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Per Curiam.
Plaintiff Sam A. Leonardi appeals by leave granted from a decision by the Workers’ Compensation Appeal Board on August 24, 1981, reversing an award of workers’ compensation benefits by a hearing referee with respect to defendant Wayne Steel Erectors, Inc.
In a petition received by the Bureau of Workers’ Disability Compensation on January 2, 1976, plaintiff claimed a work-related disability attributable to injuries occurring when he was employed by defendant Sta-Rite Reinforcing, Inc., on September 17, 1974, and by Wayne Steel on October 31, 1975, and disablement from occupational disease occurring on or about October 31, 1975.
After a hearing, the referee found injury dates of September 17, 1974, and October 31, 1975, and issued the following orders:
"It is further ordered that defendants, Sta-Rite Reinforcing, Inc., and Michigan Mutual Ins. Co., pay compensation at the rate of $118.00 per week for total disability to said employee from 9-18-74 to 3-24-75, the date of plaintiffs commencement of employment with City Re-Steel Erection Co.
"It is further ordered that defendants, Wayne Steel Erectors, Inc., and Employers Fire Ins. Co. pay compensation at the rate of $124.00 per week for total disability to said employee from 11-1-75 to 11-9-77 inclusive, and, further, that plaintiff is still totally disabled and defendants, Wayne Steel Erectors, Inc., and Employers Fire Ins. Co. shall pay compensation at the rate of $124.00 per week until further order of the bureau.
"It is further ordered that defendants, Sta-Rite Reinforcing, Inc., and Michigan Mutual Ins. Co. shall pay and/or reimburse plaintiff for all medical, hospital and prescription expenses incurred from 9-17-74 through 10-31-75; and that defendants Wayne Steel Erectors, Inc.,- and Employers Fire Ins. Co. shall pay and/or reimburse plaintiff for all medical, hospital and prescription expenses incurred subsequent to 10-31-75. Defendant shall have credit for all benefits heretofore paid. In the event the parties cannot agree on medical expenses, they shall return to the bureau for such determination.”
Defendant Wayne Steel appealed to the board and requested oral argument. Plaintiff filed a cross-appeal "for the purpose of keeping defendant-appellee Sta-Rite Reinforcing, Inc., and Michigan Mutual Insurance Company before this board”.
On July 16, 1980, defendant Wayne Steel filed a motion to stop payments before the bureau and a hearing was held before the hearing referee on October 9, 1980. The referee denied the motion by decision mailed December 4, 1980. On December 15, 1980, defendant Wayne Steel appealed the denial of the motion to stop payments to the appeal board.
The appeal board, with member Kehres dissenting, reversed both the award and the denial of the motion to stop payments by opinion and order dated August 24, 1981. In the opinion written by member Oldstrom, in which member Hostettler concurred, the following findings were made:
"In our judgment, and we so find, plaintiff has failed in his burden of proving a work-related disability by a preponderance of the evidence. * * * When plaintiff worked at Wayne from July to late October, 1975, he continued with his customary heavy work. * * * Plaintiff did say that he left Wayne on account of his pains (p 37). However, given the medical testimony, we are unable to give full weight to plaintiff’s complaints and testimony of disabling pain.”
One of the issues on appeal concerns the makeup of the appeal board panel. Chairman Gillman explained the problem in a letter to plaintiff’s counsel:
"Subsequent to our decision in this case you inquired of our office concerning the makeup of the panel which issued a decision in this case. It appears that said decision was rendered by two Members who had attended the oral argument of April 9, 1981, and one who had not.
"A review of our records reveals the following: Originally assigned to hear arguments on April 9, 1981, was a panel comprised of Members Hostettler (public member), Oldstrom (employer member), and Kehres (employee member). Just prior to that date a schedule conflict arose and Member Hostettler was replaced for the day by Member Richardson (also a public member).
"Apparently the change was not communicated to our secretarial staff. When the first proposed decision was drafted by Member Oldstrom, it was inadvertently circulated to Member Kehres (who had heard arguments) and Member Hostettler (who was unaware that this was a case on which arguments had been held— most of our cases are reviewed without verbal arguments of counsel).
"Thus, while the panel issuing a decision was 'balanced’ in the sense of the three 'interest groups’ recently written into our act all being represented, the panel was comprised of two, not three, of the persons who heard the arguments. Whether that rises to the level of some sort of due process deprivation I will leave to the Courts, but I do wish to apologize for the inadvertent error made.”
We are not convinced that the substitution of member Hostettler for member Richardson rises to the level of some sort of due process deprivation. In McGraw Electric Co v United States, 120 F Supp 354 (ED Mo, 1954), aff'd 348 US 804; 75 S Ct 45; 99 L Ed 635 (1954), the plaintiff appealed from a decision by the Interstate Commerce Commission which was made by a division of three commissioners. Oral argument, which had been granted upon the parties’ request, was heard by two commissioners; the third was unavoidably absent. The parties had been notified in advance that the third commissioner would not be present. While the case was under submission, one of the two commissioners present at oral argument died. The other commissioner dissented. Thus, no commissioner who participated in the decision had heard the argument.
Holding that the availability of argument in written form satisfied the requirements of due process, the district court stated:
"Due process of law under the Fifth Amendment does not necessarily require that oral argument be granted. In Federal Communications Comm v WJR, The Goodwill Station, 337 US 265, 275; 69 S Ct 1097, 1103; 93 L Ed 1353 [1949], the Court said:
" 'On the contrary, due process of law has never been a term of fixed and invariable content. This is as true with reference to oral argument as with respect to other elements of procedural due process. For this Court has held in some situations that such argument is essential to a fair hearing, Londoner v City & County of Denver, 210 US 373; 28 S Ct 708; 52 L Ed 1103 [1908], in others that argument submitted in writing is sufficient, Morgan v United States, 298 US 468, 481; 56 S Ct 906, 911; 80 L Ed 1288 [1936]. * * *’
"As no statute or rule demands it, and procedural due process does not necessarily require it, we hold that the hearing granted in this case was reasonable and adequate where all the evidence was in documentary form, and the oral argument in written form was before all the members of the Division who decided the case.” McGraw, supra, 358-359.
The United States Supreme Court’s summary affirmance of cGraw renders it binding on this Court as a matter of federal constitutional law. Although there are minor factual distinctions between McGraw and the instant case, we believe that McGraw is controlling in the present situation. Accordingly, we hold that the Due Process Clause of the federal constitution, US Const, Am XIV, was not violated by the appeal board’s failure to allow plaintiff oral arguments before all three members of the panel that decided his case.
