to be paid in a particular circumstance. However, that oversimplifies the analysis of the statute. Section 301(5)(e) designates the “wage at the original date of injury” as the basis for setting benefits. Under the circumstances presented here, we hold that the statute contemplates that the original employer is to pay benefits computed using wages at the time of the original injury.
Accordingly, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and remand this case to the Worker’s Compensation Appellate Commission for entry of an order directing General Motors to pay the difference between benefits computed using wages at the time of the original injury and the benefits paid by SMARTand the Second Injury Fund.
Mallett, C.J., and Brickley, Cavanagh, Boyle, Weaver, Kelly, and Taylor, JJ., concurred.
Ms. Arnold died during the pendency of the appeal, and her estate was substituted as the plaintiff. We will continue to refer to Bemetta Arnold as the “plaintiff.”
MCL 418.301(5); MSA 17.237(301)(5).
These provisions, initially added to the statute by 1981 PA 200, constitute a partial codification of the judicially created favored-work doctrine. See, generally, Pulver v Dundee Cement Co, 445 Mich 68, 74-75; 515 NW2d 728 (1994). Relevant to the instant case are subsections (4) and (5):
(4) As used in this chapter, “disability” means a limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease. The establishment of disability does not create a presumption of wage loss.
(5) If disability is established pursuant to subsection (4), entitlement to weekly wage loss benefits shall be determined pursuant to this section and as follows:
(a) If an employee receives a bona fide offer of reasonable employment from the previous employer, another employer, or through the Michigan employment security commission and the employee refuses that employment without good and reasonable cause, the employee shall be considered to have voluntarily removed himself or herself from the work force and is no longer entitled to any wage loss benefits under this act during the period of such refusal.
(b) If an employee is employed and the average weekly wage of the employee is less than that which the employee received before the date of injury, the employee shall receive weekly benefits under this act equal to 80% of the difference between the injured employee’s after-tax weekly wage before the date of injury and the after-tax weekly wage which the injured employee is able to earn after the date of injury, but not more than the maximum weekly rate of compensation, as determined under section 355.
* * *
(e) If the employee, after having been employed pursuant to this subsection for less than 100 weeks loses his or her job for whatever reason, the employee shall receive compensation based upon his or her wage at the original date of injury.
It modified the magistrate’s decision to require General Motors to pay benefits through plaintiff’s last day of work at smart, with credit for wages paid by smart.
Docket No. 174816, order of September 2, 1994.
448 Mich 913 (1995).
220 Mich App 494, 497-498; 560 NW2d 59 (1996).
7 Circuit Judge John F. Foley, sitting on the Court of Appeals by assignment, dissented. He argued that the fact that a worker aggravates a condition during subsequent employment should not result in a reduction of benefit rates:
The fact that the deceased aggravated her condition during her subsequent employment should not result in a reduction of her weekly benefit rate under § 301(5)(e), MCL 418.301(5)(e); MSA 17.237(301)(5)(e). To so hold would result in an absurdity. A worker who is fired or laid off during the first one hundred weeks of subsequent employment would be in a better position than a worker who had to stop working because of an aggravation of a preexisting work-related condition. If such were the law, any claimant who is employed by a subsequent employer at lower wages is taking serious risk, because if an aggravation occurred, the motivation and effort involved in seeking subsequent employment would result in a drastically reduced worker’s compensation rate, as here. This is clearly not what the Legislature intended. Nor would such a result be consistent with the remedial nature of the Worker’s Disability Compensation Act. [Note 6 supra at 499-500.]
It would make no sense whatsoever for the subsequent employer, who was paying wages at a lower rate, to be liable for benefits based on the higher wages of the previous employment.
We note that none of the parties argued that the subsequent employer is entitled to reimbursement from the original employer of benefits paid. That is, none of the parties argued that, under “favored work” principles, General Motors is responsible for the full amount of benefits to which plaintiff was entitled after leaving smart. Accordingly, we express no opinion on this issue. | [
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Boyle, J.
The trial court granted defendant’s motion to dismiss with prejudice charges of burning real and insured property following the second declaration of a mistrial because of jury inability to agree on a verdict. We granted leave to appeal to determine whether the trial court correctly inferred this remedy from the substantive Due Process Clause of the constitution. We hold that the due process guarantees of the Michi gan and United States Constitutions, Const 1963, art 1, § 17, and US Const, Am XIV, do not create a right to preclude retrial of this defendant in these circumstances. We reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings.
i
The defendant was charged and bound over on one count of burning real property, MCL 750.73; MSA 28.268, and one count of burning insured property, MCL 750.75; MSA 28.270, following a fire that damaged his business in Garden City hi June, 1990. Trial began in June, 1993, and a mistrial was declared after the jury was unable to reach a verdict. In February, 1994, a second trial was commenced against the defendant in which substantially the same evidence was offered. Again, the jury was unable to reach a verdict, and a mistrial was declared.
The defendant moved for dismissal of the charges. Acknowledging that the earlier mistrials had not been the result of procedural or substantive errors in the trial process, defendant contended that retrial after two hung juries would be so fundamentally unfair that it would violate the constitutional guarantee of due process. The trial court agreed and dismissed the charges with prejudice.
The Court of Appeals affirmed in a two-to-one decision. It reasoned that the emotional and financial strain of a third trial would weigh so heavily on defendant that it would violate the defendant’s right to due process. We granted leave to appeal.
n
On appeal, defendant argues only that the due process guarantees of the state and federal constitutions preclude a third trial on these charges. The standard of review is de novo with regard to questions of law. People v Carpentier, 446 Mich 19; 521 NW2d 195 (1994).
The Fourteenth Amendment to the United States Constitution and Const 1963, art 1, § 17 guarantee that no state shall deprive any person of “life, liberty or property, without due process of law.” Textually, only procedural due process is guaranteed by the Fourteenth Amendment; however, under the aegis of substantive due process, individual liberty interests likewise have been protected against “ ‘certain government actions regardless of the fairness of the procedures used to implement them.’ ” Collins v City of Harker Heights, 503 US 115, 125; 112 S Ct 1061; 117 L Ed 2d 261 (1992), quoting Daniels v Williams, 474 US 327, 331; 106 S Ct 662; 88 L Ed 2d 662 (1986). The underlying purpose of substantive due process is to secure the individual from the arbitrary exercise of governmental power. The defendant has failed to distinguish between the Michigan and federal due process provisions and has not argued that the Michigan provision should be interpreted differently from its federal counterpart. We interpret the state provision as coextensive with the federal provision for purposes of this appeal. Absent definitive differences in the text of the state and federal provision, common-law history that dictates different treatment, or other matters of particular state or local interest, courts should reject the “unprincipled creation of state constitutional rights that exceed their federal counter parts.” Sitz v Dep’t of State Police, 443 Mich 744, 763; 506 NW2d 209 (1993).
in
The defendant relies on five cases in support of the contention that retrial would violate the substantive guarantees of due process: United States v Ingram, 412 F Supp 384 (D DC, 1976), State v Witt, 572 SW2d 913 (Tenn, 1978), State v Moriwake, 65 Hawaii 47; 647 P2d 705 (1982), State v Abbati, 99 NJ 418; 493 A2d 513 (1985), and People v Thompson, 424 Mich 118; 379 NW2d 49 (1985). However, none of these cases except Thompson addresses the Due Process Clause in the context of a retrial after a properly declared mistrial, and Thompson does so only in dicta. The prosecutor may not abort a trial over a defendant’s objection absent manifest necessity, People v Dawson, 431 Mich 234, 252; 427 NW2d 886 (1988), retry a defendant on higher charges after mistrial in an effort to penalize the defendant, People v Ryan, 451 Mich 30; 545 NW2d 612 (1996), nolle prosequi charges at trial without leave of court, MCL 767.29; MSA 28.969, or retry a defendant after having one full and fair opportunity at obtaining a conviction. Dawson, supra at 250.
Neither the cases cited nor our independent research supports the proposition that the protections of substantive due process require recognition of a remedy for the harm incident to one or more mistrials. Some courts have declared the inherent author ity to preclude retrials following mistrials attributable to jury deadlock. However, we reject the rationale that the administration of justice confers authority on this Court to allocate resources available to law enforcement, Abbati, supra at 429, or to assess the relative priority of discrete charges in a given community.
iv
The United States Supreme Court has declined to expand substantive due process as an independent source of limitation on government.
In Hurtado v California, 110 US 516, 527; 4 S Ct 111; 28 L Ed 232 (1884), it was held that the Fourteenth Amendment Due Process Clause did not make applicable to state governments the Fifth Amendment’s requirement of indictment and presentment to a grand jury. The Court posited that Fourteenth Amendment due process encompassed only those safeguards not specifically found in the Bill of Rights. 1 LaFave & Israel, Criminal Procedure (2d ed), § 2.4(b), p 55. However, the Court eventually concluded that the Fourteenth Amendment incorporated and made applicable to the states numerous protections contained in the Bill of Rights.
Other than in matters relating to marriage, family, procreation, and the right to bodily integrity, the Court has been reluctant to expand the scope of substantive due process beyond the explicit textual source of constitutional protection. Albright v Oliver, 510 US 266, 272; 114 S Ct 807; 127 L Ed 2d 114 (1994). Rather than approaching issues of restriction of government authority in areas of criminal proceedings from the unstructured perspective of “whether, in the view of the Court, the governmental action in question was ‘arbitraiy,’ ” id., the Court has deemed restriction of government authority appropriately encompassed by the remedy the framers of the Bill of Rights created.
Although it is unclear at this stage whether the Court will ultimately conclude that substantive due process has been supplanted by specific provisions of the Bill of Rights, see Lewis v Sacramento Co, 98 F3d 434 (CA 9, 1996), cert gtd 520 US 1250; 117 S Ct 2406; 138 L Ed 2d 173 (1997), it is clear that the Court will not rely on substantive due process to sanction new remedies that duplicate the protections of specific constitutional provisions. Thus, in Graham v Connor, 490 US 386; 109 S Ct 1865; 104 L Ed 2d 443 (1989), the Court refused to recognize a constitutional remedy under 42 USC 1983 on the basis of the assertion that the use of excessive force in making an arrest constituted a violation of substantive due process. The Court held that the remedy for a claim of excessive force during arrest must be determined with reference to the Fourth Amendment as the explicit constitutional standard protecting the asserted interest, rather than the abstract claim of a violation of substantive due process.
In Collins v Harker Heights, supra, the Court again underscored its reluctance to expand the doctrine of substantive due process, explaining:
As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. lid. at 125.]
In Albright v Oliver, supra at 268-271, the Court similarly declined to recognize a substantive right of due process to be free from criminal prosecution except upon probable cause. Because the first step in alleging a constitutional violation is to identify the specific right infringed, the Court began by reiterating that substantive due process rights have for the most part accorded to “matters relating to marriage, family, procreation, and the right to bodily integrity.” Id. at 272. Although the lead opinion was signed by only a plurality of the justices, a majority of the Court joined in the rationale limiting the scope of substantive due process on the ground that
[w]here a particular amendment “provides an explicit textual source of constitutional protection” against a particular sort of government behavior, “that Amendment, not the more generalized notion of ‘substantive due process’ must be the guide for analyzing th[e] claims.” [Id. at 273, quoting Graham v Connor, supra at 395.]
V
The contention that the Court should infer a remedy precluding retrial because of “the anxiety, stress, humiliation, and cost to the defendant of continual reprosecution where no new evidence exists” is a general claim of governmental unfairness. “Every prosecution ... ‘is a public act that may seriously . . . disrupt [the defendant’s] employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends,’ ” Albright, supra at 296 (Stevens, J., dissenting), quoting United States v Marion, 404 US 307, 320; 92 S Ct 455; 30 L Ed 2d 468 (1971). Further, if recognized, guidelines for respon sible decision making in applying the new remedy would be scarce and open-ended. If three trials are too many under substantive due process, why are not two? It could follow that either any retrial after a mistrial is barred as a violation of substantive due process, or that the theory as applied would result in arbitrary assertion of judicial authority.
VI
The relationship between federal and state governments and that of the state judiciary to its coordinate branches are obviously different. The common concern is the reach and contours of assertion of the power to declare “arbitrary” the conduct of government actors. While the focus of this Court’s concern regarding expansive interpretation of our authority has been expressed in terms of separation of powers, rather than the powers reserved for the states under the Tenth Amendment, we have also cautiously responded to requests to recognize new remedies that would limit the authority of the executive or legislative branches of government. We declined the invitation to expand judicial authority in People v Mateo, 453 Mich 203, 211; 551 NW2d 891 (1996). There, we abstained from deciding whether the harmless error statute was a legislative attempt to supplant judicial authority. We refused to require compliance with sentencing guidelines because the Legislature had not mandated such compliance, People v Milbourn, 435 Mich 630, 656-657; 461 NW2d 1 (1990), and rejected the claim that circuit courts have the authority to nolle prosequi a case. People v Curtis, 389 Mich 698, 711; 209 NW2d 243 (1973). “[A]s long as jeopardy has not attached, or the statute of limitations not run, our law permits a prosecutor to reinstate the original charge on the basis of obtaining a new indictment and thus beginning the process anew.” Id. at 706. See also People v Gallego, 430 Mich 443, 452; 424 NW2d 470 (1988) (enforcing an unauthorized promise by the police not to prosecute would undermine the prosecutorial function); Employees & Judge of the Second Dist Court v Hillsdale Co, 423 Mich 705, 723; 378 NW2d 744 (1985) (an administrative order to compel funding in excess of appropriations is an improper exercise of judicial power); Genesee Co Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974) ; Genesee Co Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972). Const 1963, art 3, § 2 provides:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
We hold that in dismissing this case in the circumstances here presented, the trial judge violated the doctrine of separation of powers.
The amorphous claim endorsed by the trial court and the Court of Appeals would inevitably call for courts to decide what policy of retrial is best for all the people of Michigan. In words equally appropriate to the relationship between the branches of state government and our citizens, Judge Easterbrooke has observed:
Which policy is best for the people ... is a complex question, answered different ways at different times in this nation (and in dramatically different ways by different nations today) — but it is a question about moral and efficient law enforcement for the people to debate and resolve. It is not a question whose only answer must be given by the judicial branch on the basis of “substantive due process.” [Mays v East St Louis, 123 F3d 999, 1003 (CA 7, 1997).]
Finally, absent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor. Nor has the case been made that harm to an interest not addressed by specific provisions of the Bill of Rights requires a new remedy. Whatever the reach of substantive due process, this claim does not approach the threshold. In this context, we find no historical, textual, or empirical foundation that requires inferring a new remedy from the penumbras of substantive due process.
vn
For the reasons stated, we hold that the reprosecution of this defendant is not a violation of the due process guarantees of the Michigan and United States Constitutions, Const 1963, art 1, § 17, and US Const, Ana XIV. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings.
Mallett, C.J., and Brickley, Weaver, and Taylor, JJ., concurred with Boyle, J.
In the first trial, the jury voted either ten to two in favor of conviction or eight to four in favor of conviction. In the second trial, the jury was evenly divided, with six jurors voting in favor of conviction and six jurors voting in favor of acquittal. While the defendant submits that the juror votes are material to our result, we decline the invitation to decide the issue on this basis. Neither this Court nor any other court has obligated jurors to disclose their votes other than in the context of confirming that they agree with a verdict reported as unanimous. It follows that we have not recognized a right on behalf of either the prosecution or the defense to such information.
The trial court concluded that retrial would be fundamentally unfair because 1) two prior trials had resulted in jury deadlock, 2) the prosecutor had no new evidence to offer against the defendant, 3) the likelihood of a third hung jury was high because there was no new evidence against the defendant, and 4) retrial would be an inefficient use of judicial resources.
219 Mich App 127; 555 NW2d 728 (1996).
The dissenting judge agreed that due process guarantees may require dismissal of the charges against a defendant over the prosecutor’s objection under certain circumstances, but argued that this defendant’s right to due process would not be violated to such a degree that dismissal was justified. Id. at 136.
454 Mich 873 (1997).
Defendant concedes that his rights under the Double Jeopardy Clause have not been violated by the repeated trials. See Richardson v United States, 468 US 317; 104 S Ct 3081; 82 L Ed 2d 242 (1984); People v Thompson, 424 Mich 118, 125; 379 NW2d 49 (1985).
The express language of the Fourteenth Amendment of the United States Constitution provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law ....
Const 1963, art 1, § 17 provides:
No person shall be . . . deprived of life, liberty or property, without due process of law.
For further recognition that the Due Process Clause of the Fourteenth Amendment confers both substantive and procedural rights, see United States v Salerno, 481 US 739, 746; 107 S Ct 2095; 95 L Ed 2d 697 (1987).
See Foucha v Louisiana, 504 US 71, 78; 112 S Ct 1780; 118 L Ed 2d 437 (1992); see also Fallon, Some confusions about due process, judicial review, and constitutional remedies, 93 Col L R 309, 310 (1993).
Factors to be considered when determining whether a state constitutional provision affords protection different from its federal counterpart include “1) the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest.” Sitz, supra at 763, n 14.
In Ingram, supra, the court held that dismissal of an indictment after the defendant’s second mistrial was required in the “interests of justice” as “simply a matter of fair play.” Id. at 385-386. The Due Process Clause was not addressed by the court.
In Witt, supra, the Tennessee Supreme Court barred retrial of a defendant whose indictments for first-degree murder were dismissed after three juries failed to reach unanimous verdicts. After finding that the constitutional right to due process was not involved, the court relied on the trial courts’ “inherent authority” to terminate prosecutions in the exercise of “sound judicial discretion.” Id. at 917.
Likewise, in Moriwake, supra, the Due Process Clause was not addressed when the court concluded that judges have inherent power to dismiss an indictment with prejudice over the objection of the prosecution where two mistrials were declared because the respective juries were unable to reach verdicts. Id. at 56.
Lastly, in Abbati, supra, the court did address the Due Process Clause, but rested its decision on the trial court’s inherent right to dismiss an indictment with prejudice over the prosecutor’s objection.
In Thompson, the defendant’s third trial resulted in a conviction for felony murder after the defendant’s first conviction was reversed and a second trial ended in a mistrial. On appeal, the defendant argued that retrial after a mistrial violated the Double Jeopardy Clause of the Michigan Constitution, art 1, § 15 or the Due Process Clauses of the state and federal constitutions. We held that neither constitutional provision was violated, while observing that “there may be cases in which repeated retrials after repeated jury deadlock might be so fundamentally unfair as to violate the due process guaranteed by Const 1963, art 1, § 17, or the Fourteenth Amendment to the United States Constitution . . . .” Id. at 133.
See People v Cummings, 47 Ill App 3d 578, 581; 362 NE2d 415 (1977) (the number of trials is not a violation of due process unless it also places the defendant in double jeopardy); Ex Parte Anderson, 457 So 2d 446 (Ala, 1984) (the defendant’s due process rights were not breached by a fourth trial on capital murder charges when three earlier trials each resulted in mistrial); State v Paige, 256 NJ Super 362, 370; 607 A2d 164 (1992) (a third trial, where two juries had failed to reach a verdict and where no new evidence was offered against the defendant, did not violate the principles of fundamental fairness). We are not aware of any United States Supreme Court or federal Court of Appeals decision that has held that retrial after a properly declared mistrial where no new evidence is offered violates the federal Due Process Clause.
For an accounting of cases that have held that retrial after a properly declared mistrial did not violate substantive due process guarantees but would violate general principles of “fairness,” see Ingram, supra at 385 (making no reference to the Due Process Clause, the court concluded that the question was simply a matter of fair play); Witt, supra at 917 (after expressly stating that the Due Process Clause was not applicable to the case, the court held that requiring defendants to face juries with the continuing prospect of no verdict offends traditional notions of fair play and substantial justice); United States v Rossoff, 806 F Supp 200, 202 (CD Ill, 1992) (without explicitly relying on the Due Process Clause, the court held that an indictment may be dismissed with prejudice if a court determines that retrial is against the concept of fundamental fairness).
See Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961) (the Fourth Amendment’s exclusionary rule was made applicable to the states), Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (the Sixth Amendment’s right to counsel was made applicable to the states), Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964) (the Fifth Amendment’s privilege against self-incrimination was made applicable to the states), Klopfer v North Carolina, 386 US 213; 87 S Ct 988; 18 L Ed 2d 1 (1967) (made applicable the Sixth Amendment speedy trial right), Washington v Texas, 388 US 14; 87 S Ct 1920; 18 L Ed 2d 1019 (1967) (made applicable the right to compulsory process), Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968) (made applicable the Sixth Amendment right to trial by jury), and Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969) (applied the Double Jeopardy Clause of the Fifth Amendment to the states). For an overview of the rights that have been incorporated and the rationale for incorporation, see Tribe, American Constitutional Law (2d ed), § 11-2, p 772.
The Court held:
Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims. [Graham, supra at 395.]
16 In Collins, the Court rejected the petitioner’s claim under 42 USC 1983 that municipal employees had a right under the Fourteenth Amendment Due Process Clause to be free from unreasonable risks of harm in the workplace. The Court noted its reluctance to expand the doctrine of substantive due process, stating that Congress intended the Due Process Clause to prevent the government from arbitrarily exercising its power, not to guarantee minimal levels of safety and security in the workplace. Id. at 126.
17 See Wells, Constitutional torts, common-law torts, and due process of law, 72 Chi-Kent L R 617, 643 (1997) (the Court in Graham, Albright, and Collins does not propose to abandon substantive due process, only to avoid it whenever possible).
219 Mich App 134.
To support his position defendant relies on Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957), in which the Supreme Court stated:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compel ling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
The rationale of Green is inapposite because Green involved not a case of continuing jeopardy, as is involved here, but rather a case of double jeopardy. Moreover, the Supreme Court expressly recognized that jeopardy does not bar a second trial under circumstances where a jury has failed to reach a verdict, stating:
At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where “unforeseeable circumstances . . . arise during (the first) trial making its completion impossible, such as the failure of a jury to agree on a verdict.”
See also United States v MacDonald, 456 US 1; 102 S Ct 1497; 71 L Ed 2d 696 (1982), in which the Court identified the interests served by the Speedy Trial Clause of the Sixth Amendment. The Court stated:
“Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” . . . The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. . . . Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. [Id. at 8-9.]
We take judicial notice of the facts of People v Fisher, 220 Mich App 133; 559 NW2d 318 (1996), in which the defendant was tried four times before pleading no contest to charges that he murdered his wife. The defendant was twice found guilty of the death of his wife, who was found wrapped with duct tape in their home. Both convictions were overturned. People v Fisher, 439 Mich 884 (1991). In the defendant’s third trial, a mistrial was declared when the jurors were unable to reach a verdict. In a fourth trial, yet another mistrial was declared because of jury deadlock. The defendant entered a plea of no contest as the prosecutors prepared to try the defendant a fifth time. Were the retrial of the respondent in the instant case foreclosed because of substantive due process guarantees, arguably all retrials where two mistrials were previously declared and where no new evidence was offered against the accused would also be foreclosed. | [
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North, J.
These two suits are simultaneously submitted. Plaintiff, Belle Goldman, by her suit seeks recovery for personal injuries suffered when she was struck by one of defendant’s locomotives. Her husband, Irving Goldman, prosecutes his action to recover for his losses, including medical and hospital expenses, loss of wife’s services, and damage to his automobile.