We also do not believe that the Due Process Clause of the state constitution, Const 1963, art 1, § 17, affords plaintiff the procedural protections he has unsuccessfully sought under the federal constitution. In White v Revere Copper & Brass, Inc, 14 Mich App 31; 165 NW2d 454 (1968), rev’d on other grounds 383 Mich 457; 175 NW2d 774 (1970), this Court held that a member of the Workers’ Compensation Appeal Board who was not appointed to the board until after oral argument had already been heard in a particular case could participate in the decision of the case without violating the plaintiffs right to due process. We hereby reaffirm the vitality of the White case insofar as it disposes of the due process claim advanced in the instant case. We observe that the Supreme Court, in reversing White, declined to address the due process issue. We therefore suggest to the Supreme Court that, should it wish to address the issue it avoided in White, this case may be an appropriate vehicle.
We recognize that in Bohannon v Sheraton-Cadillac Hotel, Inc, 3 Mich App 81, 82; 141 NW2d 722 (1966), this Court held that "[w]hen an administrative agency promulgates a rule for the benefit of litigants and then deprives a litigant of this right, it is a violation of the Due Process Clauses of both the 1908 and 1963 Michigan Constitutions.” See Const 1908, art 2, § 16; Const 1963, art 1, § 17. Although we agree with the Bohannon holding, we observe that oral argument before the appeal board is no longer a matter of right, but a matter of discretion. Compare 1959 AACS, R 408.49 with 1979 AC, R 408.49. Hence, it was within the board’s discretion to refuse to grant oral argument, and the participation in the decision of a member who was not present at oral argument did not constitute a denial of due process.
Plaintiff also contends that there was no evidence to support the appeal board’s findings that he had failed in his burden of proving a work-related disability by a preponderance of the evidence. We believe that there was ample evidence to sustain these findings and, therefore, we reject this claim of error.
Affirmed. No costs, since a significant constitutional question is involved. | [
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M. J. Kelly, P.J.
The question presented in these two cases is whether a preliminary injunction, requiring defendant Detroit Automobile Inter-Insurance Exchange (DAIIE) to pay personal injury protection insurance (PIP) benefits, MCL 500.3107; MSA 24.13107, may be issued prior to the resolution of factual disputes over whether these benefits are properly payable. The trial court in each of these cases issued a preliminary injunction requiring DAIIE to pay PIP benefits to the plaintiffs. Defendants sought leave to appeal, GCR 1963, 806.2, in each case and this Court consolidated the cases for this appeal. We state the facts separately but analyze the issue jointly.
Dale Bratton
On January 26, 1979, Dale Bratton suffered injuries to his back in an automobile accident. At the time of his accident, Bratton was insured by DAIIE who paid his PIP benefits until he returned to work on November 4, 1979. However, on October 20, 1980, Bratton left his job claiming his injuries, sustained in the automobile accident, prevented him from working. Initially, DAIIE resumed payment of PIP benefits, but it also sent Bratton to be examined by Dr. David Collon, an orthopedic surgeon. After examining plaintiff, Dr. Collon opined that nothing prevented Bratton from resuming his previous level of activity or his previous employment. Pursuant to this opinion, DAIIE terminated its payment of work loss benefits on December 10, 1980.
On January 16, 1981, Bratton commenced an action to recover PIP benefits. He also moved for a show cause order to compel DAIIE to pay PIP benefits until the trial.
On January 27, 1981, DAIIE had plaintiff examined by Dr. S. A. Colah, a neurological surgeon. Dr. Colah opined that Bratton was promoting his own complaint and that he was not disabled. On February 20, 1981, and March 6, 1981, the trial court held a hearing on the order to show cause. In addition to the reports from defendant’s doctors, the trial judge also examined the sworn affidavit of Dr,. Harold Rodner, plaintiffs family physician. According to Rodner, the plaintiff was unable to return to work. Plaintiff also submitted an affidavit of the manager of employee relations at the United States Post Office, where plaintiff had worked previous to October 20, 1980. The affidavit stated that Bratton was not receiving any benefits from his former employer.
On March 20, 1981, the trial judge entered a preliminary injunction which ordered DAIIE to pay plaintiff all PIP benefits for the period between October 22, 1980, and the date of the order and PIP benefits for all losses incurred from the date of the order until further order of the court. The trial court also refused to order plaintiff to post a security bond pursuant to GCR 1963, 718.3(1). Finally, the court refused to order a stay of proceedings while DAIIE appealed to this Court. Defendant sought leave to appeal to this Court which was granted.
Joseph Anderson
On March 4, 1979, while insured by DAIIE, Joseph Allen Anderson was struck by a car while a pedestrian. Plaintiff underwent surgery to repair the triceps tendon in his right arm. After his surgery, he was unable to return to his previous job at a gas station because the job was taken. Between May and June of 1979, Anderson worked in the construction industry but claims he left that job because he could not perform the required work. He worked in construction between October, 1979, and May, 1980, but again left work alleging he could not perform his work. DAIIE paid Anderson PIP benefits for the periods between March 4, 1979, and May 10, 1980, and from July 22, 1980, until October 21, 1980.
On September 2, 1980, Anderson was examined by Dr. S. M. Lele, an orthopedic physician, who opined that, while Anderson had a gap in the triceps, this defect was not disabling. On October 3, 1980, Dr. B. Prasad, an orthopedic surgeon, made similar findings after examining plaintiff. DAIIE also sent Anderson to Dr. George Granger, a neurological surgeon, on May 22, 1981. He opined that the defect in plaintiffs triceps muscle would not prevent Anderson from engaging in his normal employment.
Plaintiff was also examined by Dr. John Ziegler, a neurological surgeon, who concluded that plaintiffs complaints of pain and numbness in the upper arm were genuine. Dr. Ziegler felt that Anderson’s condition was permanent and that it would be advantageous for him to go to school for vocational rehabilitation. Dr. Michael B. Karbal also examined Anderson and reached the same conclusion as Dr. Ziegler.
On May 28, 1981, plaintiff commenced an action seeking wage-loss benefits and medical expenses. He also moved for an order to show cause why the PIP benefits should not be paid. After a hearing on the order to show cause, the trial court issued a preliminary injunctive order on July 10, 1981. The order required DAIIE to pay Anderson one-half of all work-loss benefits which had accrued since May 5, 1980, to the date of the order. The order also requires DAIIE to pay all work-loss benefits from the date of the order until one of plaintiffs attending physicians certifies that he is able to return to work. Finally, the order required DAIIE to pay all past and future medical and vocational rehabilitation bills. The trial court denied DAIIE’s motions to require Anderson to post a security bond and to stay proceedings while it appealed to this Court. Defendant successfully sought leave to appeal to this Court.