About 5 o’clock in the afternoon of November 29, 1935, Mrs. Goldman was driving east on Caniff street at the boundary line between the city of Detroit and the city of Hamtramek. It was misty and just getting dark, and although the street lights had not yet been lighted, plaintiff, along with some other drivers, had turned on her auto lights. As she approached defendant’s 5-traek grade crossing she slackened her speed, and when she reached the second track her car stalled. Mrs. Goldman testified that while in this position, with her car window open, she attempted to start her car, that she was looking and listening and when she saw a glaring headlight coming toward her she slid over to her right, opened the door, got one foot out and her auto was then struck by the locomotive which was traveling 40 to 50 miles an hour. Her injuries were severe.
Although, the testimony shows that the flasher signals located in the street at either side of the crossing were not operating, under the facts in this case, such failure of operation of the signals was not a proximate cause of the accident. John Czuczko, plaintiffs’ eyewitness, stated that the car stood on the tracks from 5 to 7 minutes. Further, it was pointed out that one situated between the flashers, as Mrs. Goldman was, would not he able to observe the signals even if they were operating properly. While appellants’ brief states there were installed at this crossing “light and bell signals of modern construction,” the uneontradicted testimony of Czuczko on this phase of the case is:
“At the time of this accident there was no electric or other gong in connection with those lights.”
From the point of the accident, the track is straight and approximately level for a long distance either way, at least for a quarter of a mile, and from the record it is to be inferred that the distance is considerably greater than that. As the train approached the crossing, the whistle was not blowing nor was the locomotive bell sounding; however, the headlight on the engine was burning. On direct examination, plaintiffs’ eyewitness testified:
“For several minutes I watched it (the automobile). I was watching to see if a train was going to come and I was looking at the lights and I noticed from the north a headlight coming, a light reflecting from the north. At the time I noticed that the automobile had already stalled on the track and stood there for some time. I watched this light, then about a minute or two I seen the front end of this engine from where I was standing'.
“Q. You say that this automobile stood there then for several minutes?
“A. Yes, it did.
“ Q. When you say ‘ several minutes ’ what do you mean?
“A. About 5 to 7 minutes. * * *
‘ ‘ Q. When you say minutes, you mean 60 seconds to the minute, don’t you?
“A. Yes.
“Q. Do you understand what one minute is, and what five minutes means ?
" A. Ido.
‘ ‘ Q. And the best of your recollection is now that this automobile stood on the track about 5 to 7 minutes?
“A. It did.
“Q. There is no question about that, is there?
“A. No question. * * *
“Q. Again, I am going to ask you, John, when you say two or three minutes, you mean two or three minutes by the clock, that is, 60 seconds in a minute, don’t you?
“A. No, I could not say that, because I did not look at the clock to make sure of that. ’ ’
When cross-examined, this witness stated that from his position he could see only 100 feet along the tracks north.
Defendant offered no proof. The jury returned a verdict for the plaintiff in each of these cases; but on motion for judgments non obstante veredicto, the circuit judge in Mrs. Goldman’s case entered a judgment for the defendant, and in Irving Goldman’s case reduced the jury’s verdict from $1,500 to $400, and entered judgment thereon for plaintiff. The conclusion is unescapable that Mrs. Goldman would also have seen the light of the approaching engine had she been reasonably diligent in observing. It was her duty to maintain a vigilant watch under the circumstances, for she knew that she was in a place of danger. Kraft v. Railway Co., 262 Mich. 494. Notwithstanding she testified that she kept looking and listening, her testimony cannot be given credence when under the circumstances she must have seen the headlight of the approaching locomotive if she had looked. Arnell v. Gordon, 234 Mich. 140.
In this connection it must be borne in mind, as just above stated, that the burden of proving' her freedom from contributory neglig’ence was on Mrs. Goldman. She not only failed to prove that the headlight was not burning as defendant’s locomotive approached this crossing, but the only fair inference to be drawn from the uneontradicted testimony of her eyewitness is that the headlight was burning for a minute or two before Mrs. Goldman observed the approaching train at all. She could have got out of the automobile in the short space of 4 or 5 seconds. She was guilty of contributory negligence because she failed to remove her person from an obvious place of peril notwithstanding she had an opportunity in the exercise of reasonable care to do so.
Although she seeks to distinguish, on its facts, the case of Kraft v. Railway Co., supra, decision therein controls Mrs. Goldman’s case. The accident in the Kraft Case happened at 1 o’clock in the afternoon at which time the plaintiff had a clear vision down the railroad track; while Mrs. Goldman did not have the benefit of daylight, yet, if she had looked, she would have seen the headlight of defendant’s approaching locomotive in ample time to have escaped injury. It is of no consequence that in the Kraft Case the train itself was visible, because in the instant case the headlight was a sufficient warning of the train’s approach. The fact remains that had Mrs. Goldman looked she would have observed the approaching train in ample time to have saved herself from harm.
Although the trial court was in error in presuming compliance with a nonexisting statute, i. e., a statute requiring- defendant to have the headlight lighted, he was correct in entering judgment for defendant as against Mrs. Goldman because, as a matter of law, she was guilty of contributory negligence. The fact that the trial court assigned a wrong reason for a correct result does not affect the disposition of the case in this court. H. H. King Flour Mills Co. v. Bay City Baking Co., 240 Mich. 79.
In reaching the above conclusion in Mrs. Goldman’s Gase, we are mindful she charges that defendant was not only negligent in operating its train at an excessive rate of speed and in neglecting to give proper crossing signals, but that this is also alleged to have constituted gross negligence. Recovery on the theory of gross negligence is not urged in plaintiff’s brief, and such theory may be disposed of by simply noting that it is not tenable under the circumstances of this case. The rate at which defendant’s train approached this crossing, even in conjunction with its failure to give proper crossing signals, was at most only ordinary negligence, so far as disclosed by this record. Morgan v. Railway, 234 Mich. 497; Thompson v. Railway, 110 N. Y. 636 (17 N. E. 690).
As hereinbefore stated, the circuit judge entered judgment in Mr. Goldman’s case for $400, this seeming to be the agreed amount of damage to his automobile; but in so far as the jury’s verdict included expenses of caring for Mrs. Goldman, loss of services, et cetera, these items were disallowed on defendant’s motion non obstante veredicto. Both Mr. Goldman and defendant have appealed from the judgment so entered.
First we are concerned with Mr. Goldman’s right to recover at all. There is evidence of defendant’s negligence. The only question is this: Does the contributory negligence of Mrs. Goldman wholly or only partially bar Mr. Goldman’s right to recover? In so far as his damages are incident to Mrs. Goldman’s personal injuries, her contributory negligence is imputable to him, and bars his right of recovery for these items of damage the same as it bars recovery by her for injuries to her person. But for the reasons hereinafter noted, we think the circuit judge was right in holding that Mr. Goldman could recover for the damage to his automobile.
As noted, there is evidence of defendant’s negligence, particularly in the alleged excessive rate of speed at which this train was passing this crossing, and without giving proper crossing signals. A question of fact was presented as to defendant’s negligence notwithstanding no violation appears of a specific statutory or ordinance regulation. Chicago, St. L. & P. R. Co. v. Spilker, 134 Ind. 380 (33 N. E. 280, 34 N. E. 218). There is no testimony of negligence in the manner in which or the circumstances under which this automobile was driven upon defendant’s tracks and there stalled. Nor is there any testimony of lack of effort to remove the automobile from its place of danger. In this particular Mrs. Goldman did all she possibly could. While it was within her power to have removed her person to a place of safety, she was wholly powerless to remove the automobile. If by the exercise of care she had saved herself from injury, nonetheless under the circumstances of this case it is evident that the automobile would have been damaged. It follows that Mrs. Goldman was not guilty of any contributory negligence in not getting the automobile off defendant’s track before it was struck.
The minimization of Mr. Goldman’s damage to $400 was correct, and his damage to this amount was properly allowed notwithstanding defendant’s contention that Mrs. Goldman’s contributory negligence should be held totally to bar recovery by Mr. Goldman. The judgments entered in the circuit court are affirmed. The defendant will have costs in Mrs. Goldman’s case; but in Mr. Goldman’s case neither party will have costs.
Butzel, C. J., and Wiest, Bushnell, Sharpe, Potter, Chandler, and McAllister, JJ., concurred. | [
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McAllister, J.
Plaintiff brought an action for damages resulting* from injuries sustained when, as she alleges, while a passenger on defendant’s motor-bus, defendant’s driver jerked open the door and suddenly set the bus in motion, causing plaintiff to be thrown from the platform of the bus into the street.
Plaintiff boarded the bus in the city of Birmingham and rode to Detroit. When she arrived at her destination, plaintiff left her seat at the rear of the bus and walked forward where the driver was sitting. She engaged in conversation with him, telling him that she had put too much money in the fare box at Birmingham, and testified that he smiled, and said: “Yes, I noticed you did, * * * I guess you got your money’s worth.” Plaintiff says that she then requested a “slip” in order to secure reimbursement. Suddenly, according to her testimony, the driver became very angry, his face became “red as a beet,” and in a loud voice he said to her: “Get off the bus, I can’t keep the bus standing waiting on you all day, ’ ’ at the same time causing the door to be jerked open and the bus to be moved ahead, resulting in her fall down the bus steps and onto the street.
Defendant’s driver testified that there was some conversation in which plaintiff stated in a joking way that she had paid a dime too much and that he had asked her in the same humor whether she hadn’t gotten her money’s worth. He testified that he told her with reference to the slip that if she had mentioned it when she dropped the money in the box he would have refunded it, but that such practice was not followed when not brought to the driver’s attention until the destination was reached. He stated that he had not known she had overpaid her fare. He further testified that the bus was brought to a complete stop and that three people got off — a man first, the plaintiff next, and another woman last — •, and that as the bus was standing with the door open, he watched all three leave and walk away from the bus. He claims that the bus did not move from the time it first stopped until the three passengers had descended. After the last passenger left, defendant’s driver testified that he heard her say: “What are you all doing, falling after you get off the bus?” The passenger in question testified that while all three were inside the bus, there was a jerk and she saw plaintiff falling* and said: ‘ ‘What are you doing*, falling*?”
Another passenger testified she heard the conversation between plaintiff and driver and that they did not seem to be angry but appeared to be in very good humor. When this witness heard the other passenger ask why someone was falling, she turned and observed plaintiff lying* on the sidewalk a foot or so from the curb. A policeman appeared on the scene and plaintiff told him that she hurt her foot alighting* from the bus, but did not say that she had been thrown off; nor did the two passengers who descended with her and who were present when the policeman arrived, and afterward testified for plaintiff in confirmation of her story, mention such claim. The policeman testified that he asked them if the bus was stopped when she alighted, and plaintiff and the two passengers who left the bus with her stated that they didn’t know.
The case was tried before the court without a jury. The court believed the testimony of defendant’s driver and the other passenger who testified for defendant, and was also impressed with the fact that neither the plaintiff, nor the two passengers who appeared as witnesses for her, mentioned to the police officer that she had been thrown off the bus by the wrongful conduct of defendant’s driver. On this conflicting testimony the court found for defendant. Plaintiff appeals on the ground that the judgment was against the great weight of evidence and that there was a total want of evidence to support the judgment; and on appeal seeks to have this court weigh the evidence to ascertain whether or not it preponderates in favor of plaintiff. Counsel contends that, on appeal in law cases tried before the court without a jury, the review in the Supreme Court is a trial de novo.
Much confusion on this question has been engendered because of changes in court -rules, decisions based upon the various rules, new and substituted rules, and difficulties arising from the distinctions between the function of a writ of error and an appeal. An erroneous impression often arises because of the ambiguity resulting from the use of the term, appeal, in its general sense, as contrasted with its more narrow and technical meaning.
By the English common law the judgments of the court of common pleas and of all inferior courts were brought under the review of the court of king’s bench for revision and correction, by writ of error, writ of certiorari, or writ of false judgment. The remedy of appeal, unknown to the common law, was - employed for the review of causes in equity, ecclesiastical and admiralty jurisdictions. Ex parte Henderson, 6 Fla. 279; Wingfield v. Neall, 60 W. Va. 106 (54 S. E. 47, 10 L. R. A. [N. S.] 443, 116 Am. St. Rep. 882, 9 Ann. Cas. 982).
The writ of error, being of common-law origin, was adopted in the United States as it existed under the common-law system. Buesscl v. U. S., 170 C. C. A. 105 (258 Fed. 811); Lee v. Fowler, 263 Mass. 440 (161 N. E. 910). Where not abolished by statute, it exists as an available remedy. Phelps v. Board of Appeals of the City of Chicago, 325 Ill. 625 (156 N. E. 826). At common law and generally under the constitutions and statutes, a writ of error is a writ of right in proceedings prosecuted according to the course of the common law, grantable ex debito justifies. It issues as of coursé upon the filing of a formal application therefor, as on petition or prsecipe, and may be obtained by any person entitled to it in the same way as he may, upon the compliance with the prescribed requirements, sue out a summons in an ordinary action. 4 C. J. S. p. 71. See Freeport Motor Casualty Co. v. Madden, 354 Ill. 486 (188 N. E. 415); City of Moberly v. Lotter, 266 Mo. 457 (181 S. W. 991); Hull v. Denver Tramway Corp., 97 Col. 523 (50 Pac. [2d] 791); Ridgley v. Bennett, 13 Lea (81 Tenn.), 206. It may be sued out in all cases where it is applicable, and is issuable subject to such constitutional regulations as may be prescribed by the legislature. Harrison v. Tradee, 27 Ark. 59; McClay v. Norris, 9 Ill. 370; Ridgley v. Bennett, supra.
By the weight Of authority, the suing’ out of a writ of error constitutes the commencement of a new suit, and not a continuation of the suit to which it relates. Ex parte Williams, 226 Ala. 619 (148 South. 323); Thornton v. Schobe, 79 Col. 25 (243 Pac. 617); Eich v. Czervonko, 330 Ill. 455 (161 N. E. 864); State, ex rel. City of Duluth, v. Railway Co., 99 Minn. 280 (109 N. W. 238, 110 N. W. 975); although it is not an original suit to the extent that new issues of fact may be framed in the appellate court. Bocock v. Leet, 210 Ill. App. 402. An assignment of errors is in the nature of a declaration both at common law and under the modern statutes and in some jurisdictions it is termed the complaint in the reviewing court. Trenton Banking Co. v. Rittenhouse, 96 N. J. Law, 450 (115 Atl. 443, 36 A. L. R. 343); Whitsell v. Strickler, 167 Ind. 602 (78 N. E. 845, 119 Am. St. Rep. 524).
The purpose of the writ is to inspect the record in the lower court, and it brings up only questions of law. Paterie v. Davignon, 38 R. I. 585 (96 Atl. 819). The writ does not bring up for review errors of fact. Buessel v. United States, supra; Nashville Railway & Light Co. v. Bunn, 94 C. C. A. 274 (168 Fed. 862); Hanzes v. Flavio, 234 Mass. 320 (125 N. E. 612); Wingfield v. Neall, supra, and it is not used for the purpose of trying the issues between the parties, but to try the judgment of the lower court. Orange Belt Packing Co. v. International Agricultural Corp., 112 Fla. 99 (150 South. 264); McKinnon v. Lewis, 60 Fla. 125 (53 South. 940); Bocock v. Leet, supra. A writ of error issued to a lower court removes the whole record into the appellate court. It does not act upon the parties but only upon the record. Scott v. Sanford, 19 How. (60 U. S.) 393; Cohens v. Virginia, 6 Wheat. (19 U. S.) 264.
However, it is important to bear in mind that while the writ of error brings up for review only errors of law, and not of fact, a finding of fact may in itself be an error in law. Styles v. Tyler, 64 Conn. 432 (30 Atl. 165); Fernald v. Bush, 131 Mass. 591; The E. A. Packer, 140 U. S. 360 (11 Sup. Ct. 794); Bedlow v. New York Floating Dry Dock Co., 112 N. Y. 263 (19 N. E. 800, 2 L. R. A. 629); Kennedy v. Porter, 109 N. Y. 526 (17 N. E. 426).
Where the power to issue a writ of error is vested in a court by the Constitution, it cannot be abolished by the legislature. Harrison v. Tradee, supra; Martin v. Simpkins, 20 Col. 438 (38 Pac. 1092). If the right to appellate review is given or secured by the Constitution, it cannot be taken away or impaired by the legislature nor can the legislature confer appellate jurisdiction in conflict with constitutional provisions. Gambold v. MacLean, 254 N. Y. 357 (173 N. E. 220). Matters relating to appellate procedure are, in general, within the authority of the legislature, unless withheld therefrom by constitutional provision, but it may not control the discretion of the courts in regard to matters which have been entrusted to them by the Constitution. See Herndon v. Imperial Fire Ins. Co., 111 N. C. 384 (16 S. E. 465, 18 L. R. A. 547). While the writ of error does not owe its origin to any statute, since it is a writ of right under the common-law system, it is within the control of the legislature except where guaranteed by constitutional provision as it is in some states. 2 Am. Jur. p. 848. When a constitutional provision prescribes a particular mode of review, it is not within the power of the legislature to provide a different remedy, and regulations in conflict with the Constitution are invalid. Woodward Iron Co. v. Bradford, 206 Ala. 447 (90 South. 803). That clause in the Federal Constitution giving the supreme court of the United States original jurisdiction in a class of cases specified, and appellate jurisdiction in all others is self-executing; and an act of congress purporting to give that court original jurisdiction in cases other than those so specified is invalid. Marbury v. Madison, 1 Cranch (5 U. S.), 137, 173, 177.
An appeal, on the other hand, as distinct from a writ of error, means a proceeding for review by which the entire case is transferred to the appellate court for a trial de novo, and for a final defermination, independent of the lower court. Wingfield v. Neall, supra; Wiseart v. Dauchy, 3 Dallas (3 U. S.), 321. Procedure by appeal in the technical and limited sense of the term is of civil-law origin and was entirely unknown to the common law. It was introduced from the civil law into courts of equity. Ritzer v. Ritzer, 243 Mich. 406. The remedy by appeal is statutory in origin. J. F. Harts Co. v, Lukaszcewski, 200 Mich. 230; Munroe, Boyce & Co. v. Ward, 207 Mich. 369; Walsh v. Kent Circuit Judge, 225 Mich. 51; Echlin v. Canvasser, 239 Mich. 116. The courts have no inherent authority with respect thereto. Zagerman v. Fenning, 9 N. J. Misc. 997 (156 Atl. 422). Such proceedings as those in prohate are entirely dependent upon statute, and are subject to the control of the legislature, which may, in its discretion, grant or abolish the remedy, or prescribe upon what terms appeals may be taken. Newell v. Kalamazoo Circuit Judge, 215 Mich. 153.
“An appeal is a process of civil-law origin, and removes a cause entirely; subjecting the fact as well as the law, to a review and retrial: but a writ of error is a process of common-law origin, and it removes nothing for reexamination but the law.” Wiscart v. Dauchy, supra, 327.
At common law and in those jurisdictions where the distinction is still preserved, a writ of error brings up only questions of law, which are apparent on the record, while an appeal unless expressly restricted brings up both law and fact. Elliott v. Toeppner, 187 U. S. 327 (23 Sup. Ct. 133); Parsons v. Armor, 3 Pet. (28 U. S.) 413.
But the term, appeal, may also refer to any review of a case that has been tried and may be used to designate any proceeding for review by which a case is transmitted from one tribunal to another. Dow v. Casey, 194 Mass. 48 (79 N. E. 810).
According to our State Constitution, the Supreme Court shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it has appellate jurisdiction only. Const, of 1908, art. 7, § 4. This. Court, therefore, has original juris diction in eases re viewable by writ of error, and the writ is a constitutional writ. 3 Comp. Laws 1929, § 13604 (Stat. Ann. § 27.111), provides:
‘ ‘ The Supreme Court may, by general rules, provide simplified forms, methods, and procedure by which such Court and other courts of record shall exercise the appellate jurisdiction conferred upon them by law, and such rules, while in force, shall be controlling, any statutory provision to the contrary notwithstanding: Provided, That no right to a review conferred or preserved by the Constitution of this State shall thereby be denied or diminished. ’ ’
While courts are very generally authorized by statute to make their own rules for the regulation of their practice and the conduct of their business, a court has, even in the absence of any statutory provision or regulation in reference thereto, inherent power to make such rules. Fullerton v. Bank of the United States, 1 Pet. (26 U. S.) 604; Van Benschoten v. Fales, 126 Mich. 176; Wyandotte Rolling Mills Co. v. Robinson, 34 Mich. 428. This power is, however, not absolute but subject to limitations based on reasonableness and conformity to constitutional and statutory provisions. Ward v. Chamberlain, 2 Black (67 U. S.), 430; Youngs v. Peters, 118 Mich. 45. Thus a court cannot make and enforce rules which are arbitrary or unreasonable or uncertain in their operation, which deprive a party of his legal rights or which contravene any constitutional or statutory provision. Youngs v. Peters, supra; Ismond v. Scougale, 119 Mich. 501. The jurisdiction of a court as conferred by the Constitution cannot be enlarged or diminished by a rule of court. The St. Lawrence, 1 Black (66 U. S.), 522.
In this State, in all cases in which review by the Supreme Court is provided by law, and notwithstanding the writ or remedy of review employed by common law or named in statute, review may be had by appeal under the Michigan court rules. But this refers only to the method of review, and does not restrict, enlarge or change the right or scope of review provided by law, except as is explicitly set out in the said rules. Court Buie No. 55 (1933).
When used to indicate any proceedings for review, appeal may comprehend a writ of error. Chickamauga Quarry & Construction Co. v. Pundt, 136 Term. 328 (189 S. W. 686); Martin v. Martin (Tex. Civ. App.), 229 S. W. 695.
The removal of a cause from a trial court to an appellate court by writ of error is a method of appeal. White v. Taylor (Tex. Civ. App.), 11 S. W. (2d) 374. Where a statute provides that all appellate proceedings in the Supreme Court previously taken by writ of error, appeal or certiorari should thereafter be taken in a proceeding to be called an appeal, it was held that the statute did not change the existing right of review, nor modify in any way its exercise, but only provided that dissimilar proceedings should be called by the same name. Revocation of Mark’s License, 115 Pa. Super. 256 (176 Atl. 254).
Beview of final judgment in cases brought according to the course of the common law is by writ of error. 3 Comp. Laws 1929, § 15491 (Stat. Ann. §27.2591). And it is clear not only by the great weight of authority, but also by the explicit language of the court rule and statute above mentioned that, although this method of review may be designated an appeal, such appeal does not enlarge or change the right or scope of review as heretofore existing by writ of error which brings up the record for review of errors of law and not of fact.
“Upon appeal to the Supreme Court from a judgment in an action at law tried without a jury, such judgment may be affirmed or reversed, tbe cause remanded with directions, or a new trial ordered.” Court Rule No. 64 (1933).
We do not enter judgments in law cases on appeal, and in such cases tried before the court without a jury, we do not hear the case de novo.
In such appeals, appellant may assign as error that the judgment is against the preponderance of the evidence. Court Rule No. 64 (1933).
Preponderance of evidence is properly defined as:
“ ‘Such evidence as, when weighed with that which is offered to oppose it, has more convincing power in the minds of the jury. It is not a technical term at all, but means simply that evidence which outweighs that which is offered to oppose it. It does not necessarily mean that a greater number of witnesses shall be produced .on the one side or the other, but that, upon the whole evidence, the jury believe the greater probability of the truth to be upon the side of the party having the affirmative of the issue.’ * * * If the evidence of the plaintiff is more probable than that of the defendant, it certainly outweighs it, and, if it outweighs it, the preponderance is with the plaintiff.” Strand v. Railway Co., 67 Mich. 380, 385 (4 Am. Neg. Cas. 70).
‘‘ The law permits the trier of the facts a wide discretion in determining what those facts are. We do not substitute our judgment on questions of fact unless they clearly preponderate in the opposite direction.” Leonard v. Hey, 269 Mich. 491 (37 N. C. C. A. 111).
In Hamburger v. Bank of Detroit, 218 Mich. 173, 175, this court said:
“As we have had occasion to point out many times, we are not the triers of the facts in cases on the law side of the court brought to this court for re view. If we are satisfied that the findings of the trial judge are against the clear weight of the evidence, we are authorized to reverse under 3 Comp. Laws 1915, § 12587. But we do not hear law cases de novo.”
In Olchefsky v. Mercier, Bryant, Larkins Brick Co., 240 Mich. 536, 541, it was said:
“It is also urged that the testimony offered hy defendant on the question of proper installation and operation of the furnaces was of greater probative force than that offered by plaintiff. If we were the triers of the facts we might not find difficulty in agreeing with some or all of defendant’s contentions as to what the facts were. But this is not the measure of either our power or our duty. In the recent case of Lewis v. Whitney, 238 Mich. 74, in considering this question, it was said:
“ 'The power to ultimately set aside verdicts and judgments on this ground has been wisely committed to this court, and when and as the occasion arises must be exercised by us. But this does not make us the original triers of the facts or require us to hear eases on the law side de novo. It is not sufficient that we would have reached a different result had we been members of the jury. The verdict must be against the clear weight of the evidence, against the overwhelming weight of the evidence, it is sometimes said; manifestly against the weight of the evidence, it is also said. These are the standards set by former decisions of this court too numerous to cite.’ ”
“The rule is well settled that this court will only reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence. The verdict must be clearly against the great weight of the evidence, to require this court to overrule the decision of the circuit judge refusing a new trial.’’ Gardiner v. Courtright, 165 Mich. 54.
‘ ‘ The record on this appeal is such that if the case had been tried by a jury we would necessarily find- testimony sustaining a verdict in favor of plaintiff on both tbe question of negligence and contributory negligence. Our review of tbe testimony satisfies us tbat it sustains tbe bolding of tbe trial judge on botb these questions.” Jacoby v. Schafsnitz, 270 Mich. 515.
It is said in 5 C. J. S. pp. 742-745, 748, § 1658:
“Tbe appellate court, in passing on tbe fact findings of tbe trial court, ordinarily gives regard only to tbe sufficiency of tbe evidence to support tbe findings and will not concern itself with tbe weight or preponderance of tbe evidence, for * * * tbe weight to be given to tbe evidence and tbe credibility of tbe witnesses are matters within tbe province of tbe trial court. Hence, tbe mere fact tbat tbe findings may appear to tbe appellate court to be against tbe weight or preponderance of tbe evidence will not cause them to be disturbed if they are supported by substantial, or legally sufficient, evidence, and not clearly, manifestly, or palpably against tbe great weight of tbe evidence, indicate mistake, prejudice or improper influence, or are so clearly wrong tbat a trial judge would have set aside a similar verdict rendered on tbe same testimony.”
Although the appellate court might have reached a different conclusion, it will not disturb the finding if it cannot say that a reasonable man could not have reasonably reached the conclusions reached by the trial court. Taylor v. Bunnell, 133 Cal. App. 177 (23 Pac. [2d] 1062).
In tbe instant case, review is sought of a proceeding prosecuted according to tbe course of tbe common law and such review is, according to tbe jurisdiction conferred on tbe Supreme Court by tbe Constitution, a review by writ of error. Tbe fact tbat such remedy of review is, for convenience, designated as an appeal is merely a matter of nomenclature, and does not, thereby, enlarge or restrict tbe ordinary and historical function of a writ of error in such case; nor is it intended by court rule so to do. Rather, it is set forth both in the court rule and statute relevant thereto, that the right or scope of review provided by law is not restricted, enlarged, or changed by calling the method of such review, an appeal. Court Rule No. 55 (1933), 3 Comp. Laws 1929, § 13604 (Stat. Ann. § 27.111).
Such review by writ of error, bringing up the record for inspection as to errors of law, does not authorize or enable this court to weigh the evidence, and try again — de novo — questions of fact. Any rule of court or legislative enactment to this effect, changing the function of a writ of error to that of a chancery appeal and, in effect, abolishing such writ, the office of which is clearly defined and understood, would be unconstitutional. We have held, similarly, that statutory provisions purporting to provide for review in the Supreme Court of questions of fact on certiorari are unconstitutional, as such writ, as in the case of a writ of error, brings up for review only questions of law. In re Consolidated Freight Co., 265 Mich. 340 (4 P. U. R. [N. S.] 397).
Whatever may appear to be the advisability or desirability of reviewing jury or nonjury law cases in the same manner as is provided for in appeals in equity, we are confronted with the fact that in this State the writ of error is riveted to our Constitution and siich proposed changes can be brought about by no means short of Constitutional amendment.
Plaintiff, in seeking to have this court weigh the evidence, on the theory that on review we hear the cause de novo, calls our attention to Bugbee v. Fowle, 211 Mich. 485, where it was said:
“There is conflict of testimony on the controlling issues of defendant’s negligence and plaintiff’s con- tributary negligence. In reviewing law cases tried without a jury, we are not bound by the finding of fact made by the trial court but consider the record as a whole. Burchard v. Otis Elevator Co., 261 Mich. 142; Court Rule No. 64 (1933).”
However, the Bur chard Case decided in 1933 was not based upon Court Rule No. 64 (1933) but upon Court Rule No. 75 (1931). In that case it was said:
“Michigan Court Rule No. 75 (1931) reads:
“ ‘Upon appeal from a judgment rendered in an action at law tried without a jury, such judgment may be affirmed, reviewed or modified, in whole or in part, and a final judgment shall be entered either by the Supreme Court or by the trial court, according to the practice in equity cases.’
“Under this rule on review of a nonjury law case, this court is not bound by the findings or lack of findings of the trial court. Instead, the record as a whole is considered and determination made of such questions raised by the appeal as are necessary to decision.” Burchard v. Otis Elevator Co., supra.
The question of the unconstitutionality of Court Rule No. 75 (1931), providing for review of law cases according to the practice in equity cases, appears never to have been raised in any adjudicated cases, or otherwise brought to the attention of the court.
It is true that Mr. Justice Potter, in Valentine v. Malone, 269 Mich. 619 (97 A. L. R. 326), in the course of an extensive dissenting opinion, discussed the unconstitutionality of statutes conferring original jurisdiction upon the Supreme Court or diminishing such original jurisdiction; and in the course of his opinion discussed Court Rule No. 64 (1933). But Court Rule No. 75 (1931), providing for the entry of judgments “according to the practice in equity cases,” was not discussed. In view of the fact that the contention of counsel for plaintiff is based largely upon Ms interpretation of Court Eule No. 64 (1933), and cases determined upon the authority of said rule, it is necessary to discuss such claim.
In 1933, Court Eule No. 75 (1931) was changed and Court Eule No. 64 (1933) was substituted therefor as follows:
“Upon appeal to the Supreme Court from a judgment in an action at law tried without a jury, such judgment may be affirmed or reversed, the cause remanded with directions, or a new trial ordered. Appellant may assign as error that the judgment is against the preponderance of the evidence; but on appeals in civil cases, error cannot be assigned for total lack of evidence on a material question unless such lack of evidence has been called to the attention of the court during the trial or on motion for a new trial.”
Thereafter in Fyan v. McNutt, 266 Mich. 406, 411, the court said:
“Appellant relies in part on Michigan Court Eule No. 64 (1933). We recently held:
“ 'Under this rule, on review of a nonjury law ease, this court is not bound by the findings or lack of findings of the trial court. Instead the record as a whole is considered and determination made of such questions raised by the appeal as are necessary to decision.’ Burchard v. Otis Elevator Co., 261 Mich. 142.”
The above citation of the Burchard, Case decided in January, 1933, was based on Court Eule No. 75 (1931) and not upon Court Eule No. 64 (1933), which had thereafter been substituted therefor.
Burchard v. Otis Elevator Co., supra; Fyan v. McNutt, supra; and Bugbee v. Fowle, supra, relying for authority on Court Eule No. 75 (1931) which has since been abrogated, are not authority for review under the present Court Eule No. 64 (1933); and are not to be considered authority implying that review of actions at law shall follow the practice in equity cases with regard to the weighing of evidence by the appellate court and a trial de novo on review.
The confusion resulting in plaintiff’s contention is perhaps explicable by a reference to the Court Rules of 1931. In the note to Court Rule No. 75 of the authorized edition of such rules, there is, in a footnote, reference made to Court Rule No. 37, § 11 (1931); and in a note appended to the latter rule, it is stated:
“The trial of a law case without a jury involves exactly the same essential procedure as the trial of an equity case, and the functions performed by the court are practically identical in both cases. There is no substantial reason why both should not be tried in the same manner and be finally disposed of in the same way. The only feature of a common-law action which ever made necessary a different procedure from that in equity, was the jury, and when the jury is absent the sole reason for diversity in practice disappears.
“The legislature, in dealing with the provision of Constitution giving rule-making power to the Supreme Court, has particularly requested the court, and has declared it to be its duty, ‘by general rules to establish, and from time to time thereafter to modify and amend, the practice in such court, and in all other courts of record * * * with the view to the attainment, so far as may be practicable, of the following improvements in the practice: (1) The abolishing of distinctions between law and equity proceedings, as far as practicable.’ 3 Comp. Laws 1915, § 12019 (3 Comp. Laws 1929, § 13540 [Stat. Ann. § 27.34]).
“The profession has never found any difficulty in ' dealing with equity cases without special findings, and when no jury is employed nothing but the accidents of historical development differentiates a case at law from a case in equity. A uniform method of dealing with the two under such circumstances would be a great practical advantage, and as between the two methods, the simpler and less technical method of equity should obviously be chosen.
“No findings of fact or law are required or allowed under the English statutes and rules.”
The fact is that there is a substantial reason why law and equity cases in Michigan are not to be disposed of on review in the same way, and that is because our Constitution provides for review by writ of error, and in review by writ of error or by appeal in the nature of a writ of error, the reviewing court cannot weigh the evidence or try the cause de novo. As for the procedure under English statutes mentioned in the note referred to, writs of error have been abolished in England. 15 & 16 Yict. chap. 76, § 148. See 13 Halsbury’s Statutes of England, p. 144. And, therefore, there is no reason, in England why review of law cases cannot be had in the manner of appeals in chancery.
We do not ignore the fact that leaders of the profession interested in procedural reform urge that review of law cases be according to the method of chancery appeal, and, in this regard, we do not overlook the recent report of the Committee on Simplification and Improvement of Appellate Practice of the Section of Judicial Administration of the American Bar Association, § 18 (1938), wherein it is said:
‘ ‘ The problems involved in the review of nonjury cases are essentially the same whether such cases are legal or equitable in their nature. In each type of case questions of fact are decided by the trial judge in the same way, and there is no constitutional reason why there should be any difference in regard to the conclusiveness of the decision. If questions of fact are to be reviewed on appeal in equity cases, every reason in support of such a review applies with equal force to the review of facts in law cases tried without a jury. On the other hand, if the decision of the trial court on questions of fact is to be deemed conclusive on appeal in law eases tried by the court, the same result should follow in equity cases. In other words, it is not the distinction between law and equity which should produce differences in the mode of trial or review, but the distinction between jury and nonjury determination of questions of fact. This principle has been embodied in the new Federal rules.”
Such proposed method of review however, requires reference again to the fact that the writ of error is a constitutional writ in this State. As for the persuasive statement that the suggested principle is now embodied in the new Federal rules, it may be remarked that writs of error are not provided for in the Federal Constitution, and have been abolished by Federal statutory enactment. 45 Stat. at L. 54, chap. 14, § 1 (January 31, 1928, 28 U. S. C. A. § 861a).
While the Constitution confers a general superintending power upon the Supreme Court over all inferior courts (Const. 1908, art. 7, §4), nevertheless, it explicitly provides that the Supreme Court shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same, and that in all other cases it shall have appellate jurisdiction only.
With regard to the nature of the general supervisory control conferred by the Constitution upon the Supreme Court, it is stated in 15 C. J. p. 1026, as follows:
“The Supreme Court must exercise directly conferred power in a constitutional manner, even though no rule of procedure applicable to the particular case is prescribed by statute. The supervisory powers of an appellate court are usually called into exercise by an appeal or writ of error, bill of review, or writ of certiorari, but it has been held that a general supervisory control conferred by the Constitution is a distinct power, and may be exercised to control an inferior court in respect to an act from which no appeal would lie, and for which the writs appertaining to the appellate jurisdiction furnish no remedy, although it will not be exercised when other and ordinary remedies are sufficient, or except in. case of an exigency of such an extreme nature as obviously should justify the interposition of the power. ’ ’
It would seem, therefore, that there is nothing in such supervisory control which would enable this court to change the function of review by writ of error to a review according to the practice in equity cases.
While the Supreme Court is vested by the Constitution with authority to regulate procedure and practice, nevertheless the rule-making powers of the Court do not extend to matters of jurisdiction and cannot be used to give new remedies or extend or curtail existing ones provided by the Constitution.
“The jurisdiction of a court as conferred by the Constitution or statute cannot be enlarged or diminished by a rule of court. * * *
“Rules of practice and procedure adopted under a practice act are strictly limited to carrying legislation into effect and cannot give new remedies or extend or curtail existing ones.” 15 C. J. p. 907.
“Preponderance of the evidence” and “clear preponderance of the evidence” have quite definite "and different meanings, according to the adjudicated cases.
“In civil cases, a preponderance of evidence is all that is required, and by a ‘preponderance of evidence ’ is meant such evidence as, when weighed with that opposed to it, has more convincing force and from which it results that the greater probability is. in favor of the party upon whom the burden rests.” Hoffman v. Loud, 111 Mich. 156.
It is the trier of facts who determines whether evidence when weighed with that opposed to it has the more convincing force. The reviewing court cannot on an appeal in a law case decide the cause on the issues of which evidence has the more com vincing force. That is a question of fact.
If, however, the judgment is against the clear preponderance of evidence, the question becomes one of law; such a judgment will be reviewed where it is clearly, manifestly, or palpably against the great weight of evidence. 5 C. J. 8. pp. 742-749, § 1658.
If considered solely as an alternative of phrasing, the difference between “preponderance of the evidence,” and “clear preponderance of the evidence” might seem to justify a criticism of too fine a verbal distinction. Nevertheless, these terms have an entirely different legal signification, and such distinctions have been generally and emphatically recognized in adjudicated cases of most jurisdictions — the first being the term governing determinations of fact on the trial of law cases and on review of chancery appeals; the other raising questions of law, on review by writ of error.
Under Court Rule No. 64 (1933), appellant may assign error that the judgment is against the preponderance of the evidence. But it is only if such an assignment be treated by this court as raising the question of whether the judgment is against the clear “preponderance of the evidence,” as that term is understood in law, that the rule can be held compliant to the Constitution.
On review of law cases, tried without a jury, we do not either retry the issues between the parties, or weigh the evidence to determine which preponderates or has the more convincing force; nor do we hear such causes de novo, nor determine them according to the practice in equity cases. Unless the verdict or judgment is against the clear preponderance of the evidence, it is not disturbed on appeal.
In the instant case, the testimony was in conflict. But the credibility of the witnesses and the weight of the evidence were for the trial court, and on review of the record, the judgment cannot be said to be against the clear preponderance of the evidence.
Judgment affirmed, with costs to defendant.
Potter, J., concurred in the result.
North, J. I am in full accord with the result reached by Mr. Justice McAllister on the merits of the instant case. However, notwithstanding it is not necessary to decision, he has written at length concerning the power of this court under Court Buie No. 64 (1933) to review in the manner provided in the rule determinations of controverted issues of fact on appeal in nonjury law cases. His conclusion, as I understand, is that, in so far as the rule provides that this court upon such appeals may review issues of fact for the purpose of ascertaining whether the determination of the lower court was against the preponderance of the evidence, it is unconstitutional. With such conclusion I disagree.
In his opinion, my Brother states that the plaintiff “on appeal seeks to have this court weigh the evi deuce to ascertain whether or not it preponderates in favor of plaintiff. Counsel contends that, on appeal in law cases tried before the court without a jury, the review in the Supreme Court is a trial de novo.” My Brother concludes:
“On review of law cases tried without a jury, we do not either retry the issues between the parties, or weigh the evidence to determine which preponderates or has the more convincing force; nor do we hear such causes de novo, nor determine them according to the practice in equity cases. Unless the verdict or judgment is against the clear preponderance of the evidence, it is not disturbed on appeal. ’ ’
How can this court determine that the judgment of the trial court is or is not ‘' against the clear preponderance of the evidence,” unless this court weighs the evidence as presented to it in the record on appeal? If my Brother’s opinion could be construed to be limited by the sentence last above quoted, I could subscribe to the result reached; but unfortunately many statements in his opinion seem to me to go far beyond this limitation. In this connection he says:
“And it is clear * * * that, although this method of review (by writ of error) may be designated an appeal, such appeal does not enlarge or change the, right or scope of review as heretofore existing by writ of error which brings up the record for review of errors of law and not of fact. ’ ’
Clearly the above conclusion cannot be sustained if under our Constitution this court has the power to regulate its practice and procedure in the manner provided in Court Rule No. 64 (1933). The pertinent portion of the rule reads:
“Upon appeal to the Supreme Court from a judgment in an action at law tried without a jury, such judgment may be affirmed or reversed, tbe cause remanded with directions, or a new trial ordered. Appellant may assign as error that the judgment is against the preponderance of the evidence. ’ ’
The issue is whether this court under the Constitution has the power to promulgate such a rule. If it has, then on appeal from a judgment in a nonjury law case, if such judgment is challenged in that particular, it is the duty of this court to determine whether “the judgment is against the preponderance of the evidence. ’ ’
The relevant provisions of the Constitution of 1908 are found in article 7. They contain the following :
“ Section 1. The judicial power shall be vested in one Supreme Court, circuit courts, probate courts, justices of the peace and such other courts of civil and criminal jurisdiction * * * as the legislature may establish. * * *
‘' Sec. 4. The Supreme Court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo loarranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.
“Sec. 5. The Supreme Court shall by general rules establish, modify and amend the practice in such court and in all other courts of record, and simplify the same.
Under the above constitutional provisions all judicial power is vested in the Supreme Court and other inferior courts (art. 7, § 1) over which the Supreme Court has supervision and control (art. 7, §4). With judicial power thus vested by the Constitution, it seems too clear for argument that the power to regulate procedure is inherently vested in the Su preme Court, to be exercised under its rule-making powers. Tbe express provision of tbe Constitution is:
‘ ‘ The Supreme Court shall by general rules establish, modify and amend the practice in such court and in all other courts of record, and simplify the same.” (Article 7, § 5.)
In reviewing determination of controverted issues of fact in non jury law cases under Court Rule No. 64 (1933), we still act only as an appellate court. This we do under the constitutional provision: “In all other cases it (the Supreme Court) shall have appellate jurisdiction only. ’ ’ Article 7, § 4. For the purpose of exercising its powers as an appellate court, this court may inaugurate and utilize any appropriate writ or procedure as in its judgment may be deemed fit. Otherwise its plenary power granted by the Constitution to superintend and control inferior courts is restricted and does not measure 'up to its full constitutional investment of judicial and supervisory powers. "While the Constitution provides by enumeration certain original writs which the Supreme Court has power to issue, it is worthy of note that this provision is not restricted, because the Constitution expressly gives this court power to issue ‘ ‘ other original and remedial writs, and to hear and determine the same. ’ ’ But as just above noted, Court Rule No. 64 (1933) pertains solely and only to appellate procedure in the Supreme Court; and article 7, § 4, of the Constitution vests this court with plenary, supervisory and appellate powers, and section 5 gives it rule-making power to enable it to function. No provision can be found in the Constitution which forbids review in law cases by this court by appeal. This is true because the proceeding is wholly appellate, not original, and does not involve the issuance of an original writ. But, assuming ¿that issuance of an original writ were required on such appeals, this court by express constitutional provision is empowered to issue “other original and remedial writs.”
Even if we were to concede that a review of law cases in this court is confined to the same character of review formerly obtainable by writ of error, still it does not follow that issues of fact cannot be reviewed in law cases under the court rule providing for such practice. Even when appeal in law cases was by the common-law writ of error, the long-established practice in this jurisdiction permitted review of testimony as to essential facts, if under such writ of error there was an assignment that the finding or judgment of the court was contrary to the clear or overwhelming weight of evidence. 3 Comp. Laws 1929, § 11266 (Stat. Ann. § 27.995); Kotzke v. Kotzke’s Estate, 205 Mich. 181; Hamburger v. Bank of Detroit, 218 Mich. 173. Under Court Rule No. 61 (1933) in its review on appeal in nonjury law cases this court does nothing more nor less than to determine whether “the judgment is against the preponderance of the evidence,” in event such an assignment of error is urged. It is difficult to conceive how this practice under the rule upon appeal differs materially from the former practice of this court upon issuance of its writ of error. This is true notwithstanding decisions almost without number can be found wherein in substance it is stated that the writ of error brings up for review only questions of law, not questions of fact. Such statements must be read and construed in connection with the following stated by my Brother McAllister in his opinion:
“However, it is important to bear in mind that while the writ of error brings .up for review only errors of law, $nd not of fact, a finding of fact may in itself be an error in law. Styles v. Tyler, 64 Conn. 432 (30 Atl. 165); Fernald v. Bush, 131 Mass. 591; The E. A. Packer, 140 U. S. 360 (11 Sup. Ct. 794); Bedlow v. New York Floating Dry Dock Co., 112 N. Y. 263 (19 N. E. 800), 2 L. R. A. 629; Kennedy v. Porter, 109 N. Y. 526 (17 N. E. 426).”
Under Court Rule No. 64 (1933) it may be said that the determination by this court of whether “the judgment is against the preponderance of the evidence” is a question of law rather than one of fact. This is true because, generally speaking, a judgment in a law case which is entered in favor of the party having the burden of proof, notwithstanding the preponderance of the evidence is to the contrary, is a judgment entered in violation of law. So viewed, the scope of the appeal provided by Court Rule No. 64 (1933) is not violative of the Constitution even under the construction adopted by my Brother.
I am quite in accord with my Brother that since the writ of error is a writ for which provision is made in the Constitution, this court could not by the exercise of its rule-making power abolish such writ nor could the legislature by statutory enactment abolish it. But in this connection it may be noted that no attempt has been made either by rule or statute to abrogate or abolish the writ of error.
In passing it may be pertinent to note that my Brother digresses from the issue under consideration when he states in his opinion:
“The question of the unconstitutionality of Court Rule No. 75 (1931) providing for review of law cases, according to the practice in equity cases, appears never to have been raised in any adjudicated cases, or otherwise brought to the attention of this court. ’ ’
We are not now concerned with the well-established practice that in appealed law cases we do not enter judgment in this court, though we may in equity appeals. The same aspect of practice in this State as we now have before us was given serious consideration by this court at the time of its decision in Valentine v. Malone, 269 Mich. 619 (97 A. L. R. 326). Mr. Justice Potter, in a painstakingly prepared and forceful opinion, presented in a large measure the same reasons urged in support of the same contention and conclusion as is now presented by my Brother in the instant case. No other member of the court concurred with this phase of Justice Potter’s opinion, but instead decision of the case was planted on other grounds.