I
Defendant challenges the preliminary injunctions on a number of grounds. Initially, it argues that the relief granted by the preliminary injunctions is the same relief requested by the plaintiffs and usurps the place of a final judgment. It also argues that the injunctions work a material and substantial harm upon it because DAIIE will be unable to recover the money paid to plaintiffs if it prevails on the merits. Furthermore, defendant claims that the injunctions alter the status quo in a way which harms DAIIE. Defendant also argues that plaintiffs failed to show that irreparable harm would occur to them. Defendant’s penultimate argument alleges that plaintiffs failed to demonstrate the inadequacy of their legal remedy. Finally, defendant claims that plaintiffs failed to demonstrate that they would ultimately prevail on the merits.
The grant or denial of a preliminary injunction is within the sound discretion of the trial court. Grand Rapids v Central Land Co, 294 Mich 103, 112; 292 NW 579 (1940); Michigan Consolidated Gas Co v Public Service Comm, 99 Mich App 470, 478; 297 NW2d 874 (1980). The object of a preliminary injunction is to preserve the status quo, so that upon the final hearing the rights of the parties may be determined without injury to either. Gates v Detroit & M R Co, 151 Mich 548, 551; 115 NW 420 (1908). The status quo which will be preserved by a preliminary injunction is the last actual, peaceable, noncontested status which preceded the pending controversy. Steggles v National Discount Corp, 326 Mich 44, 51; 39 NW2d 237 (1949); Van Buren School Dist v Wayne Circuit Judge, 61 Mich App 6, 20; 232 NW2d 278 (1975). The injunction should not be issued if the party seeking it fails to show that it will suffer irreparable injury if the injunction is not issued. Niedzialek v Barbers Union, 331 Mich 296, 300; 49 NW2d 273 (1951); Van Buren School Dist, supra, p 16. Furthermore, a preliminary injunction will not be issued if it will grant one of the parties all the relief requested prior to a hearing on the merits. Epworth Assembly v Ludington & N R Co, 223 Mich 589, 596; 194 NW 562 (1923). Finally, a preliminary injunction should not be issued where the party seeking it has an adequate remedy at law. Van Buren School Dist, supra, p 16.
Defendant’s main argument is that the injunctions result in irreparable harm to it because defendant has to pay contested benefits to plaintiffs, who will be unable to reimburse DAIIE should it prevail in the litigation. Both plaintiffs counter by arguing that they are impoverished and without the payment of benefits they will be unable to pursue the litigation to a successful conclusion. The evidence before the trial court demonstrated that both plaintiffs were unemployed at the time of the hearing on the preliminary injunctions. However, it also demonstrated that a question of fact existed as to whether the men were able to return to work. Furthermore, Anderson told the trial court that he might have a job within a few days. In complying with the injunctive orders it appears that DAIIE would be required to pay benefits where a factual dispute existed over whether the plaintiffs were actually disabled. In each case, defendant only refused to pay PIP benefits after it had received medical evaluations demonstrating that plaintiffs’ injuries were not preventing them from working. If payment were made to plaintiffs and DAIIE was successful in defending the actions, it would be unable to recover the benefits it paid to the plaintiffs. This would distort considerably the status quo which existed prior to the plaintiffs’ commencing their actions.
II
In addition to the irreparable harm suffered by DAIIE, the injunctions give the plaintiffs the very benefits which constitute the subject matter of their lawsuits. Plaintiffs contend that DAIIE owes them PIP benefits. Requiring defendant to pay those benefits prior to a hearing on the merits gives the plaintiffs the very relief they sought when they filed their actions. Nor do we find persuasive, plaintiffs’ argument that the injunction does not give them the entire relief requested because they also requested interest, MCL 500.3142; MSA 24.13142, and attorney fees, MCL 500.3148; MSA 24.13148. The plaintiffs’ actions were to recover claimed PEP benefits, and interest and attorney fees could not be recovered unless the trial court found the PIP benefits were unlawfully withheld. Therefore, the injunctions were improper since they gave plaintiffs the very relief requested by their complaints.
Ill
Finally, the injunctions were improper because plaintiffs had an adequate legal remedy. MCL 500.3142; MSA 24.13142 states that PIP benefits are payable within 30 days of when proof of the loss is submitted to the insurer. Where the insurer fails to pay the claimed benefits, the insured has one year within which he may commence an action against the insurer. MCL 500.3145; MSA 24.13145. If the insured prevails in his action, the trial court may award attorney fees and interest at 12% per annum. The Legislature has established a comprehensive procedure which allows an insured, who has been denied benefits, to recover those benefits. The Legislature did not provide for the payment of PIP benefits while the insured’s action was pending. We also decline to do so.
The trial court erred when it issued a preliminary injunction requiring defendant to pay PIP benefits to each of the plaintiffs. Because of our resolution of this issue in favor of defendant, we need not address the question of whether the trial court abused its discretion when it refused to require plaintiffs to post a security bond.
Reversed and remanded.
Mackenzie, J., concurred. | [
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Per Curiam.
Defendant was convicted of first-degree criminal sexual conduct, in violation of MCL 750.520b(l)(d)(ii); MSA 28.788(2)(l)(d)(ii). Defendant then pled guilty to a fourth felony-offender charge and was sentenced to a term of imprisonment to be consecutive to the three sentences defendant was serving at the time of the offense. Defendant appeals by right.
Defendant raises two issues on appeal, only one of which merits our attention. Defendant alleges that she was denied her right to counsel of her own choice because the trial court, after appointing counsel for defendant at her request, would not permit her subsequently retained counsel to proceed with the preliminary examination. At the scheduled preliminary examination, both appointed counsel and retained counsel appeared. Retained counsel explained that he had been retained by defendant’s family only for the purpose of representing defendant in the preliminary examination because they could not raise enough funds to retain him for the entire proceeding. The court advised the parties that it would not allow an appearance for the preliminary examination alone but retained counsel could consult in the matter. The preliminary examination was conducted by defendant’s appointed counsel.
The right to assistance of counsel is guaranteed by both the Michigan and the United States Constitutions. Const 1963, art 1, § 20; US Const, Am VI. This guarantee affords a defendant a reasonable opportunity to obtain counsel of his or her choosing. See Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932). Michigan’s GCR 1963, 785.4(3) provides the following:
"(3) Even though a defendant has waived the assistance of a lawyer, the court shall advise him at each subsequent proceeding (e.g., preliminary examination, arraignment * * *) of his right to a lawyer at public expense. Before the court proceeds,
"(a) the defendant must reaffirm that he does not want a lawyer’s assistance; or
"(b) if he is eligible for and then requests the appointment of a lawyer, the court must appoint one; or
"(c) if he wants to retain a lawyer and has the ñnancial ability to do so, the court must allow him a reasonable opportunity to retain a lawyer.” (Emphasis added.)