The phase of our practice now under consideration was inaugurated by the court rules of 1931. Unlike my Brother McAllister, I fail to find that Court Rule No. 75 of the 1931 Court Rules differed materially, for purposes now under consideration, from the present Court Rule No. 64 (1933). The former rule read:
“Upon appeal from a judgment rendered in an action at law tried without a jury, such judgment may be affirmed, reversed or modified, in whole or in part, and a final judgment shall be entered either by the Supreme Court or by the trial court, according to the practice in equity cases. ’ ’
Court Rule No. 64 (1933), is hereinbefore quoted in part. In the 1933 rules the former provision of entering judgment in the Supreme Court in a law case “according to the practice in equity cases,” was stricken, it being deemed not advisable to enter such judgments in this court,- and the following was added:
“Appellant may assign as error that the judgment was against the preponderance of the evidence; but on appeals in civil cases error cannot be assigned for total lack of evidence on a material question unless such lack of evidence has been called to the attention of the court during the trial or on motion for a new trial.”
In making the changes above noted it was not the intention of the members of this court who adopted the modified rule to lessen in any way the power of the court to review nonjury law cases as. provided in the 1931 rules. It follows that, regardless of whether' at the time of decision the 1931 rules were in force or the 1933 rules, in so far as pertinent to this phase of appeals, our former decisions should be given consideration. The following cases are expressive of this court’s-conception of the scope of its review on appeals in nonjury law cases:
“In urging that the judgment for $4,500 is excessive, appellant’s counsel rely much upon the practice provided by our recently revised court rules under which the review of nonjury law cases is by hearing de novo in this court. * * * We have reviewed the record with care and find no reason for differing with the trial judge as to the amount of damages awarded.” Oakes v. Van Zomeren, 255 Mich. 372. (Decided October 5,1931.)
“While, under Court Rule No. 75 (1931), we may consider the case de novo, we are unwilling to determine the correctness of the amount of damages without some indication by the trial judge who has heard all of the testimony and seen the witnesses, of what the amount should be.” Collins v. Hull, 256 Mich. 507. (Decided January 4, 1932.)
In his work on Michigan Court Rules, Judge Searl says:
“Under Court Rule No. 75 (1931), held that it was intended that nonjury cases should be heard in Supreme Court de novo. (Citing several cases.)” Searl’s Michigan Court Rules, (4 th Ed.), Court Rule No. 64 (1933), and note.
Among the more recent cases wherein our decision clearly indicates that we accepted and proceeded under the practice provided in Court Rules No. 75 (1931) and No. 64 (1933) are the following: Burchard v. Otis Elevator Co., 261 Mich. 142; Sullivan v. Bennett, 261 Mich. 232 (87 A. L. R. 791); Fyan v. McNutt, 266 Mich. 406; and Bugbee v. Fowle, 277 Mich. 485, in which we said:
“In reviewing* law cases tried without a jury, we are not bound by the findings of fact made by the trial court but consider the record as a whole. ’ ’
Much to the same effect as the above noted cases, see Roger Angstman Co. v. Liggett Spring & Axle Co., 267 Mich. 620; Baumgartner v. St. Armour, 276 Mich. 650.
Clearly it is not wholly accurate to say that our review of a nonjury law ease is de novo. Instead our review of the factual aspect of such a case is limited to consideration of the record on appeal for the purpose of determining whether “the judgment is against the preponderance of the evidence,” if error in that particular is assigned. Such is the practice provided in Court Rule No. 64 (1933). Under the Constitution the court is invested with power by rule-making regulation to provide for such practice, and we must conclude that Court Rule No. 64 (1933) is not violative of the Constitution of this State.
It appears to me that Justice McAllister has wrongly indulged in the assumption that the limitations of review by writ of error are likewise the limitations of the power of this court to review proceedings had at law in an inferior court. We ought not to be misled by erroneously assuming that review in this court of law cases has been or is by writ of error only. Such is not and never was the law in this State. Nowhere in the Constitution is it expressly or impliedly provided that such review is by writ of error only. Instead, plenary judicial power is constitutionally vested in this court, including “power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same; ’ ’ and in addition to such original proceedings this court also has full appellate jurisdiction over inferior courts. Const, of 1908, art. 7, § 4. Inspection of this court’s earlier decisions in appeals of law cases discloses that in very many, perhaps in most, such appeals the proceedings were not by writ of error, but instead by case made. Other reviews in law cases were by mandamus, quo warranto, certiorari, et cetera. And in this connection it is worthy of note that in recent years reviews in law cases are not uncommonly by certiorari, notwithstanding the writ of certiorari is not mentioned in the pertinent portion of our Constitution, except as it is clearly included in “other original and remedial writs.”
Nor should we erroneously assume that the provisions of Court Rule No. 64 (1933) may be extended to the review of cases tried by juries, and thereby a litigant be deprived of his constitutional right to trial by jury. Instead, this constitutional right is and must be preserved; but it does not follow that one may not waive his constitutional right. People v. Henderson, 246 Mich. 481; Attorney-General, ex rel. O’Hara, v. Montgomery, 275 Mich. 504, 526. Court Rule No. 64 is applicable only to those cases wherein the litigants have waived a jury and submitted trial of the issues of fact to the court. It is idle to talk about practice under this rule being* extended to the review of a case tried by jury, and a litigant being thereby deprived of his constitutional right.
It should not be assumed that review of findings of fact by a trial court is limited to the same procedure as is permissible in a case tried by a jury. Certainly there is no such provision in our Constitution. Broader review of nonjury law cases than of jury cases was the prevailing practice in this court prior to 1867, and such practice has again been reestablished and has prevailed since the passag’e of the judicature act in 1915 (Act No. 314, Pub. Acts 1915). See 3 Comp. Laws 1929, § 14266 (Stat. Arm. § 27.995). The change of character and scope of review of nonjury law cases on appeal to this court has resulted from legislative enactments regulating practice and procedure. This is made clear if we recall the history of this phase of practice in this court.
Beginning with Act No. 179, Pub. Acts 1851 the practice on appeals in nonjury law cases specifically provided for review in this court of questions of fact as well as questions of law. This provision in the act of 1851 was reembodied in Act No. 91, Pub. Acts 1853 (See 2 Comp. Laws 1857, § 3438) and the provided practice continued until 1867, during* which period the Constitution of 1850 was operative; and it may be noted that the pertinent provision of our present Constitution is the same as that of the Constitution of 1850. All during this time (1851 to 1867) on appeal to the Supreme Court in a nonjury law case the findings of fact of the trial judge, as well as his determination of questions of law, were reviewable. In the act of 1853 it is provided:
‘ ‘ Section 1. That all issues of law shall be tried by the court, and all the issues and questions of fact shall be tried by the court, unless a jury be demanded by one of tbe parties, in a manner prescribed by the rules of court. * * * _ •
_ ‘ ‘ Sec. 4. Either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may, within such time as shall be prescribed by the rules of court, make a bill of exceptions, in the same manner, and with the same effect as upon a trial by a jury, or a case, containing so much of the evidence as may be material to the question to be raised.”
The noted statutory provisions governing the practice on appeal of nonjury law cases were followed by this court until 1867. The decisions of this court for that period are reported in volumes 2 to 15 of the Michigan Reports. In an early review by this court of a nonjury law case on case made, the following is appended to the court’s opinion and seems to be a part thereof:
“The position of the case in this court is similar to that of a case heard in chancery on pleadings and proofs, and appealed to this court. The facts are supposed to be all before the court, and the decision upon them (by the Supreme Court) disposes of the case.” Barman v. Carhartt, 10 Mich. 338.
Among other nonjury law cases which were appealed to this court for review of controverted issues of fact during this period (1851 to 1867) the following, in addition to the one just above cited, may be noted: Rose v. Lewis, 10 Mich. 483; King v. Moore, 10 Mich. 538; Brown v. Cady, 11 Mich. 535, and Gray v. Howard, 12 Mich. 171.
Following the practice established during the period above covered, this phase of the law was changed by Act No. 142, Pub. Acts 1867. By this legislation the 1853 provision for “review upon the evidence * * * of questions of fact, ’ ’ was deleted. The practice thus changed on appeals in nonjury law cases was closely followed by this court until 1915. It is because of the statutory change made in this type of appeals that during the long period from 1867 to 1915 the decisions of this court in reviewing nonjury cases, as well as jury cases, are confined to consideration of questions of law. Hence such decisions are of no persuasive force whatever as tending to sustain the contention that they are indicative of constitutional interpretation or that this court is without power on appeals in nonjury law cases to review determination of issues of fact.
In 1915 the judicature act was passed, and again the practice on appeals in nonjury law cases was changed and broadened. The section of the judicature act (Act No. 314, chap. 18, § 15, Pub. Acts 1915, as amended by Act No. 276, Pub. Acts 1929), which is of like purport as of Act No. 91, § 4 Pub. Acts 1853, reads:
“In cases where the court files written findings of fact or answers to special questions either party may file exceptions to such findings of fact or answers, on the ground, that such findings or such answers are against the clear weight of the evidence, and may assign error upon such exceptions, and if an appeal be taken, the same shall be reviewed by the Supreme Court. ’ ’ 3 Comp. Laws 1929, § 14266 (Stat. Ann. § 27.995).
Since the enactment of this statute, the uniform practice of this court in reviewing nonjury law cases has been broadened and of a character that was not obtainable under the former practice, in that we have reviewed the testimony in nonjury law cases and determined whether the decision of the trial judge on controlling issues of fact was against the clear preponderance of the evidence. I know of no decision of this court since 1915 holding to the contrary. Many of our decisions rendered since 1915 disclosing that on appeal in nonjury cases we have reviewed the testimony to ascertain whether decision of the trial judge was “against the clear weight of the evidence” might be cited, among them Dows v. Schuh, 206 Mich. 133, Standard Pickle Co. v. Railway Co., 222 Mich. 639; Kriss v. Field, 241 Mich. 42, and Leonard v. Hey, 269 Mich. 491 (37 N. C. C. A. 111).
It all comes to this: These changes in the scope of our review on appeals of nonjury law cases have been in accord with and due to changes in the statutory regulations of such reviews. The decisions from 1867 to 1915 which hold that this court did not then review issues of fact on appeals in nonjury cases do not tend to sustain the contention that our constitutional power to review issues of fact decided by a trial judge is limited to our right to review on writ of error findings of fact by a jury.
On this phase of the law, which has been needlessly injected into the instant case, the sole question is this: Has this court the right and power under the Constitution to review nonjury law cases in the manner and to the extent provided in Court Rule No. 64 (1933). It seems clear that under the sections of the Constitution quoted in the earlier part of this opinion, this court has that right and power; and it follows that the rule is not unconstitutional.
Butzel, C. J., and Wiest, Btjshnell, Sharpe and Chandler, JJ., concurred with North, J.
See article $, § 2. — Reporter.
This section was amended by Aet No. 276, Pub. Acts 1929 and is now 3 Comp. Laws 1929, §14266 (Stat. Ann. §27.995).'—Reporter.
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Butzel, J.
Plaintiff, as beneficiary, brought suit against defendant on a life insurance policy which, in addition to a death benefit of $1,000, provided for double indemnity if death were caused solely by external, violent and accidental means. Under stipulation of the parties, the death benefit of $1,000 was paid without prejudice to the right to recover the additional $1,000 if death were caused by accident. The sole issue tried in the lower court was whether death was caused by suicide or by accident.
The circumstances surrounding decedent’s death are not clear. About 9 a. m. Sunday, October 6, 1935, decedent went to the recreation room in the basement of his home. Shortly thereafter the report of a gnn was heard and decedent was found by plaintiff slumped on a porch glider in the recreation room. There was a gunshot wound in his left chest and a pump action shotgun was lying on the floor in front of him. A box of shells and a gun case were lying on a table adjoining the glider. There were no rags or other gun-cleaning equipment noticeable. The gun was of a cheap make and the safety mechanism was defective, so that the gun could have been discharged with but slight effort or by accident. Decedent was immediately taken to a hospital where he died the following evening at 10. The police officer who rode with decedent in the ambulance to the hospital asked him why he did it and received the response :
“I am losing my home and losing my health. Get me a priest. ’ ’
Plaintiff claims that these remarks were made by decedent while in a state of shock and semi-consciousness. At the hospital plaintiff, who is decedent’s widow, informed a nurse that the reason decedent took his life was because he loved her and the child. Decedent at one time was apprehensive of losing his home on account of foreclosure, but a new loan had been definitely arranged with the Home Owners Loan Corporation. A month before his death, decedent consulted a doctor to whom he had been sent by another physician, who suspected he had a gall bladder disease. After an X-ray examination, decedent was told that nothing was wrong with him.
Although the case was heard before a jury, both sides moved for a directed verdict without reservation. The judge thus had a right to take the case from the jury and to make Ms own findings of fact. Arnold v. Krug, 279 Mich. 702. He field that decedent’s death was accidental and entered judgment in plaintiff’s favor. Defendant appeals. If there is substantial evidence to support tfie court’s findings, tfie judgment must be affirmed on appeal. Jarecki Manfg. Co. v. Ragir, 272 Mich. 689. We find tfiat it is not so supported, and verdict and judgment should have been entered for defendant.
Both parties to this litigation call attention to the case of Curth v. New York Life Ins. Co., 274 Mich. 513, wherein suit was brought both upon tfie ordinary death indemnity provision and tfie accident provision of a double indemnity policy. Tfie policy also provided tfiat if assured should commit suicide within two years after tfie date of tfie policy, tfie liability would be limited to tfie amount of the premiums paid. Tfie insured died within a year after the issuance of tfie policy and tfie main question at issue was whether death was caused by suicide. On appeal, this court field tfiat it was proper to charge tfiat tfie burden of proof of suicide was on defendant. However, tfie opinion in tfiat case discloses tfiat defendant therein had not properly raised tfie question of burden of proof of accidental death in tfie lower court and for tfiat reason, it was held that the charge of tfie court was not erroneous.
We have re-examined the question with particular care and it becomes necessary to point out the distinction between such cases as Curth v. New York Life Ins. Co., supra, and Shiovitz v. New York Life Ins. Co., 281 Mich. 382, on the one hand, and the very recent case of New York Life Ins. Co. v. Gamer, 303 U. S. 161 (58 Sup. Ct. 500, 114 A. L. R. 1218), and the instant controversy, on the other.
In a case where suit is brought to recover a death indemnity under an ordinary life insurance policy, without additional benefits in case of death by accident, plaintiff makes a prima facie case upon a showing of death. Suicide is an affirmative defense and the burden of proving such is on defendant. Ferris v. Court of Honor, 152 Mich. 322; Shiovitz v. New York Life Ins. Co., supra; Stuckum v. Metropolitan Life Ins. Co., 283 Mich. 297.
However, when the action is brought upon an accident policy or upon the double indemnity provision of a life policy, it is incumbent upon plaintiff to show that death occurred through accidental means. The burden of proving accidental death and the consequent negativing of suicide is on plaintiff. New York Life Ins. Co. v. Gamer, supra; Watkins v. Prudential Ins. Co., 315 Pa. 497 (173 Atl. 644, 95 A. L. R. 869); Nichols v. New York Life Ins. Co., 88 Mont. 132 (292 Pac. 253); Protective Life Ins. Co. v. Swink, 222 Ala. 496 (132 South. 728); Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659 (143 South. 842); Provident Life & Accident Ins. Co. v. Prieto, 169 Tenn. 124 (83 S. W. [2d] 251); Landau v. Pacific Mutual Life Ins. Co., 305 Mo. 542 (267 S. W. 370); Kresse v. Metropolitan Life Ins. Co., 111 N. J. Law, 474 (168 Atl. 634); Martorella v. Prudential Ins. Co., 238 App. Div. 532 (264 N. Y. Supp. 751); Travelers Ins. Co. v. Wilkes (C. C. A.), 76 Fed. (2d) 701, certiorari denied, Hirsig v. Travelers Ins. Co., 296 U. S. 604 (56 Sup. Ct. 120); Jefferson Standard Life Ins. Co. v. Clemmer (C. C. A.), 79 Fed. (2d) 724 (103 A. L. R. 171). In New York Life Ins. Co. v. Gamer, supra, the court said:
“Under the contract in the case now before us, double indemnity is payable only on proof of death by accident as there defined. The burden was on plaintiff to allege and by a preponderance of the evidence to prove that fact. The complaint alleged accident and negatived self-destruction. The an swer denied accident and alleged suicide. Plaintiff’s negation of self-destruction taken with defendant’s allegation of suicide served to narrow the possible field of controversy. Only the issue of accidental death vel non remained. The question of fact to be tried was precisely the same as if plaintiff merely alleged accidental death and defendant interposed denial without more. ’ ’
The distinction between suit for the face amount of a life policy and for double indemnity under an accident provision is recognized in Shiovitz v. New York Life Ins. Co., supra, wherein we stated:
“Both parties in their briefs concede that it (the policy) contained a clause providing for double indemnity in case of accidental death and defendant contends that as plaintiff brought suit only for the face of the policy, she admitted that death was not accidental. It was plaintiff’s right to bring suit for only the face of the policy. Had she attempted to prove an accidental death, she might have been confronted with the same difficulty defendant encountered in trying to prove suicide. ’ ’
Because of this distinction, difficulty may arise in framing proper instructions to be given the jury when suit is brought both upon the ordinary life provision and the accident provision of a double indemnity policy. Upon analysis, this difficulty disappears, as is shown in Jefferson Standard Life Ins. Co. v. Clemmer, supra, wherein the court said:
“In such event, it is clear that the burden of persuasion rests upon the plaintiff to bring himself within the double indemnity provision, and upon the company to bring itself within the protection of the suicide clause, and it becomes necessary to apply these rules so that they do not conflict with one another, and confuse the trier of facts. There is, in reality, no conflict between them. If the jury are satisfied by a preponderance of the evidence that the death was accidental, their verdict should be for the plaintiff for the full amount. If, on the contrary, they are satisfied by the same measure of proof that the death was suicidal, they should find a verdict for the defendant. Finally, if their minds are in a state of equipoise, and they are unable to determine upon the evidence before them whether the death was accidental or suicidal, they should not find a verdict for the full amount of the claim, but only for the face of the policy; for, in such event, the plaintiff will have failed to meet the burden of persuasion as to accident, and the company will have failed to meet the burden of persuasion as to suicide. Of course, if the plaintiff foregoes his claim for double indemnity, and limits the suit to a single liability, the burden of persuasion is on the company; and, on the other hand, if the company admits single liability and the contest is over the double indemnity, the burden of persuasion is on the plaintiff.”
Although the trial judge in the instant case properly assumed that the burden of proof was on plaintiff, his finding in her favor is not supported by the evidence. The presumption against suicide which exists until evidence to the contrary is introduced was clearly rebutted by the testimony of defendant’s witnesses. The burden remained on plaintiff to prove by a preponderance of the evidence that death was accidental and was not caused by suicide. Jefferson Standard Life Ins. Co. v. Clemmer, supra.
Ño evidence was introduced to prove that death was accidental éxcept that it was shown that there seemed to be an absence of motive for suicide and that the gun could be discharged very easily and by accident. Just why the deceased was handling the gun was left to surmise. The testimony indicates that he was not cleaning it. The box of shells on the table would give rise to the belief that the gun had just been loaded. Tbe statements made by decedent to tbe effect that he did it because he was losing his home and his health, and by plaintiff, .that decedent did it for the sake of his family, all indicate suicide. There is no evidence to support a finding of death by accidental means and a verdict should have been directed for defendant.
Judgment is reversed without a new trial, with costs to defendant.
Wiest, C. J., and Bushnell, Sharpe, Potter, Chandler, North, and McAllister, JJ., concurred. | [
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Potter, J.
Plaintiff, a stock insurance company, organized under the laws of Michigan, purchased $6,000, in par amount, of trust mortgage bonds of the First Mortgage Bond Company, Inc., secured by a first trust mortgage on Brooklawn apartments, corner of Brooklyn and Hancock avenues, in Detroit. The trust mortgage securing the payment of these bonds was executed by Joseph Saxer and wife January 15, 1924. In December, 1925, Saxer and wife conveyed the mortgaged property to Douglas M. Davis. February 1, 1926, Douglas deeded the property to himself and William M. Stoker. In this deed, Davis and Stoker assumed and agreed to pay the mortgage thereon. January 16,1928, Stoker resigned as a trustee under the trust mortgage, he being a cotrustee with the First Mortgage Bond Company, Inc. July 2, 1928, Davis and Stoker and their respective wives deeded the property in question to Sam Borock. Unpaid taxes accumulated. In 1930, the trust mortgage was foreclosed by the trustee by advertisement and sale held June 12, 1930. The property was bid in by the trustee in its corporate capacity, and not as trustee, for the full amount due thereon, $40,670.01.
At this sale, the purchaser did not pay cash, it did not surrender outstanding bonds secured by the mortgage equal to the price bid. It could not legally buy the property without paying therefor either in cash or bonds. It paid nothing. The purchase by it was fraudulent and fictitious. The sheriff’s certificate that he received the purchase price and paid the same over to the parties entitled thereto was false. The sheriff’s deed was executed without any consideration, and one important question here is, whether this purported sale and distribution of the proceeds thereof and the sheriff’s deed executed in pursuance of such sale, which are of record, are of any validity whatever as against plaintiff.
Apparently, the First Mortgage Bond Company, Inc., bid in the mortgaged property in its individual capacity to enable it to handle it more easily. August 29, 1930, Borock, who had become the purchaser thereof, made application to the Michigan securities commission to issue and sell $45,000 of first mortgage bonds to refinance an issue maturing January 15, 1931. September 2, 1930, Borock and wife executed a trust mortgage to the First Mortgage Bond Company, Inc., as trustee, in the sum of $45,000 to secure $40,000, in par amount, of senior bonds and $5,000, in par amount, of junior bonds. The same day, September 2, 1930, a certificate of redemption from the Saxer mortgage was executed by tlie First Mortgage Bond Company, Inc., recorded November 13, 1930. This certificate of redemption recited that redemption from tlie foreclosure of tbe Saxer mortgage was effected through a new mortgage given by Sam Borock and Rebecca Borock, his wife, to the First Mortgage Bond Company, Inc., a Virginia corporation duly authorized to do business in the State of Michigan, as trustee. Borock did not redeem from the mortgage sale or the Saxer mortgage. The only thing he ever paid was $1,337.45 to apply on delinquent taxes upon the property. December 11, 1930, the Michigan securities commission authorized the issuance of the new bonds in the amount of $45,000 as above mentioned. $40,000 of senior bonds were offered for sale by the First Mortgage Bond Company, Inc. No mention is made in the advertisement of the First Mortgage Bond Company, Inc., of the $5,000 in junior bonds.
The First Mortgage Bond Company, Inc., became financially involved and the court took over the administration of the several trusts. The Borock mortgage was foreclosed and the property bid in for the First Mortgage Bond Company, Inc., as trustee. All the other Saxer bonds, secured by the Saxer mortgage upon the property, were discharged. Plaintiff’s bonds were not discharged and in this suit plaintiff seeks to establish a lien for the amount of the bonds held by it, and interest, upon the property involved prior and superior to the lien or rights of any person or persons other than themselves under the original trust mortgage; that the court decree a foreclosure of plaintiff’s lien in accordance with the practice in this State on the foreclosure of equitable liens; that if the court finds that plaintiff does not have a prior and superior lien upon the premises, the court decree plaintiff to be the owner of an undivided interest in and to the premises by reason of the foreclosure of the original trust mortgage, and that the premises be partitioned in accordance with the statutes of this State; that defendants, and each of them, come to a full and true accounting of their trusteeship, and that they be held liable for any and all damages to plaintiff by reason of their gross and repeated breaches of trust, negligence and misconduct ; and for other relief.