In People v Stinson, 6 Mich App 648; 150 NW2d 171 (1967), defendant sought to retain counsel on the date trial was to begin, almost three months after counsel had been appointed for defendant. While reaffirming every defendant’s right to counsel, this Court held that a defendant may effectively waive his right to retain counsel of his own choice by taking advantage of appointed counsel’s services. The facts in Stinson differ from the facts presented in this case because here defendant promptly produced retained counsel who was prepared to represent her at the preliminary examination. We find no waiver of defendant’s right to counsel of her own choice.
The trial court ruled that defendant’s retained counsel could consult with appointed counsel but could not present evidence or question witnesses. Concluding that he could not adequately represent defendant in such a limited capacity, retained counsel withdrew from the case. Thus, defendant was not allowed to fully employ counsel of her choice at the preliminary examination. In light of GCR 1963, 785.4, which specifically provides defendant with an opportunity to retain counsel, we find that the trial court’s decision precluding defendant’s retained counsel from representing her at the preliminary examination was clear error. Even though defendant may not have been able to continue with retained counsel’s representation at trial, that possibility should not have foreclosed the use of defendant’s choice of counsel at the preliminary examination.
Having found that error was committed, this Court must determine whether the error was harmless. Failure to provide counsel at a preliminary examination does not mandate automatic reversal; the reviewing Court must decide whether substantial or harmless error occurred. People v Washington, 30 Mich App 435, 437; 186 NW2d 13 (1971); People v Eddington, 77 Mich App 177, 190; 258 NW2d 183 (1977). The standard for harmless error involves a dual inquiry: (1) Was the error so offensive to the maintenance of a sound judicial system so as to require reversal? and (2) If not, was the error harmless beyond a reasonable doubt? People v Robinson, 386 Mich 551, 562-563; 194 NW2d 709 (1972).
Defendant admits to having been adequately represented at the preliminary examination by appointed counsel. Under the above standard, we find the error here resulted in no manifest injustice and was harmless beyond a reasonable doubt.
Affirmed.
E. C. Penzien, J., concurs in the result only. | [
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R. M. Maher, P. J.
Defendant was convicted by a jury of prison escape, MCL 750.193; MSA 28.390, and of being a fourth-offense habitual offender, MCL 769.12, 769.13; MSA 28.1084, 28.1085. Sentenced to three to ten years in prison, he appeals as of right.
Defendant raises three claims of error. First, the defendant claims the trial court committed error in its instructions to the jury. Second, defendant argues that the delay between his arrest and arraignment requires reversal. Finally, defendant argues that the trial court lost jurisdiction because he was not brought to trial within the 180 days required by MCL 780.131; MSA 28.969(1). We concur in the results reached by Judge Robinson regarding the last two of defendant’s three claims of error. We have concluded, however, that the trial court committed reversible error in its instructions to the jury.
Defendant contends that the trial court deviated improperly from ABA Standard Jury Instruction 5.4 in its charge to the jury. The ABA charge, approved in People v Sullivan, 392 Mich 324, 327-329; 220 NW2d 441 (1974), sets out permissible instructions to a jury unable to agree on a verdict.
In People v Goldsmith, 411 Mich 555; 309 NW2d 182 (1981), the Supreme Court confirmed that any substantial departure from the ABA charge is reversible error. Coercive effect is irrelevant. People v Allen, 102 Mich App 655, 658-660; 302 NW2d 268 (1981), lv den 411 Mich 870 (1981), provides the proper standard of review:
"We believe that the Supreme Court in Sullivan intended to announce a prophylactic rule eliminating the necessity of future appellate inquiry into the coercive effect of any number of possible variants on the Allen charge [Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896)]. One form was approved, and the Court clearly indicated its intent that only that form be used in the future. Because the new rule was made prospective, Allen-type charges in trials occurring before Sullivan were still subject to a case-by-case analysis, but the only case-by-case inquiry necessary in trials taking place after Sullivan involves whether the instruction given is a 'substantial departure’ from the ABA charge. * * * To the extent that other decisions of this Court have suggested that deadlocked-jury instructions given in post -Sullivan trials are to be examined on a case-by-case basis for their coercive effect, we believe they were wrongly decided.
"* * * We are not concerned with whether such statements are true or whether they are coercive. Our sole inquiry is whether they represent a substantial departure from the ABA charge * * *. It makes no difference that in Sullivan the Supreme Court held that the instruction challenged in the instant case was not coercive. The trial which we are reviewing took place after Sullivan so that questions of coercion are no longer involved. The Supreme Court could not have more clearly directed that the issue is no longer one of 'coercion’ but of 'substantial departure’ from the ABA charge.”
See, also, People v Johnson, 112 Mich App 41, 44-47; 314 NW2d 794 (1981).
In the case at bar, the trial court made several remarks which, taken as a whole, clearly constituted a substantial departure from the ABA charge.
After deliberating for less than four hours on the escape charge, the jury indicated that it was unable to reach a unanimous verdict. In an attempt to avoid a hung jury, the trial court gave the following instructions:
"The Court: Mr. Foreman, we have received this note from you: 'We feel we cannot reach a unanimous decision.’
"Ladies and gentlemen of the jury, if you cannot agree on a verdict, I want to tell you what will happen. The court will have to declare a mistrial, which means it must be retried before another 12 people at the next term of court. I cannot believe that the next jury panel will produce any 12 people who are more intelligent and more conscientious than the 12 of you. I want to reread some of my instructions to you.”
The trial court then gave several instructions which substantially conformed to the ABA charge. However, the court followed the permissible instructions with these remarks:
"The Court: Then I’d like to have you go back and consider what I have just said. Now, I will not keep you here past noon. I will urge you to try and decide on a verdict, because eventually, 12 people will have to decide this case, and I don’t think that I have ever seen 12 nicer people than you.”
Shortly thereafter, the jury returned a verdict of guilty.
These extraneous remarks clearly amount to a substantial departure from the ABA charge.
After approximately three hours of deliberation on the supplemental charge of being a fourth-felony offender, the jury once again indicated that it was unable to reach a unanimous verdict. In an attempt to avoid a hung jury on this charge, the trial court made the following remarks:
’’The Court: Mr. Foreman, would you stand, please? We have received this note from you: 'We feel a unanimous decision cannot be reached.’