The trial court in its opinion found the sale of the property under the foreclosure of the Saxer mortgage was irregular and unauthorized; that the First Mortgage Bond Company, Inc., had the right to bid and purchase but only for cash or for bonds turned in for cancellation; that no cash was paid and no bonds turned in for cancellation; that the only thing that happened was, the First Mortgage Bond Company, Inc., bid the full amount of the outstanding bonds, with interest and charges, and took a sheriff’s deed; that no consideration passed for the execution and recording of the certificate of redemption; that plaintiff’s bonds are still a first lien upon the property, but that the purchasers of the bonds authorized by the second mortgage were purchasers in good faith; that plaintiff was entitled to relief and it was given an option as to the form thereof, — first, it was given a lien upon the property for 6/48 of the title, being thus placed on a parity with the lien or right therein of the Borock bondholders; second, it was entitled, at its election, to the rights represented by $6,000 of the Borock bonds held in escrow; third, at its option, it might take a personal decree against the First Mortgage Bond Company, Inc., for the re covery of its damages by reason of the unjustified and irregular foreclosure of tbe Saxer mortgage, the damages to be recovered to be a 6/40 interest in the property, less 6/40 of the expenses incurred, including* interest and taxes paid in connection with the mortgage foreclosure. The value of the property was fixed at $33,000 and the trial court held the damages would have to be computed upon that basis. Plaintiff was given its election as to which of the three options indicated it would exercise as the basis of its relief. Plaintiff did not elect between the forms of relief authorized by the opinion of the trial court, whereupon a decree was entered fixing the aggregate mortgage principal, advances and expenses at the time of the foreclosure of the original Saxer mortgage at $41,300.35 and giving plaintiff an equitable, beneficial interest in said land in the proportion of $6,000 to said sum of $41,300.35. Plaintiff appeals.
The original Saxer mortgage, article 10, § 3, provided :
“The trustees shall be under no obligation to recognize any person, firm or corporation as holder or owner of any of the bonds secured hereby or to do or refrain from doing* any act pursuant to the request of any person, firm or corporation professing to be or claiming to be such holder or owner until such supposed holder or owner shall produce the said bonds and deposit the same with the trustees or prove ownership thereof by evidence satisfactory to the trustees, but all powers and rights of action hereunder may be exercised by the trustees without the possession or production of any of said bonds or coupons or proof of ownership thereof. The trustees shall not be answerable for the default or misconduct of any agent or attorney employed by them in and about the execution of this trust, if such agent or attorney shall have been selected with reasonable care; or for anything whatever in connection with this trust except wilful misconduct or gross negligence. The trustees shall not be personally liable for any debts contracted by them nor for damages to person or property incurred by them, nor for damages to persons or property of any kind whatsoever, or for salaries or nonfulfillment of contracts during* any period within which they shall manage the trust, estate or premises upon entry. Neither trustee shall in any case be answerable for any act, omission or neglect of the other trustee.”
Article 10, § 7, provided:
“That in all actions, suits or proceedings or dealings or transactions in any way affecting or relating to this indenture or to the premises or any part thereof or the title thereto, the trustees shall be deemed the representative of the bondholders and in no case shall it be necessary to satisfy any bondholder or to make any bondholder a party of any action, suit or proceeding for the purpose of binding or concluding him.”
In Moran v. Roberge, 84 Mich. 600, it is said:
“Subsequent mortgagees without notice may rely upon the evidence of discharge as shown by the record. A discharge is only conclusive as to those who purchase in good faith. A discharge may be recorded, and still the mortgage be not discharged. A subsequent mortgagee with notice of that fact will not be protected by the record. It is not necessary that the discharge be recorded in order to protect a subsequent purchaser or mortgagee. When such an one receives reliable information, upon which he relies, that a mortgage has been discharged, he will be protected if it turns out that the mortgage was in fact discharged.”
In Pritchard v. Kalamazoo College, 82 Mich. 587, a mortgage was executed to secure four instalments, one of which was assigned by tbe mortgagee who subsequently discharged the mortgage. It was held (syllabus):
“A landowner, after mortgaging his land, sold it, taking back a purchase-price mortgage, payable in four instalments, one of which he assigned. His grantee mortgaged the land to the first mortgagee, and then redeeded it to the grantor, who soon after executed a new mortgage to the first mortgagee in lieu of the two mortgages, which were discharged. At tins time the assignment had not been recorded, and the first mortgagee had no notice of its existence, but the purchase-price mortgage was of record and undischarged. After the recording of the assignment, the first mortgagee foreclosed the neto mortgage, but did not make the assignee a party, who filed a bill to foreclose his interest under the assignment. And it is held that, by failing to record the assignment, the new mortgage took priority over the instalment assigned, but that, as the assignment was recorded before the commencement of the foreclosure suit, and the assignee was not made a party, his bill will be treated as a bill to redeem, which he will be allowed to do by paying the amount due the first mortgagee on the new mortgage, and a decree will be entered in his favor for the redemption money, and for the amount of his instalment, under which he may sell the land to satisfy said claims.”
In Bier v. Weiler, 203 Ill. App. 144, it is said:
“The recording of a release made by persons appointed in a mortgage or trust deed to execute the release carries with it as to subsequent bona fide purchasers the legal inference that the released deed has been delivered. Havighorst v. Bowen, 214 Ill. 90 (73 N. E. 402). ‘Whether the release was in fact delivered to Bowen would seem to be not controlling' as between the parties. It was made by tbe person pointed ont in the trust deed to make it. It was placed of record, and under our recording act the fact that it was of record carried with it, as to appellees and innocent third parties, the legal inference that it was delivered. There is quite as much delivery of this deed as there could be of an entry of satisfaction on the margin of the record, and, as we have said, one is given the same legal effect as the other.’ * * * *
“ ‘The law is well settled in this State that the trustee in a trust deed of the character of the one in question has the power, as to third parties, to release the lien created thereby so as to revest the title in the grantor, even though he does so without the consent of the holder of the indebtedness, whieh the trust deed was given to secure and in violation of the obligations of his trust; * * * and such release may be made even though the indebtedness secured by the trust deed is not due at the time the release is executed.’ ”
A situation similar to that here involved was under consideration in Porter v. Stuart (C. C. A.), 227 Fed. 840, where it is said:
“The situation as between Porter and a subsequent mortgagee is such that one of these two innocent persons must suffer by the act of Sweatt in releasing the lots without having received the required payments on them. The conclusion is that in the circumstances disclosed it was Porter’s conduct, and not any fault or lack of due diligence on the part of the subsequent mortgagees, that enabled Sweatt to occasion the loss. This being true, the loss must fall upon Porter.”
“Under the Federal rule, knowledg'e of the trustee, in a case such as this, is not to be imputed to a bona fide holder for value of the note secured. The very point was decided by necessary implication in the case of Williams v. Jackson (107 U. S. 478 [2 Sup. Ct. 814]), where the trustee had knowledge of the wrongful character of the release of the prior deed of trust, and it was held that the holder of the notes secured by the deed of trust to him was a holder without notice.” Ballard Bros. Fish Co. v. Stephenson, 49 Fed. (2d) 581.
In Simpson v. Stern, 63 App. D. C. 161 (70 Fed. [2d] 765), it is said:
“The insurance company in good faith relied upon the title as it appeared of record, and paid over its money to the Swartzell Company by direction of Abner Drury Company'-'as the owner and mortgagor of the property. It is entitled to be protected in its lien under the statutes relating’ to the registration of such instruments. This view is supported by controlling authorities.”
In Williams v. Jackson, 107 U. S. 478 (2 Sup. Ct. 814), the trustee wrongfully released mortgaged premises before notes were paid. The court said the lender took every reasonable precaution that could have been expected of a prudent man when he declined to lend his money until after he had been furnished with an abstract of title showing the deed of release from the trustees under the first deed of trust and from the original holder of the notes secured thereby, had been recorded, and the land was not subject to any incumbrance prior to the second deed of trust. It was said:
“To charge Williams with constructive notice of the fact that the notes had not been paid, in the absence of any proof of knowledge, fraud or gross or wilful negligence, on his part, would be inconsistent with the purpose of the registry laws, with the settled principles of equity, and with the convenient transaction of business.”
This language was approved in Havighorst v. Bowen, 214 Ill. 90 (73 N. E. 402), and Vogel v. Troy, 232 Ill. 481 (83 N. E. 960).
As pointed out in Vogel v. Troy, supra, quoting from Lennartz v. Quilty, 191 Ill. 174 (60 N. E. 913, 85 Am. St. Rep. 260):
‘ ‘ The recording laws are designed to afford protection to parties acting in good faith and relying upon them, and in the absence of any notice or ground of suspicion it is not the duty of a purchaser to obtain an admission of payment from the holder of a note secured by a trust deed regularly released of record.”
Substantially similar holdings were made in Mann v. Jummel, 183 Ill. 523 (56 N. E. 161); Day v. Brenton, 102 Iowa, 482 (71 N. W. 538, 63 Am. St. Rep. 460); Merrill v. Luce, 6 S. D. 354 (61 N. W. 43, 55 Am. St. Rep. 844). While in Griffin v. International Trust Co., 88 C. C. A. 212 (161 Fed. 48), it is held that the entering of satisfaction of a mortgage and taking of a new one, when designed by the parties to be merely a continuation of the first mortgage, and when the two acts are practically simultaneous or parts of the same transaction, is not an extinguishment of the mortgage, but a renewal thereof, and does not give priority to an intervening judgment or mortgage creditor of the mortgagor, especially where it is done in good faith, in ignorance of the existence of the intervening lien, and without any intention to release the lien of the mortgage. 27 Cyc. p. 1222; Pearce v. Buell, 22 Ore. 29 (29 Pac. 78); International Trust Co. v. Davis & Farnum Manfg. Co., 70 N. H. 118 (46 Atl. 1054); 2 Jones on Mortgages (8th Ed.), pp. 736, 737, § 1244.
We do not commend the practice pursued by the First Mortgage Bond Company, Inc., but under the facts here shown the decree of the trial court is affirmed, with costs.
Bushnell, Sharpe, Chandler, North, and Mc-Allister, JJ., concurred with Potter, J. | [
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Chandler, J.
On November 23,. 1934, plaintiff’s husband, Paul M. Hutchings, and defendant Albert P. Crell entered into an agreement whereby Hutchings was to receive the sum of $7,500 as consideration for the release by him of certain claims and for services he had performed in connection with an attempted reorganization of the Wolverine Bumper & Specialty Company, which finally resulted in a sale of the assets of said company to a new company known as the Michigan Bumper Corporation. The details of said agreement are of no importance in this litigation. On the same day, Paul M. Hutchings assigned his interest in the contract to his wife, Irene E. Hutchings, the plaintiff herein, and a copy thereof was delivered to Mr. Crell.
Thereafter, the Michigan securities commission authorized the issuance of 325,000 shares of capital stock by the Michigan Bumper Corporation, distribution of which was to be made by the Securities Exchange Corporation, later known as the Securities Investment Corporation, a brokerage concern, the stock of which was equally owned by defendants Neil Wagenaar and Gferritt B. Takens.
On March 1,1935, Crell entered into an agreement executed by Wagenaar and Takens individually, which provided in part as follows:
“We agree
“(a) to deliver to you 85,000 shares of Michigan Bumper Corporation stock (less 9,800 shares hereinafter mentioned) in consideration of your assignment to us of your claim against Wolverine Bumper & Specialty Company;
“(b) to assume and agree to pay your obligation to Paul M. Hutchings set forth in your agreement with him dated November 23, 1934, and, in this connection, to sell the 9,800 shares of stock above mentioned in order to provide funds with which to pay this obligation.”
No payments had been made on plaintiff’s claim prior to March 1, 1935. A short time thereafter, plaintiff called upon Mr. Crell at his office and demanded payment. The conversation which transpired at this meeting is a disputed point, it being claimed by Crell that he telephoned defendant Wagenaar at the Securities Exchange Corporation relative to plaintiff’s visit and that Wagenaar, in response to Crell’s inquiry as to whether plaintiff could get some money, replied: “I will do the best I can.” Crell further claims that during this same conversation, it was agreed that if she accepted payments from the Securities Exchange Corporation, she would thereby release him from all liability and would be obliged to look to said corporation for all subsequent payments. This was denied in its entirety by plaintiff.
In any event, plaintiff never approached either Takens, "VYagenaar, or the Securities Exchange Corporation for payment but instead delegated her husband to do so. Several payments subsequently were made which will be hereinafter discussed, and plaintiff finally instituted this action to recover the balance claimed by her to be due.
The declaration admitted payments had been made in the amount of $4,480 and claimed a balance due, without interest, of $3,020.
The first dispute arises in connection with the amount claimed to be still unpaid, the answer of Wagenaar, Takens and Securities Exchange Corporation claiming credit for payments alleged to have been made on the claim between March 2, 1935, and October 9, 1935. The answer also claimed a set-off for the sum of $650, alleged to represent advancements made to plaintiff’s husband between November, 1933, and October, Ü934. No proof of the advancements was offered at the trial.
The evidence in support of the claim of additional payments having been made was confined to five checks given between August 21,1935, and October 9, 1935, totalling $1,100, each being drawn by the Securities Exchange Corporation payable to Paul M. Hutchings. On each of the occasions that sums were received by Mr. Hutchings between the dates mentioned, he gave to the corporation his promissory note covering the amount of the check received.
Plaintiff insists that the foregoing amounts constituted loans to her husband and were not intended as payments on the obligation. ' Defendants, on the other hand, contend that they were intended as payments and that credit should be given therefor.
It is conceded that plaintiff’s husband had authority to make collections on the amount due on the contract. Whether or not the sums given to him as aforesaid constituted payment on the obligation then becomes a matter of intention. If they were given and received as payment, credit therefor should be given.
“Payment involves intent, express or implied, to make payment on the one side and to receive it or accept it on the other. ’’ Clayton County State Bank v. McMorrow, 209 Iowa, 165 (225 N. W. 859, 1 A. L. R. 1522).
See, also, Luckenbach v. W. J. McCahan Sugar Refining Co., 248 U. S. 139 (39 Sup. Ct. 53).
The stock turned over by Crell to Wagenaar and Takens was sold and the proceeds in the amount of $8,330 credited on the books of the Securities Exchange Corporation in the name of “Gr. B. Takens, Neil Wagenaar, % Paul Hutchings, Wolverine Bumper Co.” The book account shows debits for the sums paid to Mr. Hutchings and for which credit is now claimed. Mr. Wagenaar testified that on each occasion, Hutchings rushed into his office saying he was in need of money and inquiring if there was any available for him on his account. If the account had not been garnisheed at the particular time, a check would be given as a payment and, according to Wagenaar, the promissory notes were taken merely as a protective measure because he was not sure as to whether plaintiff or her husband was entitled to receive the payments. He further testified that the notes so taken meant nothing and were not considered as an asset of the corporation. The trial court was not satisfied with this explanation, stating that no convincing reason had been advanced as to why the notes were given if the sums paid were not loans as they appeared to him to be.
The same result was reached in connection with two other checks given to Mr. Hutchings, in connection with which the following agreement, omitting real estate descriptions, was given by Hutchings to Wagenaar:
“In consideration of the advance to Paul M. Hutchings the sum of $300 by Neil Wagenaar, said Paul M. Hutchings hereby agrees to pay or cause to be paid to said Neil Wagenaar, 50 per cent, of any sums of money or any drilling interests or any emoluments received by said Paul M. Hutchings from the sale or development of an oil and gas lease on the following described property. * * *
“It is further understood and agreed that the sum of $300 above mentioned is to be returned to Neil Wagenaar before any division of interests or profits is made to the two parties to this agreement.”
In view of the latitude permitted Hutchings by plaintiff in dealing with her funds, we have closely examined the evidence and claims of defendants but conclude, as did the trial court, that the sums claimed as payments were intended to be and were in fact personal loans to Paul Hutchings, and that credit therefor on plaintiff’s claim was properly denied.
Defendant Crell seeks to escape liability on the theory that he was released therefrom by a novation to which plaintiff was a party. The essential requisites to a valid novation were reiterated in George Realty Co. v. Gulf Refining Co., 275 Mich. 442. One of the essential elements is the consent of all parties to the substitution. Another is found to be the extinction of the old obligation and the creation of a valid new one. The claim of novation in the instant case is alleged to be based in the first instance on the conversation which occurred between plaintiff and Crell in the latter’s office in March, 1935, to which reference has heretofore been made, and in which it is claimed that plaintiff agreed that if she accepted payments on the obligation from the Securities Exchange Corporation, she would look to that source for all future payments. As has been stated, this was denied by plaintiff, and we see no sound reason for disturbing the finding of fact made by the trial court that the plaintiff did not consent to such an arrangement.
In further support of this claim, it is asserted that the subsequent conduct of plaintiff resulted in a novation. On November 2,1935, a demand was made upon defendant Crell for the entire sum due under the contract, payment thereof being desired to satisfy claims of creditors of Paul M. Hutchings which were then being litigated in the Federal court. On November 11, 1935, the Securities Exchange Corporation paid $2,200 on the account and received a receipt therefor signed by plaintiff’s attorney and her husband wherein it was recited that the contract had been “assigned to and assumed by Securities Exchange Corporation and/or Neil Wagenaar and G. B. Takens on March 1, 1935.” It also provided that the payment was made without prejudice to the rights of Securities Exchange Corporation and/or Wagenaar and/or Takens for any advancements theretofore made by them. We do not construe this instrument to be' anything more in legal effect than a receipt for the amount paid on the contract. It cannot be said to amount to an agreement or recognition of an agreement on the part of plaintiff to accept a new debtor and to release Crell from liability. The mere fact that payments were made by a third party and accepted by plaintiff is not sufficient to establish a novation.
We have examined other claims made by defendants on this point but after a review of all the evi dence are of the opinion that a novation was not established by the proofs. It therefore follows that defendant Crell has not been released from liability.
The trial court held defendants Takens and Wagenaar liable under the provisions of Act No. 296, Pub. Acts 1937 (Comp. Laws Supp. 1937, § 11063-1 et seq., Stat. Ann. 1938 Cum. Supp. § 26.1231 et seq.), in view of the agreement made between them and Crell on March 1,1935, whereby they assumed Crell’s obligation under the contract. Section 1 of the statute provides:
“Any person for whose benefit a promise is made by way of contract, as hereinafter defined, shall have the same right to enforce said promise that he would have had if the said promise had been made directly to him as the promisee. ’ ’
We approve the application thereof to the facts presented in the instant case.
Subsequent to the institution of this suit a receiver was appointed for the Securities Exchange Corporation who filed a separate answer herein. The trial court properly found that this party was not liable to plaintiff because even though Wagenaar and Takens, owning all of the stock of the company, attempted to transfer the obligation to the corporation, the assumption thereof was never authorized by proper corporate action. The matter was never presented to or acted upon by the board of directors of said company.
Judgment affirmed, with costs to plaintiff.
Butzel, C. J., and Wiest, Bushnell, Sharpe, and Potter, JJ., concurred. McAllister, J., did not sit. North, J., took no part in this decision. | [
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Potter, J.
May 15, 1926, Robert J. Wagner and wife borrowed $12,500 from the Bank of Detroit and gave therefor their promissory note of $12,500, secured by real estate mortgage of even date made by them to the bank collateral thereto, the terms and conditions of which were made a part of the note.
Under any theory of the case, the mortgage is due and payable. October 30, 1937, plaintiff, as owner of the mortgage, filed a bill to foreclose the same. The trial court, on motion of counsel for defendants Wagner ordered that the bill of complaint so far as the same pertains to the defendants Robert J. Wagner and Hazel A. Wagner be dismissed, with costs to said defendants. Plaintiff appeals.
Proceedings to foreclose a mortgage may be maintained if commenced within 15 years from and after such mortgage shall become due and payable, or within 15 years after the last payment made on the mortgage. 3 Comp. Laws 1929, § 13975 (Stat. Ann. §27.604).
Where the mortgage debt is secured by the obligation or other evidence of debt of any other person besides the mortgagor, the plaintiff may make such person a party to the bill, and the court may decree payment of the balance of such debt remaining unsatisfied, after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases. Upon foreclosure sale, the mortgagors are liable under the statute for deficiency and the obligation or other evidence of debt of any other person besides the mortgagor may make them liable. 3 Comp. Laws 1929, §14368 (Stat. Ann. §27.1136). Upon foreclosure, the court ascertains and determines the amount due, orders a sale of the premises and if, upon sale, the proceeds thereof equal or exceed the amount due upon the mortgage debt, interest and costs, the same is satisfied. If there is a surplus, it is brought into the court for the use of defendants, subject to the order of the court. 3 Comp. Laws 1929, § 14373 (Stat. Ann. § 27.1141). And if the premises do not, upon mortgage sale, bring sufficient to satisfy the balance of the mortgage, interest and costs, the court may decree the payment of the balance of the mortgage debt remaining unsatisfied after a sale of the premises against the mortgagor and against any other person besides the mortgagor whose obligation or other evidence of debt secures the payment of such mortgage. 3 Comp. Laws 1929, § 14366, as amended by Act No. 229, Pub. Acts 1933, § 14368 (Stat. Ann. §§ 27.1134, 27.1136).
The trial court was in error in dismissing the bill of complaint as to Wagner and wife who were proper parties to the suit.
Wagner and wife conveyed the premises by warranty deed September 1,1926, to Philip C. Baker, as grantee, who assumed and agreed to pay the mortgage in question. The mortgage contained two clauses upon which defendants Wagner rely, one of which, inserted in the mortgage in typewriting, was as follows:
“It is understood and agreed by the parties hereto that should default be made in any of the terms of this mortgage, then the entire amount due, including the unpaid balance on principal and interest and all expenses shall be in default and the mortgage (mortgagee) is hereby empowered to exercise the power of sale covering the entire amount then unpaid. ’ ’
The mortgage also contained in the printed form a provision:
“That should default be made in the payment of any of the sums of money above mentioned, or any instalment of interest, or in the performance of any of the covenants or agreements herein contained, and should such default continue for 30 days, the whole principal sum of this mortgage, together with all arrearage of interest thereon shall, at the option of said mortgagee, its successors or assigns, and without notice, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired. The commencement by said mortgagee, its successors or assigns, of proceedings to foreclose this mortgage in any manner authorized by law shall be deemed an exercise of said option.”
Upon the filing of the bill of complaint, the defendants Wagner and wife made a motion to dismiss the bill of complaint for the reason that plaintiff was foreclo'sed from the right to recover a deficiency decree against the Wagners for the reason that its right to recover the same was barred by 3 Comp. Laws 1929, § 13976, as amended (Stat. Ann. § 27.605), which statute provides that all actions in any court of this State shall be commenced within six years after the cause of action shall accrue, and not afterwards, and the cause of action upon the note accrued on May 15, 1929. Counsel for defendants Wagner also claimed plaintiff was barred by the statute of limitations for the reason that under the provisions of the mortgage above mentioned and the date of payments of interest upon said mortgage, any right of action based upon the covenants of said mortgage was breached and plaintiff’s cause of action accrued more than 10 years prior to the filing of the bill of complaint. The trial court held with defendants as above indicated and dismissed the bill of complaint, with costs, as to the defendants Robert J. "Wagner and Hazel A. Wagner.