"I think that somehow I’ve got you confused, and I wonder if there is some additional instruction that might help you, because the issue is not really that complicated. Either he is a fourth-felony offender, or he is not, and let me read to you again what I read to you last week.
"If you cannot agree on a verdict, I want to tell you what will happen. The court will have to declare a mistrial, which means that it must be re-tried before another 12 people at the next term of court. I cannot believe that the next jury panel will produce any 12 people who are more intelligent and more conscientious than the 12 of you, and, in other words, eventually, 12 Kent County residents are going to have to answer that question.
"Mr. Foreman, do you think that another 45 minutes might be productive?”
Manifestly, these remarks constitute an even more serious departure from the ABA charge.
Under Allen, supra, any language employed by the trial court aimed at encouraging the jury to reach, a decision constitutes a "substantial departure” from the ABA charge unless the ABA standard instruction "sanctions such a charge”. Goldsmith, supra, 561. Coercive effect is irrelevant.
Since the ABA standard instruction does not sanction the irregular remarks made by the trial court in the case at bar, and since these remarks are aimed at encouraging the jury to reach a decision, the defendant’s conviction must be reversed.
Reversed and remanded for a new trial.
D. E. Holbrook, Jr., J., concurred.
The standard jury instruction is set forth by the dissent. See infra fn 1.
As the dissent points out, I have cited People v Johnson, 112 Mich App 41; 314 NW2d 794 (1981), even though the Johnson panel found that instructions similar to those given by the trial court in this case did not substantially depart from the ABA charge. Although I agree with the standard announced in Johnson, I believe that the "substantial departure” test was applied incorrectly. | [
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Per Curiam.
Defendant Second Injury Fund (fund) appeals by leave granted the refusal of the Workers’ Compensation Appeal Board (WCAB) to review a hearing referee’s factual finding that plaintiff became totally and permanently disabled on February 14, 1967.
Plaintiff was injured while working as a cook for Marian Manor Nursing Home when she slipped and fell on water from a dishwasher. The last day she worked for the nursing home was February 14, 1967. Plaintiff then worked from April 15, 1967, to September 3, 1967, at the Saratoga Country Club. She was awarded specific loss benefits in May, 1968.
On December 24, 1976, plaintiff filed a petition for hearing, alleging the loss of industrial use of both her legs, and sought differential benefits for total and permanent disability pursuant to MCL 418.521(2); MSA 17.237(521X2).
Following the hearing held on May 3, 1977, the hearing referee found that plaintiff was totally and permanently disabled as of February 14, 1967, and ordered the fund to pay differential benefits from that date. The fund sought review to the WCAB. The majority of the WCAB, relying on White v Weinberger Builders, Inc, 397 Mich 23; 242 NW2d 427 (1976), concluded that, since the fund’s liability was derivative of that of the employer, the fund had no right to independently appeal the hearing referee’s finding of fact absent the employer’s appeal of that finding.
The issue presented in this case is not new to this Court. In the recent decisions of Banks v DeClerk Industries, Inc, 111 Mich App 489; 314 NW2d 663 (1981), and Clark v Cadillac Gage, 101 Mich App 513; 300 NW2d 622 (1980), lv gtd 411 Mich 1034 (1981), this Court held that the Second Injury Fund had a right to appeal to the WCAB independently of an employer’s right to appeal. In both cases, the Court indicated that the derivative liability rule of White is not controlling when the fund’s interests differ substantially from that of the employer’s. Since only the Second Injury Fund would be required to pay the additional benefits for a total and permanent disability, the employer runs no risk of liability by its admission or stipulation to an employee’s differential benefits claim. Given their different stakes in the outcome, an employer’s admission does not deprive the fund of the right to appeal the hearing referee’s decision. Banks, supra, p 494; Clark, supra, p 516.
Judge Brennan, concurring in Harris v Harlan Electrical Construction Co, 101 Mich App 155, 163; 300 NW2d 479 (1980), recognized the fund’s right to challenge an adverse ruling, stating:
"I find it neither inherently unfair nor unreasonable that the SIF stand in the shoes of the employer in effecting a redemption agreement relieving it of liability while conversely having the right to notice and to challenge a claimant’s claim when the fund’s liability is determined by stipulation. I do not believe that the Court’s holding in White is mutually exclusive of the position I advocate here.”
We take this opportunity to express our concern with the WCAB’s failure to follow the clear directive of those decisions. Apparently, some members of the appeal board believe that this Court’s opinions are "irreconcilably at odds” with each other and thus, that they are free to adopt whatever result they choose. The issue has been definitely resolved in favor of allowing the Second Injury Fund the right to appeal factual stipulations or adjudications independent of the employer’s right to appeal. We would urge the WCAB in the present case and in future cases to follow this Court’s decisions in Banks, supra, and Clark, supra.
Reversed and remanded to the WCAB for proceedings consistent with this opinion.
There is a split of opinion within the WCAB itself with respect to this issue. In Hebert v White Pine Copper Co, 1982 WCABO 212, 216, the two-person majority correctly held:
"* * * that Banks is evidence that the judicial system has determined that where the employer’s interests and the fund’s interests are adverse, the fund has a right to assert those interests before agencies and the courts. Such a holding does no damage to the doctrine that an employee’s right to fund payments is a derivative of his injury with the employer.
"The issue is resolved long since. The dissent’s anger over that decision is insufficient reason to beat long-dead horses.” | [
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Bronson, J.
Defendant and two others, Clayton Wideman, Jr., and Spence Corbin, were charged in the Detroit Recorder’s Court with first-degree felony murder. MCL 750.316; MSA 28.549. Corbin ultimately pled guilty to second-degree murder and was sentenced to serve a term of imprisonment of from 5 to 15 years.
Defendant and Wideman were jointly tried before a Detroit Recorder’s Court jury. Wideman was acquitted, while defendant was convicted of second-degree murder. Defendant was sentenced to life imprisonment, and now appeals as of right.
Spence Corbin’s testimony was the sole testimony directly implicating either defendant or Wideman in the killing. Corbin indicated that he was defendant’s lover on the date of the killing. On March 4, 1980, he awoke in defendant’s flat and heard noises "like somebody tussling”. He looked around the flat but failed to locate the source of the noise. After finding nothing, Corbin went downstairs to the lower flat occupied by the deceased, Kenneth Bowers. In this flat, Corbin saw defendant holding some money in her hand which she was counting. Wideman was hitting Bowers on the back of the head and back with his fists. Defendant told Corbin to "help my brother [Wide-man]”. Corbin consequently picked up an ashtray and hit Bowers in the head with it. Wideman snatched the ashtray away from Corbin and rapped Bowers several times with it. Wideman then dragged Bowers toward the bedroom. Defendant told Corbin to search the flat for money; he complied. After a time, defendant called for Corbin to come to her, and, when he did, she handed him a paring knife and told him to go help her brother. Corbin took the knife. When he entered the bedroom, he stepped in a "puddle of blood” and observed Wideman stabbing Bowers. Feeling nauseous, Corbin turned his head, lunged the knife downward, and stabbed Bowers in the neck. There after, he left the room to avoid vomiting while Wideman continued to stab Bowers. When the killing was completed, the knives, Corbin’s bloodstained socks and other items of physical evidence were placed in a garbage can far from the scene of the crime. Other facts will be set forth where applicable to specific issues.
I
Defendant first asserts that the evidence was insufficient to warrant submitting to the jury the first-degree murder charge on an aiding and abetting theory. Alternatively, defendant asserts that her conviction cannot stand because the principal, Wideman, was acquitted of the murder charge.
A jury instruction on aiding and abetting is proper if the evidence tends to establish that more than one person committed the crime, and defendant’s role in the incident amounts to something less than the direct commission of the offense. People v Mann, 395 Mich 472, 477-478; 236 NW2d 509 (1975); People v Benevides, 71 Mich App 168, 172; 247 NW2d 341 (1976). To justify giving aiding and abetting instructions there must be evidence of concert of action. People v Marshall, 53 Mich App 181, 186; 218 NW2d 847 (1974), and cases cited therein.
In our opinion, the aiding and abetting instructions given here were entirely proper. Corbin testified that while Wideman was hitting the deceased, defendant told him to help. Corbin also searched the deceased’s flat for money at defendant’s behest. Furthermore, defendant handed Corbin a paring knife and told him to help Wideman. At the time, Wideman was engaged in the stabbing of Bowers. Absolutely no testimony was offered suggesting that defendant was a direct participant in the killing.
Defendant, however, further asserts, that, since Wideman, who according to Corbin’s testimony was the primary actor in the killing, was acquitted, her conviction cannot stand. We disagree.
This question was first addressed in this jurisdiction in People v Mangiapane, 219 Mich 62; 188 NW 401 (1922). Discussing MCL 767.39; MSA 28.979, which abolishes the common-law distinction between accessories and principals, the Court concluded that this statute abrogated the common-law rule requiring the conviction of the principal as a prerequisite to a valid conviction of the aider and abettor. See, also, F W Standefer v United States, 447 US 10; 100 S Ct 1999; 64 L Ed 2d 689 (1980); People v Smith, 271 Mich 553, 561; 260 NW 911 (1935); People v Miniear, 8 Mich App 591, 596-597; 155 NW2d 222 (1967), lv den 380 Mich 758 (1968).
Both Standefer and Mangiapane involved separate trials where the alleged principal was found not guilty but the aiding and abetting defendant was convicted in a different trial. Here, however, defendant points out that the alleged principal, Wideman, was acquitted in the very same trial by the very same jury which convicted her as an aider and abettor. We uncovered no cases from this state involving the same factual scenario. Relying on the rule that, although conviction of the principal is no longer necessary to convict the accessory, the guilt of a principal must still be shown, People v DeBolt, 269 Mich 39, 45; 256 NW 615 (1934); People v Williams #1, 45 Mich App 623, 628-629; 207 NW2d 176 (1973), defendant asserts that the acquittal of Wideman compels the reversal of her conviction. We disagree because, quite apart from the sufficiency of the evidence tending to show that Wideman was a principal, Corbin’s testimony clearly establishes his direct participation in the killing. Without regard to Wideman, then, a guilty principal was shown, to-wit: Corbin.
Even were we to conclude that only Wideman could be deemed a principal in the killing, reversal would not be necessary. The prosecution did, indeed, introduce legally sufficient evidence tending to show that Wideman was a principal and that defendant aided and abetted his commission of a felony murder. In our opinion, the rule prohibiting the conviction of one as an accessory where no guilty principal has been shown only applies to those cases in which legally insufficient evidence is adduced to permit the conclusion that there was a guilty principal. It is now beyond peradventure that juries are not held accountable to rules of logic. People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980). As such, a jury’s decision to acquit the apparent principal while convicting the accessory is not grounds for reversal of the accomplice’s conviction. _
II
Defendant next asserts that the trial court improperly refused to conduct a hearing on her motion to suppress various statements. Midway through trial, Detroit Police Officer Daniel Gossard stated that he arrested defendant for "homicide investigation”. At this point, defense counsel asked for a hearing in regard to the arrest and the suppression of various statements made by defendant. The trial court responded:
"If your position is, and as we all know, arrest for homicide investigation is unlawful and the fruits thereof are to be suppressed, that’s a matter for pretrial. I’m willing to deal with Miranda [384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966)] and whether or not Miranda’s been complied with, but if the claim is that the fruits, be it evidence or statements or confessions or admissions, were the result of unlawful arrest, that’s a matter for pretrial. And I’m not going to open up that Pandora’s box at this time.”
The trial court’s reference to the motion to suppress being a pretrial matter was apparently based on Detroit Recorder’s Court Rule 18.1 governing felony motion practice. This rule provides:
"Pre-Trial Motions. All Motions must be filed with the Clerk of the Court; with praecipe for hearing upon four (4) days notice to all counsel of record; and proof of service of notice upon opposing counsel must be presented to the Pre-Trial Judge within thirty (30) days after the Arraignment on the Information or within such extended time as shall be fixed by the Pre-Trial Judge.__
"Any defense or objection, which is capable of determination without trial of the general issue, may be raised before trial by motion. Defenses and objections based on defects in the institution of the prosecution or in the Information, other than that it fails to show jurisdiction in the Court or to charge an offense, may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the Court for good cause shown may grant relief from the waiver.”
A number of decisions from this Court have held that, where a proper pretrial motion to suppress evidence has not been made, the trial court has discretion to consider the issue but need not do so. Inter alia: People v Paffhousen, 20 Mich App 346, 351-352; 174 NW2d 69 (1969), lv den 383 Mich 825 (1970); People v Wilder, 51 Mich App 280, 285; 214 NW2d 749 (1974), lv den 394 Mich 774 (1975); People v Soltis, 104 Mich App 53, 55-56; 304 NW2d 811 (1981), aff'd as modified on other grounds 411 Mich 1037; 309 NW2d 186 (1981). Indeed, in People v Greer, 91 Mich App 18, 24-25; 282 NW2d 819 (1979), one panel of this Court, citing Recorder’s Court Rule 18, went so far as to hold that the trial court had abused its discretion in considering mid-trial a question concerning the legality of defendant’s arrest. The Court concluded that, since defense counsel had offered no reason for the beláted motion, "good cause” had not been shown.