Under the settled law of this State, the mortgage and the note are to be construed together. Sutton v. Beckwith, 68 Mich. 303 (13 Am. St. Rep. 344); Interstate Construction Co. v. United States Fidelity & Guaranty Co., 207 Mich. 265; Grover v. Gratiot Macomb Development Co., 257 Mich. 26.
The trial court relied upon 3 Comp. Laws 1929, § 13989 (Stat. Ann. § 27.618), which provides that if there are two or more joint contractors, no one of them shall lose the benefit of the provisions of this chapter so as to be chargeable by reason only of any payment made by any other or others of them. It is settled in this State that in all matters not covered by this chapter the common law prevails. Atwood v. Gillett, 2 Doug. (Mich.) 206; Pennoyer v. David, 8 Mich. 407; Sigler v. Platt, 16 Mich. 206; Littlefield v. Dingwall, 71 Mich. 223; Patterson v. Collier, 113 Mich. 12 (67 Am. St. Rep. 440); Curtiss v. Perry, 126 Mich. 600; Borden v. Fletcher’s Estate, 131 Mich. 220; Brown v. Hayes, 146 Mich. 474. This statute has no application. The parties sought to be held here were not joint contractors and we are unable to find any provision in the statute expressly covering the question here involved.
It is immaterial that the remedy at law upon a note which accompanied the mortgage was barred. That would not affect the validity of the mortgage or the remedy upon it, Powell v. Smith, 30 Mich. 451, which remedy may be enforced although action on the debt secured or the evidence thereof is barred. 37 C. J. p. 703. When suit is brought on a mortgage note, such suit is governed by the applicable statute of limitations. Though the statute of limitations may have run against a mortgage note, that does not affect the validity of the mortgage lien given to secure the payment of the same, which -mortgage lien may be foreclosed at any time within 15 years after the last payment. Stringer v. Stevens’ Estate, 146 Mich. 181 (8 L. R. A. [N. S.] 393, 10 Ann. Cas. 337, 117 Am. St. Rep. 620). Payment upon the obligation by anyone who could be compelled to pay, Sutherlin v. Roberts, 4 Ore. 378; In re Frisby, 59 L. J. Ch. 94 (43 Ch. D. 106, 61 L. T. 632), or by anyone who has agreed in writing to pay the debt, Town of Huntington v. Chesmore, 60 Vt. 566 (15 Atl. 173), or by one who has assumed the debt, Cockfield v. Farley, 21 La. Ann. 521; 37 C. J. p. 1160, is sufficient to toll the statute. Payments made by a grantee who takes subject to the mortgage, but who does not agree to pay the debt secured by the mortgage, will not suspend the statute as to the mortgagor. 37 C. J. p. 1166.
“And payment of interest by a person who, as between himself and the mortgagor, is bound to pay it, although he is under no contract with the mortgagee to do so, are payments sufficient to prevent the statute from running.” 19 Halsbury’s Laws of England, pp. 94, 95.
In Bradshaw v. Widdrington, 71 L. J. Ch. 627 ([1902] 2 Ch. D. 430, 86 L. T. 726), Lord Justice Buckley said:
“Looking at it upon principle, in the first instance, apart from authority, it seems to me that all principle and common sense lead to the conclusion that it is sufficient that the payment be made by a person who, as between himself and the mortgagor, is bound to pay. You have to see whether the mortgagor has made an admission. That is the basis of it all. Whether the mortgagor has himself paid, or whether he has called upon somebody else and bound somebody else towards him to pay it, and that person has paid, equally, as it appears to me, the mortgagor has made an. admission. ’ ’
He then reviewed the authorities, Chinnery v. Evans, 11 H. L. Cas. 115 (11 L. T. 68); Harlock v. Ashberry, 51 L. J. Ch. 394 (19 Ch. D. 539, 46 L. T. 356); Lewin v. Wilson, 55 L. J. P. C. 75 (11 App. Cas. 639, 55 L. T. 410), and said:
“I agree that payment was not made by the mortgagor, James Edward Bradshaw. Whether it was made by his agent or not is another matter. For the present purpose I am assuming that William Bradshaw was not his agent. Assuming that he was not his agent, still it was made by William, who was, I think, as between himself and his father, the person who was bound to pay. Inasmuch as that was so, William’s payment, made in pursuance of his contractual obligations towards his father, was, as it appears to me, his father’s admission of liability.”
Lord Justice Collins, master of the rolls, said:
“William Bradshaw came under a liability to his father to pay the principal of the mortgage debt, and to pay the interest upon it as long as it subsisted. That his obligation continued so long as the mortgage subsisted, whether the father thought it subsisted or not, and the payment by the son in these circumstances under the contract with his father would, as it seems to me, by virtue of that contract enure as a payment in relief of the mortgagor on the still subsisting contract, and must be taken to have been made with his assent and by his authority under the contract. That contract would survive, although the mortgagor himself were dead. * * * I think, therefore, there was a payment which had all the essentials to render it an admission by the mortgagor that the mortgage was still subsisting.”
And Lord Justice Cozens-Hardy said:
“Although there was no contract between the mortgagees and the son, it is in my view quite sufficient that there was a contract between the mortgagor and the son, which, as between them, bound and entitled the son to make the payments of interest to the mortgagees, and, that being so, there has been a payment of interest which suffices to prevent the statute from running.”
Payments made by a grantee of the mortgagor who has assumed and agreed to pay the mortgage debt operate to suspend the statute as against the mortgagor. McLane v. Allison, 60 Kan. 441 (56 Pac. 747); Levy v. Police Jury of Pointe Coupee, 24 La. Ann. 292; Biddle v. Pugh, 59 N. J. Eq. 480 (45 Atl. 626); Harper v. Edwards, 115 N. C. 246 (20 S. E. 392); Hollister v. York, 59. Vt. 1 (9 Atl. 2); Forsyth v. Bristowe, 8 Exch. 715 (22 L. J. Ex. 255).
“If the debt secured by a recorded trust deed has been kept alive by a purchaser of the property who assumed, and for a sufficient consideration agreed to pay, the debt, a grantee of such purchaser takes subject to the deed of trust, and cannot plead the limitation to defeat foreclosure while the debt remains alive.” Murray v. Emery (syllabus), 187 Ill. 408 (58 N. E. 327).
The purchaser of real estate is bound to pay the purchase price. Such grantee who assumes and agrees to pay an outstanding mortgage upon the premises purchased, given by his grantor, thus protects himself by contract from the danger of paying twice. Such grantee who agrees to pay the mortgage has authority to keep it on foot by payments made thereon, not only as against himself, but also as against his grantor. 2 Wood on Limitations (4th Ed.), p. 1058. This is a part of his contract with his grantor. He is not such a stranger to the mortgage debt that he cannot, while he is the owner of the mortgaged property, extend and continue the same, not only as against himself, but as against the mortgagor. The grantor and mortgagor cannot evade being bound by a contract which he entered into with his grantee who assumed and agreed to pay the mortgage. Both or neither are bound. The mortgagor may not complain that his grantee has carried out, or attempted to carry out and perform, the contract in writing which, as grantee, he made with his grantor in relation to the payment of a part of the purchase price upon the outstanding mortgage against the premises.
It is settled by Home Life Ins. Co. v. Elwell, 111 Mich. 689, that payments made by a grantee of a mortgagor upon a mortgage, which the grantee did not assume and agree to pay, are not sufficient to toll the running of the statute of limitations as against the mortgagor. But, it is said:
“Where the payment is made by another, it has been held that such other must be one authorized to make a new promise on behalf of the debtor for the residue. Brown v. Latham, 58 N. H. 30 (42 Am. Rep. 568); Harper v. Fairley, 53 N. Y. 442; Littlefield v. Littlefield, 91 N. Y. 203 (43 Am. Rep. 663). And see 1 Wood, Limitations (2d Ed,.) § 101 et seq.”
The bill of complaint alleges, and it is not denied, that Baker and wife acquired ownership of the premises September 1, 1926, by deed from Wagner and wife, in which deed the said Philip O. Baker, grantee, assumed and agreed to pay the said mortgage here in question. By the stipulation of facts, it appears that payments of interest upon this mortgage were made October 2, 1926, April 2, 1927, October 22, 1927, April 28, 1928, October 24, 1928, April 29, 1929, November 2, 1929, May 6, 1930, October 9, 1930, April 22, 1931, October 9, 1931, April 7, 1932, October 25, 1932, September 28, 1933, and November 8, 1933. These payments were all made by Baker and wife for themselves and for their own benefit, and it is stipulated that such payments were not made by the Bakers as agent for the Wagners “unless the defendants, Robert J. Wagner and Hazel A. Wagner are legally bound by payments made on said mortgage and note without any authority from either Robert J. Wagner or Hazel A. Wagner.”
When Baker and wife accepted the deed from Wagner and wife, dated September 1,1926, in which deed Baker, as grantee, assumed and agreed to pay the mortgage in question, such agreement was an agreement made between Baker, as grantee, and Wagner and wife, the grantors. It constituted written authority upon the part of Baker to make the payments upon the mortgage indebtedness. And under all of the authorities, Wagner and wife are bound by such payments. Such payments were made in pursuance of an agreement made between the parties which expressly authorized and empowered Baker to make the payments in the place of the mortgagors, Wagner and wife.
Sutton v. Sutton, 52 L. J. Ch. 333 (22 Ch. D. 511, 48 L. T. 95), holds the English statute in relation to payments applies equally to actions to enforce a mortgage and actions against a mortgagor to enforce a covenant for payment of the mortgage money.
Wagner and wife contracted with Baker for their own benefit and advantage, upon ample consideration, to pay the note for them and must be held to have authorized and empowered Baker to do what they by their own contract and agreement in writing with him bound him to do. In making the payments made on the note and mortgage, Baker was doing personally only what Wagner and wife bound him in writing to do. Baker’s acts in making these payments must be treated and considered as the acts of Wagner and wife and the legal consequences held to be the same as if the payments had been made by defendants Wagner in person. Town of Huntington v. Chesmore, supra.
By the amended stipulation of facts, the last payment of interest was made November 8, 1933. It was made by Baker in pursuance of his agreement contained in the deed from Wagner and wife. The foreclosure proceeding having been commenced October 30, 1937, neither the six-year nor the ten-year statute of limitations operated to affect the right of plaintiff to a deficiency decree against the Wagners for the reason that the payments made by Baker were payments made by one authorized by Wagner and wife to make them and to make a new promise to pay the balance due upon the mortgage indebtedness.
The decree of the trial court is reversed, with costs, and the case remanded for further proceedings in accordance herewith.
Wiest, C. J., and North, and McAllister, JJ., concurred with Potter, J. | [
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Reid, J.
Plaintiff instituted this suit to recover damages for personal injuries and expenses because of a collision at an intersection. The verdict was in favor of' plaintiff for $5,000 damages. The. trial court granted defendant’s motion for judgment notwithstanding the verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff appeals.
About 4 p.m. on October 15, 1943, plaintiff was driving northwesterly on M-43, approaching the intersection of M-43 with US-31. The latter is a two-lane concrete highway, with two 22-foot concrete strips separated by a strip of land 23 feet wide, and is a through road as to each of its slabs. M-43 is a tarvia road about 18 feet wide extending in a northwesterly and southeasterly direction, while US-31 is nearly north and south in direction. Both slabs of concrete of US-31 continue directly across M-43 without concrete apron or concrete lateral extension. Tarvia aprons join the tarvia ‘o,f M-43 with the concrete of US-31.
Plaintiff testified that as she approached the easterly slab of US-31 and just before entering it, she brought her Mercury passenger automobile to a complete stop. The weather was rainy and misty. Plaintiff further testified that when her car had proceeded to a point on M-43 midway between the two slabs of US-31, she again came to a complete stop and observed the condition as to traffic on the westerly concrete slab, both to the north and to the south. At this position plaintiff could se,e northerly along the westerly slab of US-31 for a distance of about 1,000 feet, although about 500 feet northerly the slab curves somewhat toward the west. She testified that from her position she observed defendant’s truck for “a second or two.” She further testified that she observed it long enough to note its color and that its location was beyond the crossroad, and testified that she formed a judgment as to the distance of the truck from her and that its speed was 35 to 40 miles an hour. Such testimony embodied, four diverse elements of observation and implies much more than a mere fleeting glance. This case is therefore not to be governed by the rule as to fleeting glance laid down in Nelson v. Linderman, 288 Mich. 186, 190.
Plaintiff testified that when she made the second, stop above mentioned at the boulevard strip the defendant’s truck was in the curve and about 850 to 1,000 feet from her, that it was beyond the first crossroad northerly, the location of which crossroad she knew. She testified that as she was progressing through the intersection she was going about 5 miles an hour and that as she looked the second time and saw the truck, her car was then half way or more than half way across the westerly-lane and the truck was 150 to 200 feet away and coming at 70 miles an hour, ‘ ‘ coming like lightning. ’ ’ If, as she testified, the truck was then over 150 feet away, in order to come into collision with plaintiff’s car on the cement it must have traveled 8 times as fast as plaintiff’s car and must therefore have been going at the rate of at least 40 miles an hour at 'the time of the impact. Plaintiff’s testimony clearly indicates an acceleration of speed by defendant’s driver, and the weight of that testimony was for the jury. The jury could have well concluded that there was sufficient acceleration of defendant’s truck as -it left the curve to cause the collision and that without the acceleration the collision would not have occurred.
Plaintiff claims that her car was struck after it was off the concrete, and testified on that subject as follows: '
“Q. And where was your car when it was struck?
“A. My car was completely across the highway onto the tarvia, unless the back wheels might have been on the highway, but I don’t think so.
‘CQ. You speak of tarvia. M-43 is tarvia?
“A. That is right.'
“Q. And US-31 is cement, is that right?
“A. That is right.
CCQ. But where the road intersects, the tarvia ceases and the cement goes on through, isn’t that - right?
“A. That is right.
■ “Q. And so you say your car was on the tarvia, except what part?
“ A. The back wheels.
“Q. And they were where?
“A. ... On the cement.
“Q. That is your opinion, you say?
“A. Yes, that is my opinion. If it wasn’t clear across, it wasn’t more than the back wheels on the cement.”
The driver of defendant’s, truck testified that the truck could not be driven at more than 50 miles an' hour because it had a governor that was working at the time of the accident. He further testified that he was traveling not over 35 miles an hour, and was on the right side of US-31, and that upon observing plaintiff proceed-onto the concrete of the westerly slab he applied his brakes, and that as the front of plaintiff’s vehicle was approaching the middle of the slab he turned his vehicle to the right. His testimony is as follows:
“Q. You couldn’t have turned' after you hit her ?
“A. No.
“Q. You turned before you hit her, didn’t you?
“A. That is right, I told you that before.
‘ ‘ Q. Because you hit her with' the left corner of your truck.
“A. Right. So I would have had to have been turning. # * * * My truck * * * was turned enough so that with the position of the cars in that intersection, that I hit her with my left hand corner of the front of my truck. And my right corner wasn’t damaged to any great extent.”
Defendant’s driver was on the westerly side of US-31 before he began to turn to the right. He turned the truck to the right to such an extent that although the angle of the side lines of the two roads at the particular corner was an acute one (shown by a diagram attached to the record to be about 77 degrees). still only the left front corner of the truck came into collision with plaintiff’s vehicle.
Plaintiff’s car came to rest on the east side of the pavement, partly on the cement pavement and partly off the pavement, about 121 feet from the intersection in question. A witness who was hunting in a nearby field testified that when he heard the crash he turned around and saw plaintiff’s car spinning around in circles going in a southerly direction on the west lane of US-31.
Defendant argues that the location of plaintiff’s car after it came to rest following the collision indicates that the collision occurred on the cement of US-31 and in the intersection. ..The court should not substitute any conclusion arrived at from the location of the cars involved for the jury’s different conclusion, arrived at from a- consideration of all the testimony. Very important discussion on this subject occurs in Prove v. Interstate Stages, 250 Mich. 478, 490, and Bates v. Franson, 276 Mich. 79, 82. We cannot say that the jury could not have properly concluded that the impact of the left' front corner of defendant’s track caused the front wheels of plaintiff’s car to swing around to the left while the rear wheels (with frictional resistance to lateral push) retarded the rear of plaintiff’s car in a general motion toward the south, and that the heavy truck pushed the lighter car of plaintiff back onto the cement, US-31, while the truck was following the general direction into which the driver of the truck had swerved the truck, on into the field where it came to rest. It was for the jury to draw the inferences as to the place and manner of the collision within the limits of the testimony. The location of the plaintiff’s car as it came to rest after spinning around in circles is not to be taken as indicating the location of the collision as a matter of law and against the jury’s verdict.
It was the duty of defendant’s driver in approaching the intersection of two State trunk lines to have his truck under control. In endeavoring to bring his truck under control, he found that his brakes were ineffectual. He testified: “It was just like sliding nothing.” Defendant’s driver then turned the truck to the right. It was for the jury to determine the correctness of a conclusion that the collision would not have occurred if the truck had proceeded straight forward.
In forming her judgment that she could cross safely, plaintiff was not bound to anticipate that the brakes of defendant’s truck would not work and that the driver of the truck would swing the truck to the right. The jury could conclude that it was the discovery that the brakes were not working that caused whatever confusion there was on the part of defendant’s driver. If defendant’s driver was thrown into confusion by reason of a belated discovery that his brakes were ineffectual, plaintiff should not be considered responsible for such confusion.
There is testimony from which the jury could find that the collision took place outside of the intersection, after plaintiff’s car had cleared the intersection. Such finding* by the jury need not depend solely upon plaintiff’s testimony as to the location of her car at the time of the collision but could find support in the testimony of defendant’s driver as to his swerving* his truck to the right after he had been traveling near the west edge of US-31. The extent of such swerve toward the west could have been found by the jury to have been several feet, to bring about the contact with the left front corner of his truck which the truck driver himself described, without involvement of the right front corner.. The weight of the testimony, as we have often said, was for the jury.
Many collisions, at intersections have been considered by us. Each case must be considered on its own merits.
In view of the conflict in the testimony in the case at bar as to the point where the collision occurred, and in view of what has been said by this Court in Hale v. Rogers, 244 Mich. 69, 71, Swainston v. Kennedy, 253 Mich. 518, 520, 521, and. other cases, we' consider that the claimed contributory negligence of plaintiff was a matter for the jury.
Defendant compares the situation and acts of plaintiff in this case with the situation and acts of plaintiff’s driver in the case of Ann Arbor Construction Co. v. Russ, 312 Mich. 527, but the two cases in many respects are dissimilar.1 In the Ann Arbor Construction Co. Case, plaintiff’s driver was driving a truck which with equipment weighed approximately 8 tons and after observing defendant’s truck about 900 to 1,000 feet away, plaintiff’s driver started to cross the intersection, pnt his truck into “creeper” gear, and it took 3 or 4 seconds to get his car started up an incline, the front of the car being about 3 feet higher than-the rear, whereas in the case at bar plaintiff Wright’s passenger car was a Mercury coupe and the intersection was level.
There is sufficient testimony in this record to sustain a finding on the, part of the jury that def end-ant’s driver was guilty of negligence and that plaintiff was free from contributory negligence.
The judgment is reversed. The case is remanded to the trial court for entry of judgment for plaintiff on the verdict for $5,000. Costs to plaintiff.
Case, C. J., and Bushnell, Sharpe, and Boyles, JJ., concurred with Reid, J. | [
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Boyles, J.
Plaintiff, the owner of properties in McMillan township, Luce county, which are. separated by Pike lake, made a request in writing to the commissioner of highways of said township for proceedings under the statute to determine necessity and assess damages for a private road across certain lands of the 'defendant hunting and fishing club. Plaintiff has a home and store property on the north side of Pike lake and owns property on the south shore where she has some cabins for rent. The map included herein shows the physical aspects of the situation, and the proposed road. There is no road between plaintiff’s properties and the only method of travel between the two parcels has been across the lake by boat or on the ice, or around the lake on foot. As shown on said map, the proposed private road would allow plaintiff to travel by vehicle over land and around the west side of the lake across land owned by the defendant.
Upon the filing of plaintiff’s application appropriate proceedings were taken by the township commissioner of highways to open a private road across defendant’s land, under the applicable provisions of the Constitution and statute law. The Constitution (1908), art. 13, §3, provides:
“ Private roads may be opened in the manner prescribed by law; but in every case the necessity for the road and the amount of all damages to be sustained by the opening thereof shall be first deter mined by a jury of six freeholders or by not less than three commissioners, and such amount, together with the expense of proceedings, shall be paid by the person or persons to be benefited.”
The applicable statute provides the procedure for determining necessity for a private road and for determining the damages. This procedure was followed by the township highway commissioner, a jury of six freeholders was summoned and sworn, heard the testimony and rendered a verdict that such private road was necessary, with an assessment of the. damages. Under the authority of section 11 of the aforesaid act, the defendant appealed from said jury determination, to the circuit court for Luée county, where the ease was again heard by a jury of six freeholders in accordance with the requirements of said section 11. At the close of the testimony, the defendant moved for a directed verdict, decision on the motion was reserved by the court under the Empson act, and the case submitted to the jury. The jury returned a verdict of necessity, and fixed the damages at $50. Subsequently the court granted defendant’s motion for a directed verdict, and entered judgment of no cause for action.
Plaintiff appeals, claiming that under the applicable provisions of the Constitution and statute the jury is the sole judge of the facts and the law, and that in any event there was sufficient evidence to sustain the finding of the jury as to necessity. Neither party complains of the amount of damages. Under the circumstances, the evidence as to necessity must be viewed in the light most favorable to the plaintiff. It may be summarized as follows:
Plaintiff owns property on the north shore of Pike lake, where she lives and operates a small store. She also owns property on the opposite south shore where she has cabins for rent. The only way to reach the cabins on the south side from her home is by boat, across the ice, or by walking around the lake, a distance of over a mile. "Weather conditions sometimes make it dangerous or impossible to cross the lake by boat or on the ice. Frequently plaintiff finds it necessary to move furniture, household supplies and other things from the north side of the lake, to the cabins on the south side. This section of Luce county is sparsely settled, cutover or wild lands. The only road from a county highway to Pike lake is Luce county road'No. 414 over a common sand trail through 'cutover land. An old logging railroad grade runs from plaintiff’s home and store, south and west around Pike lake. For many years it has been cleared out from plaintiff’s home to the point where a lumber camp was located many years ago, now a State campground. From this point, the defendant hunting club cleaned out the grade to the south line of its property where it located a hunting camp. Plaintiff requested permission to clean out and use the grade across defendant’s land, for access to her property on the south side of the lake. This was refused and the instant proceeding for a private road was instituted. It was shown by testimony that there was a possibility of reaching plaintiff’s cabins by using fire lines from another direction, not entirely improved for use as roads. However, the use of these fire lines would not allow plaintiff to go by land between her home and the cabins except to travel county road 414_ and by fire lines to a considerable distance, and then only by improving a road on the fire lines at various places. Someone else owns the land bé tween the point where the proposed private road would end, on the south and east, and plaintiff’s property where the cabins are located. She testified, however, that she had permission to cross such land, although without any legally binding easement therefor. The circuit judge, in setting i aside the verdict, gave the following as the reason therefor:
1 ‘ Until such times as it is conclusively proved that petitioner was in a position to connect the road asked for across adjoining lands this would only create a cul-de-sac at best and no useful purpose -would be accomplished and undoubtedly it would seriously impair the use and enjoyment of defendant’s premises for the purposes for which it was purchased and improved. There could be no necessity for opening’ the requested private road at least until such time as it would appear that it could be connected and be of benefit to petitioner.