In point of fact, the above line of authority is in seeming conflict with the doctrine that, when defendant raises a constitutional question for the first time on appeal, this Court will nonetheless consider the issue. Inter alia: People v Cotton, 38 Mich App 763, 767; 197 NW2d 90 (1972); People v Thomas, 44 Mich App 649, 653; 205 NW2d 604 (1973); People v Hoerl, 88 Mich App 693, 696; 278 NW2d 721 (1979). This doctrine is sometimes phrased as making appellate review appropriate if resolution of the constitutional issue is decisive to the outcome of the case. Inter alia: People v Blassingame, 59 Mich App 327, 333; 229 NW2d 438 (1975), lv den 399 Mich 842 (1977); People v Summers, 70 Mich App 584, 586-587; 246 NW2d 152 (1976); People v Harris, 95 Mich App 507, 509-510; 291 NW2d 97 (1980). The distinction in how the test is phrased is more a matter of semantics than of any actual substantive difference in application. It is only possible to determine if the constitutional claim is outcome-determinative once its merits have been considered.
In our opinion, the -failure to object to constitutional errors below does not preclude appellate review. We also reject the notion that, if a trial court in the exercise of its discretion refuses to consider the constitutional claim, we are limited in our review to a consideration of whether there has been an abuse of discretion.
Acceptance of the doctrine that the lack of a motion justifies the lower court in refusing to hear the claim, along with the rule that we will not reverse a trial court on a discretionary ruling absent an abuse of discretion and the doctrine that constitutional challenges will be considered on appeal even absent an objection below, would lead to anomalous results. Ironically, where both of these doctrines are deemed operative, a defendant who never raises the constitutional claim below is better off than a defendant who simply raises the issue during trial, instead of by pretrial motion. The defendant who never raised the issue could invoke the doctrine that failure to object does not preclude review of a constitutional claim. How ever, the defendant who objects or raises the issue at the wrong time would, in most cases, have to be content with the knowledge that the lower court did not abuse its discretion in failing to consider the belated motion. Given the foregoing, while accepting that a trial court need not consider an untimely raised constitutional challenge, we further conclude that the trial court’s decision not to address the claim does not preclude us from doing so.
We now turn to a discussion of the illegal arrest claim, beginning with a recitation of the factual posture of this issue. Defendant made four statements to the police. However, only the fourth and final statement was made after her arrest. All four statements were exculpatory. The first three statements were generally consistent except that each of these statements added details not in the preceding statement. In the second statement, defendant cast aspersions on a group of brothers known as the Nolands. The third statement was an elaboration of the second and more directly implicated the Nolands. The fourth statement, given after defendant’s arrest, constituted a drastic shift in the substance of her claims. In this statement, defendant indicated that Spencer Corbin had committed the murder and that she had helped dispose of some evidence after the killing but that she was not otherwise involved in the incident.
Although defendant’s appellate counsel does not distinguish the admissibility of the various statements, only the last statement was made after her arrest for "investigation of homicide”. Thus, only its admissibility is in issue.
This Court has previously held that where a defendant is arrested for investigation of a crime the arrest is illegal and that any evidence obtained as the fruit of that arrest must be suppressed regardless of the presence or absence of probable cause. People v Martin, 94 Mich App 649, 653; 290 NW2d 48 (1980), lv den 409 Mich 928 (1980); People v Nabers, 103 Mich App 354, 373; 303 NW2d 205 (1981). However, in People v Nabers, 411 Mich 1046; 309 NW2d 187 (1981), the Michigan Supreme Court reversed in part this Court’s decision in Nabers, holding that there had been probable cause to arrest that defendant so that the items seized need not be suppressed. Since the Supreme Court failed to consider the investigatory arrest aspect of Nabers, we must assume that the Court decided that an investigatory arrest is not per se grounds for the suppression of evidence obtained incident thereto.
It is unclear on the present record whether there existed probable cause to arrest defendant at the time the apprehension occurred. Certainly, the transcript of the trial fails to show that probable cause to effect an arrest existed, and, given the arrest for "investigation of homicide”, this seems doubtful. However, an investigator’s report appearing in the lower court file refers to a Glenn Davis who apparently told the police that defendant had admitted that she and others had robbed and stabbed the deceased. In her third statement to the police, defendant implicated, along with the Nolands, "a man named Glenn” who lived across the street. If Davis’s statement was obtained prior to defendant’s arrest, there was probable cause to effect the same. However, if the statement was made only after her arrest, defendant was apprehended on mere suspicion.
Nonetheless, it is our opinion that, even if defendant were illegally arrested on less than probable cause, on the facts of this case the error was harmless beyond a reasonable doubt. Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967). See, also, People v Pace, 102 Mich App 522, 531, fn 2; 302 NW2d 216 (1980). The fact is that defendant denied any direct involvement in the killing in all of her statements. Her testimony at trial was consistent with her final statement. Basically, the prosecutor used the three earlier statements to impeach defendant’s credibility concerning her version of the events in issue. The prosecutor really did not need to introduce into evi dence the fourth statement at all since defendant’s testimony at trial was in accordance with this final statement and was inconsistent with her first three statements. It was the earlier statements, that were undoubtedly legally obtained, which were used heavily to attack defendant’s veracity, not the final statement. Moreover, apart from the inconsistencies between the earlier statements and her testimony at trial, defendant’s testimony was riddled with other discrepancies and a selective lack of memory problem. Without regard to the final statement made by her, defendant’s own testimony sealed her fate and secured the prosecution’s case.
Despite the foregoing, trial courts would be well advised to sua sponte conduct a hearing on the legality of the arrest whenever a police officer testifies that defendant was arrested for "investigation” of a crime. Such a statement raises an "alerting circumstance” which should signal the lower court to undertake further investigation. Compare, People v Hooks, 112 Mich App 477; 316 NW2d 245 (1982), which provides that in some circumstances the trial court should sua sponte hold a hearing inquiring into the voluntariness of defendant’s statements.
Ill
Defendant further asserts that the prosecution was allowed to introduce into evidence a highly prejudicial and irrelevant hearsay statement allegedly made by her to Spence Corbin. Corbin testified that he expressed to defendant fears that he had about being apprehended by the police. Defendant, in an attempt to allay these fears, supposedly said something like: "Don’t worry about it. I have killed a man before and only received 90 days for it.” Corbin went on to explain that the alleged victim was a former boyfriend of defendant’s.