“Because of these facts it is premature and it is my conclusion- that this action is ill-timed and the petition of no force and no effect and that it and all proceedings heretofore taken thereunder are null and void. It is so found and determined by this court.”
We are not in full accord with this reasoning. If it is true, as claimed by plaintiff, that she has access to her property, having the consent of the intervening owner, she would be benefited by the proposed private road across the defendant’s land. Furthermore, - if plaintiff should be allowed to reach the property of the other owner, by using the private road here in question, there is no showing here that it would not be possible for plaintiff to acquire an easement across such other property, if or when the owner of such property should refuse permission to cross. We are not impressed that the reason given by the trial court is sufficient ground for setting aside the verdict of necessity. As the matter now stands, permission to cross its land having been refused by the defendant, it would be of no benefit to plaintiff if she did first obtain' a way across the intervening land of the other owner. It would be of no use to the plaintiff without the right to cross defendant’s land.
The defendant relies on People, ex rel. Ayres, v. Richards, 38 Mich. 214, to support its position. In-that case a jury was summoned .and sworn to determine the “necessity or propriety” of a private road, as a means of access to a village plat. Under the then-existing statute, private roads might be laid out on a showing of “necessity or propriety.” 1 Comp. Laws 1871, chap. 31. In effect, the Ayres Case restricted the right to a private road to a showing of necessity, not merely of a “propriety.” This is in-accord with the present statute law. The question here is whether there is testimony to support the verdict of the jury finding necessity. Waubun Beach Ass’n v. Wilson, 274 Mich. 598 (103 A. L. R. 983), also relied upon by defendant, was a bill in chancery to enjoin the defendants from closing a right of way or interfering with plaintiffs’ use thereof as a way of necessity. This Court held that a way of necessity had not been established by the proof.
In the case at bar, we do not review the ease de novo, on the issue .of fact, as in the Waubun Beach Case. Viewing the testimony in the light most favorable to the plaintiff, there is little room to dispute her claim that a road is a necessity whereby she can go by vehicular travel by land, between her home north of the lake and her rental cabins on the south side. She testified:
•' ‘ There are no roads on the east side of Pike lake that would enable me to reach my property and hone coining np from the south. To nay knowledge ther'e are none from the west that hit Pike lake. There is a fire line there.
“Q. But you don’t call that a highway?
“A. No, I don’t think a fire line is a road.”
She further testified that it is impossible to drive on the fire lines at times of the year, that if she went that way she would have to maintain part of a road herself; that it would be about 8 or 10 miles around, to her cabins. An employee of the Luce county road commission testified that some of the fire lines were good road and some were not, and that he could not recall any attempt by the county road commission to maintain roads on fire lines — that it did not improve fire lines, as a general rule. The superintendent of the Lake Superior State forest testified that the lands around Pike lake were included in the State forest, that there was a network of fire lines but there was no attempt to maintain them as roads, except in emergencies with certain trucks or tractor. He also testified there was ho road south or east of Pike lake. We find ample testimony in the record to support the finding by the jury, of necessity for the private road in question. Consequently it is not necessary to decide whether the jury is the sole judge of the facts and law.
The judgment is set aside and the pase remanded for entry of judgment on the verdict, with costs to appellant.
Carr, C. J., and Butzel, Bushnell, Sharpe Reid, North, and Dethmers, JJ., concurred.
Act No. 283, chap. 9, Pub. Acts 1909 (1 Comp. Laws 1929,
3 Comp. Laws 1929, § 14531 et seq., as amended by Act No. 44,. Pub. Acts 1939 (Comp. Laws Supp. 1940, § 14531, Stat. Ann. and Stat. Ann. 1946 Cum. Supp. § 27.1461 et seq.).—Reporter. | [
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Cask, C. J.
Defendant was tried in circuit court on an information charging assault with intent to do great bodily harm less than the crime of murder, in violation of Act No. 328, § 84, Pub. Acts 1931. (Comp. Laws Supp. 1940, § 17115-84, Stat. Ann. 1946 Cum. Supp. §28.279). Said information alleged that the assault was made by means of a dangerous weapon, to-wit, a 12-gauge shotgun, the same being loaded and cocked. The jury returned a verdict of the included offense of felonious assault and defendant was sentenced accordingly. He has appealed, alleging that errors occurred in the course of the trial that require a reversal of the conviction and the' setting aside of the sentence.
One of the police officers who arrested defendant testified, over objection by defendant’s.counsel, that following the arrest he.smelled liquor on defendant’s breath. It is argued by counsel for defendant that, inasmuch as defendant was not charged with being drunk or disorderly, the testimony in question was not competent and tended to bring into the case an irrelevant and incompetent issue. With this contention we are unable to agree. The offense charged in the information, as well as the lesser and included offense of which defendant was convicted, involved a specific intent as an essential element. Presumably the testimony indicating that defendant had been drinking was offered for such bearing as it might legitimately have on defendant’s mental condition, and on the reason or reasons for his conduct as disclosed by the testimony of the various witnesses in the case. The testimony was admissible for the purpose indicated. The general rule is stated in 22 C. J. 8. p. 947, as follows:
“Where the existence of a particular purpose, motive, or intent is a necessary element of the crime charged, 'evidence of intoxication is relevant and admissible to assist the jury in determining accused’s purpose, motive, or intent, or in fixing the degree of the crime.”
Likewise, in 20 Am. Jur. p: 317, it is said:
“All evidentiary circumstances which are relative to, or tend to shed light on, the motive or intent of the defendant or which tend fairly to explain his actions are admissible in evidence against him, although they may have occurred previous to the commission of the offense.”
In offering the testimony the prosecuting attorney disclaimed any attempt to show that defendant was actually drunk at the time of the alleged assault. It was obviously the people’s theory, however, that defendant’s conduct was not that of a wholly normal individual but was of such character as to indicate that defendant was mentally disturbed and irritable. Testimony of the character in question was proper to assist the jury in determining what offense, if an/, defendant had committed. Thus, in People v. Droste, 160 Mich. 66, testimony was introduced indicating that defendant had been drinking prior to the commission of the homicide for which he .was tried. The information in the case charged the crime of murder. The trial court, in charging the jury, submitted also the included offense of manslaughter, of which crime defendant was convicted. In holding that the trial court was warranted in submitting the case on the theory of manslaughter, as well as that of murder, this Court made reference to the matter of defendant’s possible intoxication, indicating that the jury might, under the proofs, have properly determined that defendant’s mental condition was such as to render him guilty of the lesser offense. It is quite possible that in the ease at bar the jury was influenced by a similar consideration in convicting defendant of felonious assault rather than the more serious crime with which he was charged in the information.
In People v. Sehorn, 116 Cal. 503 (48 Pac. 495), the defendant, charged with the crime of murder, was convicted of manslaughter. It was there held that testimony of a witness that defendant’s appearance indicated he had been drinking was properly admitted, the court citing prior decisions in support of its conclusion. There was no error in the case at bar in the ruling of the trial court admitting the testimony tending to show that defendant had been drinking prior to the alleged assault.
Error is also alleged because the prosecuting attorney, in cross-examining the defendant, brought out that defendant came from Tennessee, that the possession of firearms was customary in that State, and that as a child defendant had a gun. As before noted, the information filed against defendant alleged that the assault was committed with a shotgun. It may be assumed the questions of the prosecutor were intended to show that defendant had some familiarity with the weapon which, according to his own testimony, he had in his hands at the time of the alleged offense. It is suggested by counsel for defendant that bringing out that defendant was from Tennessee naturally had a tendency to prejudice the jury. There is nothing in the record, however, to support any such suggestion. Moreover, no objection was made to the questions of the prosecutor with reference to the matter. As suggested we do not think that such an objection would have been well founded. In any event, failure to make it precludes the raising of the question on appeal. It is a general rule that failure to raise a question in the trial court precludes consideration of such question by an appellate court. People v. Stimer, 248 Mich. 272 (67 A. L. R. 552); People v. May, 199 Mich. 574. In 23 C. J. S. p. 512, et seq., it is said:
“Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable, or to move to strike it out after its admission, giving a reason for the motion to strike out such evidence or to request or ask for an instruction as to its effect, or failure to insist on and obtain a ruling on an objection made, generally constitutes a waiver of the right to object and cures the error, if any.”
The people offered as a witness Dr. Frank Broadwater, who testified that bn the night of the commission of the alleged offense, while seeking to locate a certain number on the street where defendant lived, he went, by mistake, to defendant’s house, and that when the witness was about half way between the sidewalk and defendant’s apartment,-defendant came running out the door with a shotgun. The witness testified, in substance, that he had never seen defendant before, and that the latter inquired if the witness was a “cop.” He further testified that defendant kept the gun pointed at the knees of the witness, and that defendant moved the gun with the movements of the witness, keeping it pointed as indicated. The doctor also testified that after'he had started hack towards his car he heard a shot behind him. The witness did not claim, however, that the gun was discharged, intentionally or otherwise, at him.
It is urged on behalf of defendant that the reception of the testimony of Dr. Broadwater was prejudicial to defendant, and that such testimony was not competent because the doctor was not a res gestae witness. The testimony of the witness Seay indicates that the incident, to which Dr. Broadwater testified, occurred some 10 or 15 minutes prior to the alleged assault. It is not questioned that the gun with which defendant was armed at the time of his conversation with the doctor was the same weapon claimed to have been used in the offense of which he was convicted. However, whether' the doctor is regarded as a res gestae witness' is .not material. The testimony that he gave tended to throw light on defendant’s mental condition at the time he made the alleged assault charged in the information, and had a bearing on the intent with which defendant acted. The .testimony of the doctor justified the inference that defendant was in a belligerent frame of mind, and that he was anticipating that police officers might be looking for him.
In People v. Owen, 154 Mich. 571 (21 L. R. A. [N. S.] 520), defendant was convicted of assault with intent to kill and murder. Testimony was introduced as to prior threats claimed to have been made by defendant, and also as to his conduct. Such testimony was offered as bearing on the question of intent. In holding that there was no error in receiving such testimony it was said:
“Itfis urged that there was error committed in permitting evidence that the defendant went to the house of Ms father- and mother-in-law, where his wife was staying, and assaulted them with a deadly weapon, and also of previous threats made against his wife and child. That he went'there, in the expectation of finding his wife, is clear. His conduct and threats on that occasion were competent. The witness testified that‘the defendant wanted to kill the whole family. His declarations before the crime, indicating enmity towards his wife and child and her parents, and that he was contemplating an assault upon some one of the family, are admissible. Underhill on Criminal Evidence, p. 394; Parker v. State, 136 Ind. 284 (35 N. E. 1105); State v. Pierce, 90 Iowa, 506, 511 (58 N. W. 891); People v. Haxer, 144 Mich. 575.”
See, also, People v. Reycraft, 156 Mich. 451.
The record does not affirmatively show that objection was made to the testimony of Dr. Broad-water. If not, defendant is in no position to urge the matter in' this Court. However, we think the testimony was competent and that there was no error on the part of the trial court in receiving it.
It is further urged in defendant’s behalf that the evidence in the case did not support the verdict, and that the trial judge should, on his own motion, have directed a verdict of not guilty. This claim necessitates consideration of the testimony in the case. 1 On behalf of the people, Officer Faust, on whom the assault was alleged to have been committed, testified that shortly before 9 o’clock in the evening, on the date alleged in the information, a call came into police headquarters in the city of Adrian, to the effect that there was a' disturbance, or shooting, in a certain locality. The witness, with another officer, went to the neighborhood in question, made some inquiries, and, as a result, approached the residence of the defendant. The witness testified that as the officers stopped their car opposite the.entrance to defendant’s apartment they could see two men sitting in a room therein; that the officers approached the door of such apartment and when a few feet from it, one of the men got np and reached for a gun which was leaning against the wall; that defendant started towards the door with the gun, pushing it open with the barrel just as the witness arrived at the door. The witness further testified that the gun projected past the door, that he grasped it and pushed it aside, and that defendant made a statement to the effect that the gun was loaded and cocked. Thereupon the two officers took the gun away from defendant and placed him under arrest. The testimony of Officer Faust was corroborated in its main features by that of the other officer. It should be noted further that Officer Faust testified positively that the gun was pointed at his side.
Defendant did not deny the possession of the gun but claimed that he did not assault the officer on the occasion in question. It was his claim, in substance, that prior to the time the officers came to his apartment he had been celebrating Armistice Day by discharging his shotgun, that just before the officers reached his door he concluded that he would go outside and resume his celebration, that he started to do so, and encountered the officers at the door. His claims as to his conduct, and his lack of intent to make any assault, were placed before the jury, and in certain respects were corroborated by his witnesses. As a result the jury had before it conflicting claims as to what occurred,. It is apparent from the verdict rendered that the4 jury accepted the version of the occurrence given by the witnesses for the people. In view of the condition of the record, the case was properly submitted to the determination of the jury. It was not the duty of the trial court to direct a verdict of acquittal. People v. Veitenheimer, 229 Mich. 409. Defendant’s conviction was supported by the evidence.
Defendant’s claim that the specific intent necessary to constitute the offense of which he was convicted could not have been found by the jury because no threats were shown to have been made by him to Officer.Faust is without merit. A threat may be made by conduct as well as by words, and certainly pointing a loaded gun at one, under the circumstances indicated by the testimony of the people’s witness, may well be regarded as a threat, and as indicating an intent to injure.
Defendant further contends that the court should have charged the jury with reference to the rights of defendant in his home. Defendant did not claim, however, that he made a justified assault on the officers in order to protect his home, his family, or himself. Rather, he denied any assault whatever, and claimed that he did not know the officers were’ approaching his apartment until he had opened the door. It may be noted, also, that the officers did not arrest defendant until after the alleged assault and it is not shown that they entered his residence. Moreover, defendant made no specific written request to charge. In consequence, he is not now in position to complain with reference to the failure of the trial court to cover the specific point in question, assuming that such would have been proper. People v. Barringer, 311 Mich. 345. It should be noted, also, that the record does not contain the charge of the court as actually given.
Other questions referred to in the briefs of counsel do not require specific consideration. They have been examined and found to be without merit. There was no reversible error in the conduct of the trial, and the conviction and sentence are affirmed.
Butzel, Bushnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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T. M. Burns, J.
Plaintiff appeals from a January 14, 1976 order of summary judgment granted the defendants for failure of plaintiff to present a genuine issue of material fact. GCR 1963, 117.2(3).
Plaintiff fell after slipping on a piece of metal she claims came from defendants’ shed, which had fallen down some time before plaintiff’s fall. Defendants claimed that the piece of metal did not and could not have come from their shed. The trial court agreed with the defendants.
Factual and proximate causation are material facts in a negligence action. Plaintiff alleged that she slipped on a piece of metal that came from defendants’ shed. Defendants denied that the piece of metal came from their shed. There was thus a genuine issue. The trial court’s ruling could not have been made without the finding of fact that the piece of metal did not. come from the defendants’ shed. Such fact-finding is improper and reversibly erroneous when ruling on a motion for summary judgment under GCR 1963, 117.2(3). Baker v City of Detroit, 73 Mich App 67; 250 NW2d 543 (1976).
We therefore reverse the order of the trial court and remand this cause for trial.
Costs of this appeal to the plaintiff.
Beasley, J., concurred. | [
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V. J. Brennan, P. J.
On March 11, 1974, plaintiff William Moors, Inc., filed a complaint in Oakland County to foreclose a mechanic’s lien against defendant, Pine Lake Shopping Center (hereafter Pine Lake), for labor and material provided in construction of a building on Pine Lake’s property. By an order of January 22, 1975, defendant Louis Pivetta & Son, Inc. (hereafter Pivetta), was added as a party. Pivetta was subcontractor for Princeton, primary contractor to owner Pine Lake.
On February 10, 1975, Pivetta filed a cross-complaint against Pine Lake in order to foreclose a mechanic’s lien claimed by it for furnishing certain masonry, labor and materials used in the erection of a building on Pine Lake’s property. We deal only with Pivetta’s lien claim in this case.
On March 12, 1975, Pine Lake filed a motion for summary judgment, alleging, first, that Pivetta did not perfect its mechanic’s lien due to a failure to serve owner, Pine Lake, with any notice of intent to claim a lien, and, second, that Pivetta failed to serve Pine Lake with any statement of account and lien in accordance with the statute. Pivetta answered, accusing Pine Lake, in concert with Princeton, of fraudulently representing that Princeton was the true owner of the property in question.
Pivetta thus claimed that Pine Lake was estopped from asserting any failure by Pivetta to comply with the statutory requirement for notice. He further answered that proper service was made on Princeton of its statement of account and claim of lien. On September 5, 1975, Oakland County Circuit Judge Robert L. Templin granted Pine Lake’s motion for summary judgment.
On appeal, we must decide if the trial court improperly granted summary judgment on the basis of Pivetta’s failure to serve Pine Lake with proper statutory notice where Pine Lake’s misrepresentation of ownership may well create a valid estoppel.
The statute relating to mechanic’s liens in Michigan provides that notice be served on the owner by the party intending to claim a lien, informing the owner of this fact:
"Every person who shall, in pursuance of any contract, express or implied, written or unwritten, existing between himself as contractor, and the owner, part owner or lessee of any interest in real estate, build, alter, improve, repair, erect, ornament or put in, * * * and every person who shall be subcontractor, laborer, or material man, perform any labor or furnish materials * * * shall have a lien * * * upon the entire interest of such owner, * * * to the extent of the right, title and interest of such owner, * * * and also the extent of any subsequent acquired interest of any such owner, * * * such lien for such material or labor or leased equipment so furnished, shall attach to all of said buildings, * * * together with the land * * * Provided, * * * any person, firm or corporation furnishing materials or performing labor of any kind * * * shall within 90 days after furnishing the first of such material or performing the first of such labor * * * serve on the owner * * * personally or by mailing by certified mail, return receipt demanded, * * * a written notice, which notice shall be such as will inform the owner, * * * of the nature of the materials being furnished, or labor being performed, * * * and * * * that such person * * * furnishing materials or performing labor will claim a lien upon such premises for any amounts unpaid for such materials so furnished or labor performed”. MCLA 570.1; MSA 26.281.
Decisions of this Court properly recognize that, regarding this particular provision for notice, the law should be strictly construed to the point when the lien attaches. See Spartan Asphalt Paving Co v Tri-Cities Construction, Inc, 68 Mich App 305, 308; 242 NW2d 565 (1976), Bob Ryan, Inc, v Walker Drywall Co, 64 Mich App 497, 500; 236 NW2d 115 (1975), J Altman Companies, Inc v Saginaw Plumbing & Heating Supply Co, 42 Mich App 747, 750-753; 202 NW2d 707 (1972). One of the judges on the present panel wrote the decisions in Altman. We now affirm the principle of strict construction expressed there. We believe that the notice requirement of the statute was clarified and strengthened by the 1929 amendment.
However, we all believe as well that strict compliance with the notice provision does not equate with allowing owners to purposely transform a statutory requirement intended to protect them from unanticipated lien claims into a tool to prevent honest lien claimants from asserting their own statutory rights. We do not feel the law should be interpreted to permit such practice.
Ample precedent prior to 1929 exists to support the principle of estoppel in similar circumstances. Waters v Johnson, 134 Mich 436; 96 NW 504 (1903); Peninsular Stove Co v Crane, 226 Mich 130; 197 NW 693 (1924). In Waters, plaintiff entered into a contract with Alva M. Johnson to furnish labor and materials for improving and repairing a house and barn situated on Johnson’s property. Defendant Johnson sold the property to defendant Stevenson. In claiming his lien, plaintiff served notice upon defendant Johnson, even though defendant Stevenson had owned the house and bam for more than a month prior to the time the lien was claimed.
The Michigan Supreme Court found that the statute referred to the owner of the property at the point that the claim of lien was made. They found plaintiff had not complied with the statute:
"What, then, are the consequences of misnaming in the claim, and of failing to make service upon, the owner whose property it is sought to take? The statute, in our judgment, imperatively requires that said owner be named in the claim”. Waters v Johnson, supra at 440.
However, the Court found that when the failure to name the owner was due to the actions of the owner, the owner would not be able to assert this error as a means to defeat a valid lien by plaintiff:
"It follows, therefore, that when the lien claimants proceed against a certain person as the owner, and positively swear in their claim that he is the owner, they will not be permitted to excuse this mistake by pleading ignorance, unless, as hereinafter pointed out, that ignorance is justly chargeable to the owner himself. ” (Emphasis added.) Id, at 440.
"We are bound, therefore, in disposing of this case, to determine whether it is possible for complainants to make a case which would excuse the mistakes pointed out. We have already determined that these mistakes would not be excused simply because complainants did not know that defendant Stevenson was the owner of the property. If, however, defendant Stevenson so conducted herself as to lead complainants to believe that defendant Johnson continued the owner of said property, she would be estopped from taking advantage of their position new. "(Emphasis added.) Id, at 441.
Much the same situation obtains in the present case. Pivetta claims a lien. Pine Lake as owner answers that it was not served with proper notice as required by statute. Pivetta rejoins that it was led by Pine Lake to believe that contractor Princeton was the present owner. The parallel between Waters and this matter is obvious; and the conclusion might well be the same — that is, finding a basis for an estoppel. The trial court foreclosed any opportunity to explore the applicability of this recognized defense.
Further, recent authority from this Court has considered an estoppel claim under the mechanic’s lien statute. Poole-Dickie Lumber Co v Strother, 60 Mich App 321, 324; 230 NW2d 420 (1975). In Strother, defendant mortgagee bank had made unauthorized representations leading plaintiff to believe he still possessed a valid lien claim against both the bank and defendant owner, despite a prior waiver. On appeal, plaintiff argued for estoppel based on an agency relationship between the mortgagee bank and defendant owner. The Court found no estoppel, ruling that agency between the bank and defendant owner was not pleaded at trial and so could not be used to defeat the prior waiver on appeal. Unlike Strother, the present matter involved no waiver. Consequently, we believe finding an estoppel here would have been an available legal option for the trial court. We feel it should have considered the possibility.
In Altman, we found that sustaining a lien claim did not compromise strict compliance where defendant owner had actual knowledge of plaintiff’s lien, even though notice was not personally served on him. J Altman Companies, Inc v Saginaw Plumbing & Heating Supply Co, supra at 753. We found no violence there to the statutory intent that owners be protected against lien claims of which they are not adequately aware. We feel that were Pivetta to establish below that Pine Lake had fraudulently conspired with Princeton to deceive Pivetta concerning ownership, the same principle recognized in Altman would apply as easily in this case. Nor do we find reason to open a potential avenue of unfair dealing between parties in this already overly complicated area of the law.
Reversed and remanded for proceedings in conformity with this opinion.
Bashaka, J., concurred in the result only.
"No person shall have a right to claim a lien as in this act provided, unless and until he shall have served a notice as in this section provided, and proof of the service of such notice shall be attached to the verified statement or account when filed with the registrar of deeds as provided in section five [5] of this act.” (Emphasis added.) 1929 PA 264.
In Peninsular Stove Co v Crane, defendant building owner contested plaintiffs mechanic’s lien for materials and labor furnished to install a heating plant on grounds that the claim was filed against "Haley-Kennedy Company, a partnership” as contractor, rather than the later incorporated entity "Haley-Kennedy Company, a corporation”, as contractor. Defendant owner had purchased the building from the contractor, who was deeded the property by Elward, the party for whom the original construction was undertaken. Plaintiff completed his work while the construction company was still a partnership. However, by the time he filed his lien, the partnership had subsequently reorganized into a corporation.
The Michigan Supreme Court rejected defendant’s argument, stating that defendant was estopped from claiming the distinction between partnership and corporation for purposes of defeating plaintiff’s lien:
"When Elward deeded to the construction company it was a copartnership. All title defendant has is from that source. After reorganizing as a corporation the construction company continued business in the same name, completed the building, and conveyed the fee of this property to defendant. Both he and it were estopped from questioning the validity of the lien by reason of the claimed reorganization without actual notice to plaintiff.” Peninsular Stove Co v Crane, supra at 138.
Though not as similar factually as the Waters case, this decision clearly demonstrates the same principle and represents equal authority to employ an estoppel in the present matter. | [
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Per Curiam.
In April of 1976 petitions were circulated in plaintiff school district seeking the recall of certain members of the school board. In June of 1976 the petitions were submitted to the Roseville city clerk who certified the petitions and filed them with the Macomb County Clerk. Plaintiff school district then commenced an action for injunctive relief against the county officials to prevent the processing of the recall petitions and the calling of a recall election.
Following several hearings and motions, a group known as "Roseville Interested Parents”, the appellants in this case, were allowed to intervene. The trial court then found that the recall petitions did not comply with the applicable statutes in that the petitions should have been submitted to the Roseville School District and not the City of Rose-ville and that the petitions were defective because the headings did not contain within them the name of the city or township where circulated. The trial judge then entered a judgment permanently enjoining the county officials from processing the recall election petitions. Appellants appeal as of right challenging the findings of the trial court.
We first address the issue of whether the petitions were defective due to the failure to list the city name in the headings. The pertinent statutes provide:
"The petitions for the recall of an officer shall be in the size and print types required by section 544c, shall be printed, shall state clearly the reason or reasons for the recall which reasons may be typewritten, shall contain a certificate of the circulator which may be printed on the reverse side of the petition, and shall be in a form prescribed by the secretary of state.” MCLA 168.952; MSA 6.1952.
"The county clerk shall retain blank forms of recall petitions for use by the electors in the county. A person may print his own recall petitions if those petitions comply substantially with the form prescribed by the secretary of state.” MCLA 168.952(a); MSA 6.1952(1).
Appellants have provided us with the following heading form prescribed by the secretary of state:
"We the undersigned registered and qualified voters, and residents of the City/Township (strike one) of -, in the County of_, State of Michigan, hereby petition for the calling of an election to recall-from the office of_, for the following reason or reasons:”
Appellants contend that the form that was used substantially complies with the form prescribed by the secretary of state. It reads:
"We, the undersigned qualified and registered electors of the Roseville School District in the county of Macomb, state of Michigan, do hereby petition for the election to recall - from the office of school board member of the Roseville School District for the following reasons * * * .”
Due to the absence of a factual record we are unable to say for sure that appellants’ form satisfies the substantial compliance requirement of § 952(a) of the "Michigan election law”. We do find, however, that the failure to list the city name in the heading does not render the petition defective per se.
In Keyes v Secretary of State, 360 Mich 610; 104 NW2d 781 (1960), our Supreme Court indicated that despite a statute requiring the designation of a city or township in the caption of a petition, the failure to so specify was not fatal so long as the city or township was indicated in some manner on the petition; the crucial requirement being that the circulation occurred within a single city or township. The Court stated:
"It appears from the testimony taken before Judge Coash that a number of petitions were rejected by the canvassing board because of failure to show in what township or city the circulation thereof occurred, and other petitions were rejected because it appeared that they were circulated in more than one township, or in a township and adjoining city. In other instances the caption of the petitions failed to state in what township or city they were circulated, and the jurats thereto made reference to a non-existent city or township. It is clear that these petitions did not comply with the statute, and the board was right in rejecting them.
"In some instances in the present case, signatures were credited to plaintiff, although the heading on the petition sheets did not specify a city or township in which the circulation had occurred, if the jurat named a single city or township as the place of circulation. It will be noted that in each such instance the face of the petition considered in its entirety fairly indicated the place of circulation. Under such circumstances, we think the holding of the canvassing board was correct, and the petitions were properly considered.” 360 Mich 610, 615, 619.
Likewise in the present case, if in fact the school district is coterminous with the city, Keyes would indicate that the petitions are not fatally defective because the place of circulation (within the city) is fairly indicated.
In the instant case, the trial court found that the petitions did not substantially comply with the statute and thus made no finding as to whether the petitions were circulated within a single city. Additionally, it cannot be determined from the record whether the jurats of the circulated petitions stated that the petitions were circulated only in a single city. Under Keyes this would be sufficient to sustain a petition despite the lack of a named city in the heading.
The second issue involves the interpretation of § 961 of the "Michigan election law”. The pertinent provisions were amended on April 2, 1976. Prior to April 2, 1976, a petition for recall would be filed with the clerk of the governmental unit which employed the official sought to be recalled. This same clerk would then check the signatures on the petition and conduct the election if the petitions were found to be sufficient. The present statutes provide that all recall petitions are to be filed with the county clerk after they have been submitted to the clerk of the "governmental unit appearing in the heading of the petition”. The county clerk then conducts the election.
The question that we must decide is, what is meant by the phrase "governmental unit appearing in the heading of the petition”? Appellants claim that the term "governmental unit” means city or township. It further submits that the 1976 amendments were aimed at segregating the section of government involved in the controversy from the handling of any aspect of the recall thereby prohibiting the school district from certifying the petitions. Appellee contends that the amendments were enacted to only change the officials who processed the recall elections and that in the present case the petitions should have been submitted to the school district for certification. We reprint the applicable statutes as they presently read and as they previously read:
"Petitions demanding the recall of any elective county commissioner, or township, city, village, or school official shall be filed with the county clerk of the county in which the largest portion of the registered voters in the electoral district reside.” MCLA 168.960; MSA 6.1960, as amended.
"Petitions demanding the recall of any elective county, township, city, village or school official shall be filed with the clerk thereof, or, if there is no such officer in such governmental unit, then with the officer whose duties correspond to those of the clerk; petitions demanding the recall of the clerk or corresponding official shall be filed with the chief executive officer of such unit of government, except that in case it is sought to recall the county clerk, the petitions shall be filed with the presiding or senior judge of probate.” MCLA 168.960; MSA 6.1960 (now repealed).
"Before a recall petition is filed the petition shall be submitted to the clerk of the governmental unit appearing in the heading of the petition. The clerk shall compare the signatures of the petition with the registration records on file in his office and shall within 15 days after receipt of the petition attach to the petition a certificate showing the number of signers on each petition sheet who are registered electors of the governmental unit. The certificate shall be on a form approved by the secretary of state.” MCLA 168.961; MSA 6.1961, as amended. (Emphasis supplied.)
"Whenever petitions signed as provided in sections 954, 955 or 956 of this act are filed against any officer, the official with whom such petitions are hied shall immediately cause the same to be checked with the registration lists to ascertain whether the signatures to said petitions are those of registered electors as stated therein and, if the official with whom such petitions are filed is not the custodian of the registration lists, then he shall have access to said lists for the purpose of making such check * * * MCLA 168.961; MSA 6.1961 (now repealed). (Emphasis supplied.)
Our job is to try to determine the Legislature’s intent in amending the statute. We note that the original § 960 contained similar language as the phrase in question in §961. In that instance the phrase "governmental unit” referred to the unit involved in the recall petition. We give it the same interpretation and hold that the trial court was correct in finding that the petitions herein involved were submitted to the incorrect party.
If the Legislature had intended that petitions be submitted to the city or township clerk, that language could have easily been employed. Section 958 contains such phraseology:
"A petition sheet shall be circulated only in the city or township listed in its heading. For recall of a village officer the petition shall be circulated only in the village and shall be signed by registered electors of the village.” MCLA 168.958; MSA 6.1958. (Emphasis supplied.)
Appellants provide us with the answer to the question within the context of their brief. We quote that section of their brief, which supplies the interpretation of the term "governmental unit”.
"The Michigan Election Commission specialist, James O. Chapman, attached to his letter of June 21, 1975, the administrative interpretation of Act 66 of the Public Acts of 1976. In the first page of that memorandum under the heading, "Forms,” the statement is made.
" '.The county clerk will not be responsible for maintaining a supply of recall petition blanks. The form of these petitions have been prescribed by the Secretary of State. The Election Division will supply samples of these forms. It will be the responsibility of the county clerk to order the necessary forms for distribution. Two different forms are necessary, one for villages and one for all other governmental units. These include city, township, county commissioner districts and school district.’ ”
In sum, we find that the Legislature’s retention of the phrase "governmental unit” was intentional and that the thrust of the amendment was to change the election procedure, not the certification of petitions. Accordingly, we affirm the trial court in granting the injunction.
No costs, a public question being involved. | [
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Per Curiam.
We are asked to decide whether the Uniform City Income Tax Ordinance, MCLA 141.601 et seq.; MSA 5.3194(11) et seq., which was adopted by plaintiff imposes criminal liability on corporate officers for the failure of the corporation to file a withholding return and pay the monies withheld.
During the latter part of 1971 appellant held the office of secretary in a now defunct corporation which had transacted business in Detroit. At a bench trial in Recorders Court, Traffic and Ordinance Division, appellant was found guilty on two counts: 1) wilful failure, neglect or refusal to file the return for the third quarter of 1971, MCLA 141.699(a); MSA 5.3194(109)(a), and 2) wilful failure to pay the tax withheld for the latter half of 1971, MCLA 141.699(c); MSA 5.3194(109)(c). In addition, the corporation pled no contest to charges of failing to file withholding tax returns for the third quarter of 1971 and failing to pay to plaintiff taxes withheld for the third and fourth quarters of that year. Her appeal was affirmed by the Wayne County Circuit Court; and leave to appeal was denied by the Court of Appeals. However, the Supreme Court, 394 Mich 793 (1975), granted leave, remanding the case to this Court as on leave granted. GCR 1963, 865.1(7).
As would be expected, resolution of this case turns on the language of the statute and the guidance provided by certain well settled rules of statutory construction.
The Uniform City Income Tax Ordinance provides in pertinent part:
"(2) 'Person’ means a natural person, partnership, fiduciary, association, corporation or other entity. When used in any provision imposing a criminal penalty, 'person ’ as applied to an association means the parties or members thereof, and as applied to a corporation, the officers thereof.” MCLA 141.608(2); MSA 5.3194(18)(2). (Emphasis added.)
"Sec. 99. Each of the following violations of this ordinance is a misdemeanor and is punishable, in addition to the interest and penalties provided under the ordinance, by a fine not exceeding $500.00, or imprisonment for a period not exceeding 90 days or both:
"(a) Wilful failure, neglect or refusal to file a return required by the ordinance.
"(b) Wilful failure, neglect or refusal to pay the tax, penalty or interest imposed by the ordinance.
"(c) Wilful failure of an employer to withhold or pay to the city a tax as required by the ordinance.
“(d) Refusal to permit the city or an agent or employee appointed by the administrator in writing to examine the books, records and papers of a person subject to the ordinance.
"(e) Knowingly filing an incomplete, false or fraudulent return.
"(f) Attempting to do or doing anything whatever in order to avoid full disclosure of the amount of income or to avoid the payment of any or all of the tax.” MCLA 141.699; MSA 5.3194(109). (Emphasis added.)
Inexplicably, counsel for both parties have premised their appellate arguments on the assumption that the term "person” nowhere appears in any section of the statute imposing criminal penalties. As the foregoing extract indicates, however, both sides are mistaken.
This belated discovery takes the wind out of the sails of plaintiffs argument for it plainly demonstrates that the Legislature did consider the extent to which corporate officers should be subject to criminal penalties for violating the statute. By utilizing the term "person” only once in its principal criminal provision, namely, MCLA 141.699(d); MSA 5.3194(109)(d), the Legislature delineated a particular instance in which the statute inflicts criminal sanctions on the officers of a corporation. When subsection (d) of MCLA 141.699 is interpreted by reference to two other provisions of the statute, the legislative intent becomes obvious:
"Sec. 73. (1) The administrator personally, or his duly authorized agent or a duly authorized city employee, may examine the books, papers and records of any person, employer, taxpayer or his agent or representative, for the purpose of verifying the accuracy and completeness of a return filed, or, if no return was filed, to ascertain the tax, withholding, penalties or interest due under this ordinance.
"(2) The administrator or his duly authorized agent may examine any person, under oath, concerning income which was or should have been reported for taxation under this ordinance, and for this purpose may compel the production of books, papers and records and the attendance of all parties before him, whether as parties or witnesses, if he believes such persons have knowledge of such income.” MCLA 141.673; MSA 5.3194(83).
"(2) Refusal by any person to submit to such examination or investigation, when requested or ordered by the administrator, is a violation of this ordinance, punishable by such penalties as are provided in the ordinance.” MCLA 141.681(2); MSA 5.3194(91X2).
Thus, these sections taken together impose penal sanctions (including imprisonment) on corporate officers who refuse or attempt to thwart a city’s valid request to examine the corporation’s books and records.
Applying the constructional rule expressio unius est exclusio alterius (express mention of one thing in a statute implies the exclusion of other kindred things), Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971), Alan v Wayne County, 388 Mich 210, 253; 200 NW2d 628 (1972), Valenti Homes, Inc v Sterling Heights, 61 Mich App 537; 233 NW2d 72 (1975), we hold that corporate officers cannot be held criminally responsible for corporate violations of MCLA 141.699(a), (b), (c), (e) or (f); MSA 5.3194(109)(a), (b), (c), (e) or (f). In light of the Legislature’s express condemnation of certain conduct, namely, the refusal to permit examination of books and records, which subjects corporate officers to criminal penalties, we refuse to entertain the suggestion that the Legislature intended more but failed to so specify.
Where, as here, a statute supplies its own glossary, courts may not import any other interpretation, but must apply the meaning of the terms as expressly defined. In re Jones Estate, 52 Mich App 628, 636; 218 NW2d 89 (1974), Bennett y Pitts, 31 Mich App 530, 534; 188 NW2d 81 (1971), W S Butterfield Theatres, Inc v Dept of Revenue, 353 Mich 345; 91 NW2d 269 (1958). Since the statute’s definition of "employer” makes no mention of corporate officers, we reject the plaintiffs attempt to include defendant by implication within that category and thereby impose upon her, ex officio, the obligations of an employer under the statute.
If the Legislature in enacting the statute had intended to punish corporate officers where the corporation is derelict in its statutory duties, we do not doubt their ability to have employed language suitable to that task.
Conviction reversed.
Detroit Ordinances, No 900-F; Sec 21-8-18 of the City Code. Since the plaintiff adopted the Uniform City Income Tax Ordinance verbatim, see MCLA 141.502; MSA 5.3194(2), we shall refer for convenience solely to the statute.
It should be noted that another section of the statute (one inapplicable to the present case) uses the word, "person”, in a penal provision:
"Sec. 74. (1) Information gained by the administrator, city treasurer or any other city official, agent or employee as a result of a return, investigation, hearing or verification required or authorized by this ordinance is confidential, except for official purposes in connection with the administration of the ordinance and except in accordance with a proper judicial order.
"(2) Any person who divulges this confidential information, except for official purposes, is guilty of a misdemeanor and subject to a fine not exceeding $500.00 or imprisonment for a period not exceeding 90 days, or both, for each offense. In addition, an employee of the city who divulges this confidential information is subject to discharge for misconduct.” MCLA 141.674; MSA 5.3194(84). (Emphasis added.) However, we need not decide whether officers of a corporate accounting firm authorized as the city’s "agent” under MCLA 141.674(1) may be criminally liable for improperly divulging confidential information obtained in the course of a tax audit.
The statute itself is to the same effect:
"Sec. 2. For the purposes of this ordinance, the words, terms and phrases set forth in sections 3 to 9 and their derivations have the meaning given therein. * * * .” MCLA 141.602; MSA 5.3194(12).
"(2) 'Employer’ means an individual, partnership, association, corporation, nonprofit organization, governmental body or unit or agency including the state, or any other entity whether or not taxable under this ordinance, that employs 1 or more persons on a salary, bonus, wage, commission or other basis, whether or not the employer is in a business.” MCLA 141.606(2); MSA 5.3194(16)(2). | [
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Per Curiam.
On October 17, 1972, defendant Jessie Alexander parked his dump truck, which weighed over five tons, on Cloverlawn, a residen tial street, in Flint, Michigan. At the time, a Flint ordinance provided:
"SECTION 11.106. TRUCK ROUTES. No person shall drive or park or cause to be driven or parked, any truck or vehicle, the combined weight of which truck or vehicle, its cargo and occupants shall exceed five tons, over or upon any street or highway of the City of Flint; except such streets or highways as shall be designated as Truck Routes, and as listed in Schedules Section 12.15 of this code.”
That evening, three-year-old Pamela Ross, the plaintiff, suffered facial and dental injuries when the car in which she was riding collided with defendant’s truck.
In her complaint, plaintiff raised, inter alia, defendant’s violation of the cited ordinance, alleging that her injuries stemmed from defendant’s negligent and illegal method of parking. By motion in limine, defendant sought to suppress any reference to the ordinance violation since, he contended, plaintiff was not in the class of persons to be protected by the vehicular-weight restriction. Agreeing with defendant, the trial court granted the motion.
Subsequently, the trial court also granted defendant’s motion for summary judgment, indicating in his corresponding order the factors prompting summary relief. Specifically, the court noted that plaintiffs attorney had indicated his displeasure with the court’s prior ruling on the Flint ordinance and his intention to appeal that decision. In addition, after acknowledging the belief of both counsel that a jury trial would take two days to complete, the court expressed the view that the trial "would be nothing more than an exercise in the mechanics of Trial procedure for purposes of permitting the case to assume an appealable posture”. Noting his "acute awareness of the time and monetary demands of this [c]ourt, as well as others” and also his exclusive reliance in deciding the motion in limine upon Webster v WXYZ, 59 Mich App 375; 229 NW2d 460 (1975), "which decision is not a pronouncement from the highest Court of the state”, the trial judge ordered summary judgment for defendant.
On appeal, plaintiff assails both of the lower court’s rulings. With regard to the motion in limine, she maintains that as a vehicle becomes heavier, it becomes wider; that a jury could have interpreted the ordinance as one attempting to avoid traffic congestion caused by wide vehicles on residential streets; and that it was the jury’s province to ferret the purpose of the ordinance and to determine whether violation of the ordinance amounted to negligence.
Resolution of plaintiffs claim turns on whether the lower court abused its discretion in applying the statutory purpose doctrine to the facts at bar. Zeni v Anderson, 397 Mich 117, 138-139, fn 22; 243 NW2d 270 (1976), 2 Restatement Torts, 2d, § 286. That doctrine provides:
"The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
"(a) to protect a class of persons which includes the one whose interest is invaded, and
"(b) to protect the particular interest which is invaded, and
"(c) to protect that interest against the kind of harm which has resulted, and
"(d) to protect that interest against the particular hazard from which the harm results.” 2 Restatement Torts, 2d, § 286.
The legislative purpose of vehicular-weight restrictions has been clearly delineated in People v Wolfe, 338 Mich 525, 540-541; 61 NW2d 767 (1953):
"It may be assumed that the legislature in the enactment of [MCIA 257.724; MSA 9.2424] had in mind the practical necessity of providing penalties that would deter owners and operators of commercial vehicles from using the public highways of the State for the purpose of transporting quantities of merchandise of such weight as to be destructive to such highways, to the danger of traffic thereon and to the detriment of the public generally. ” (Emphasis added.)
See also, People v Brown Brothers Equipment Co, Inc, 3 Mich App 618, 621; 143 NW2d 155 (1966). While the Flint ordinance differs in detail from the statutory provisions relied upon in Wolfe and Brown Brothers, the essential prohibition is the same: vehicles exceeding a stated weight are banned from specified roadways. With no evidence to suggest an alternative purpose, we believe the probable legislative purpose in back of the ordinance is the same as that discerned in Wolfe and Brown Brothers, supra.
Applying the statutory purpose doctrine in light of Wolfe and Brown Brothers, we hold that defendant’s motion in limine was properly granted. As Wolfe teaches, the purpose of vehicular-weight restrictions is to avoid the destruction of highways since a damaged highway thereby endangers the "traffic thereon” and also works a "detriment [to] the public generally”. 338 Mich at 541.
Thus, in the present case, if defendant’s illegally overweight truck had crushed the roadway on which it traveled, causing potholes to develop, and plaintiff suffered her injuries in a collision proximately caused by the potholes, then plaintiff would have a right to assert before the jury defendant’s violation of the Flint ordinance. In other words, the purpose of the weight ordinance is to ensure the safety of the traveling public "against the particular hazard from which the harm results”, 2 Restatement Torts, 2d, § 286(d), namely, weight-damaged highways which cause traffic accidents. Since the collision which injured plaintiff did not result from a roadway damaged by excess vehicular weight but allegedly from careless parking, the lower court properly suppressed reference to defendant’s ordinance violation.
Plaintiff next contends that since her complaint asserts a legally cognizable claim, the trial court erred in granting defendant’s motion for summary judgment. GCR 1963, 117.2(1). We agree. In addition to the previously excluded ordinance violation, the complaint alleges that defendant was negligent in two regards: (1) in carelessly parking his truck on a public highway, and (2) in failing to comply with MCLA 257.694; MSA 9.2394, which requires a vehicle parked after dark to display warning lights. Further, the complaint alleges injuries, expenses and a right of recovery. Considering only the pleadings and accepting as true all well-pleaded allegations therein, Michigan Health Care, Inc v Flagg Industries, Inc, 67 Mich App 125; 240 NW2d 295 (1976), we conclude that the lower court erroneously granted summary judgment for defendant.
The grounds offered by the lower court—(1) plaintiffs desire of immediate appeal because of a reduced likelihood of success at trial; (2) the time and monetary demands on the lower court; and (3) the trial court’s reliance upon precedent from an intermediate appellate court—fail to warrant relief under GCR 1963, 117.2(1). They do not support a finding that defendant "is entitled to judgment as a matter of law”. GCR 1963, 117.3.
The summary judgment rule may not be employed as a facile escape from GCR 1963, 806.3, which prescribes the procedure for obtaining leave to appeal. Nor will an overburdened trial docket or supposed Supreme Court silence on a point of law be accepted as valid justifications for shunting this case up the appellate ladder. A solution to the crowded docket will not be found either by inventive use of the summary judgment rule or by unnecessary disparagement of an applicable and controlling precedent from the Court of Appeals. See Hackett v Ferndale City Clerk, 1 Mich App 6, 11; 133 NW2d 221 (1965), People v McDaniels, 70 Mich App 469, 473; 245 NW2d 793 (1976).
Accordingly, the summary judgment is reversed and the matter remanded for trial.
Affirmed in part; reversed in part. No costs, neither side having fully prevailed.
" 'Legislative enactment’ includes both statutes and ordinances.” 2 Restatement Torts, 2d, § 286, Comment a, p 25. | [
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