Defense counsel objected to the admission of the statement, but the trial court ruled that the statement was an admission pursuant to MRE 801(d)(2)(A). We conclude that the statement should have been excluded.
On appeal, the prosecution relies upon People v Moncure, 94 Mich App 252; 288 NW2d 675 (1979), vacated and remanded on other grounds 409 Mich 905; 295 NW2d 494 (1980), which it contends stands for the proposition that a statement may be admitted pursuant to MRE 801(d)(2)(A), although it has no direct bearing on the crime charged. In Moncure, a witness testified that defendant had earlier told her, "if the deceased ever left him he would kill her and then kill himself’. 94 Mich App 257. The Moncure Court, relying on 4 Wigmore, Evidence (3d ed), § 1048, pp 4-5, concluded that an admission is any out-of-court statement made by a defendant and embraces more than the literal definition of "admission”, namely, that defendant actually admit to having taken a particular action. 94 Mich App 259. Thus, in Moncure, defendant’s statement concerning what he would do in the future was admissible into evidence.
We specifically disagree with the prosecution’s characterization of defendant’s statement in Mon-cure as having no direct bearing on the crime charged. There, defendant was on trial for the first-degree murder of his lover, the deceased. As such, his statement that he would kill her under certain circumstances was relevant to establish premeditation and deliberation.
We do not disagree with the prosecution’s position that any out-of-court statement made by a defendant which is offered against that defendant is an admission. However, this fact only disposes of the hearsay objection to the use of the statement; it does not dispose of the relevancy objection. MRE 401. In our opinion, the statement or admission made by defendant in this case was irrelevant. The statement constituted an admission of past wrongdoing, but it did not make it more probable that defendant also murdered the deceased in this case. To the extent that the statement may be deemed relevant, it is relevant only on the prohibited basis that if defendant did it once, she likely did it again. MRE 404(b). Thus, this case is unlike Mon-cure in which the admission was relevant.
In lights of the above, we must determine whether the error was harmless. Although the verdicts rendered in this case were sufficiently odd to raise the specter of harm caused by the erroneous admission, we ultimately conclude that no reversal is warranted on this basis. The trial court gave explicit cautionary instructions concerning the permissible use of the "admission” and how it should be weighed. The court also gave instructions to the jury concerning Corbin’s testimony as an accomplice informant, urging the jury to examine his testimony with greater care and concern for veracity than would be justified for an ordinary witness’s testimony. These instructions would seem to substantially reduce the weight likely given to Corbin’s testimony about the admission. Moreover, as noted earlier in this opinion, there exists a sound basis, consistent with the belief that the jury took its deliberations and the court’s charge with great earnestness, explaining the acquittal of Wideman and the conviction of defendant. In light of defendant’s own obviously self-destructive testimony, we do not believe that but for the error one juror would have voted to acquit. Finally, we do not believe the prosecutor intentionally injected the error into the proceedings. See, People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972); People v Swan, 56 Mich App 22, 31-32; 223 NW2d 346 (1974), lv den 395 Mich 810 (1975).
IV
Defendant’s final claim on appeal is that in light of People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), her conviction must be reversed because the trial court incorrectly charged on the malice element of first-degree felony murder. Without regard to the substantive merits of this claim, we note that Aaron is not to be applied retroactively, and the trial in this case was decided before the decisional date of Aaron. See, People v Bradley, 106 Mich App 373, 381; 308 NW2d 216 (1981); People v Lonchar, 411 Mich 923; 308 NW2d 103 (1981); People v Dietrich, 412 Mich 904; 315 NW2d 123 (1982). As such, defendant’s claim presents no basis for reversal.
Affirmed.
T. R. Thomas, J., concurred.
Corbin stated at trial that he pled guilty and agreed to testify against defendant and Wideman in exchange for a promise that the sentence imposed against him would be "light”.
We note that in this case it is entirely possible that the jury was not really inconsistent at all but, rather, simply took to heart the presumption of innocence. The jury might have concluded that Corbin was not sufficiently credible, in and of himself, to convict the defendants. Defendant took the stand on her own behalf and was subject to a particularly damaging cross-examination. It is entirely possible that the jury deemed her testimony to be wholly incredible and that it was this testimony which allowed the jurors to find guilt beyond a reasonable doubt. Wideman, on the other hand, chose not to testify. He was thus not subject to attacks on his credibility. Moreover, during Corbin’s testimony, Corbin indicated that only he and defendant knew where the garbage bag with the instrumentalities of the crime and other items of physical evidence had been disposed of. Counsel for Wideman strongly emphasized this testimony in his closing argument, stating, in part: "Well it would seem to me that if these three people participated in this killing as alleged by the prosecution, why was it [the bag] this very important knowledge incriminating evidence would have been kept from Clayton Wideman, Junior.”
The doctrine that the trial court may exercise its discretion to refuse or agree to consider an alleged constitutional error if a proper pretrial motion to suppress has not been made goes back to People v Ferguson, 376 Mich 90; 135 NW2d 357 (1965). We acknowledge that this doctrine has never been overruled. Nonetheless, we note that Ferguson was decided before the constitutional rights of criminal defendants were deemed particularly important. We also note that Ferguson states that the burden of establishing the illegality of a warrantless search and seizure is on the defense. In fact, it is now settled that where a warrantless search and seizure has occurred, the burden is on the prosecution to establish legality because warrantless searches are per se unreasonable. Coolidge v New Hampshire, 403 US 443, 455; 91 S Ct 2022; 29 L Ed 2d 564 (1971); People v Reed, 393 Mich 342, 362; 224 NW2d 867 (1975), cert den 422 US 1044; 95 S Ct 2660; 45 L Ed 2d 696 (1975); People v Harold Williams, 63 Mich App 398, 401; 234 NW2d 541 (1975).
At the same time, we urge the lower courts to consider constitutional challenges to evidence even if they are not, strictly speaking, properly raised. The overwhelming majority of criminal defense counsel are court appointed. It seems to us that where defense counsel fail to make appropriate pretrial’ motions the lower courts should just stop appointing these attorneys to represent indigent defendants. Attorneys are appointed for defendants to insure that said defendants will obtain fair trials in accordance with due process. Where an appointed attorney’s negligence jeopardizes a defendant’s constitutional rights, it makes more sense to penalize the attorney, if anyone, than the defendant by refusing to consider potentially meritorious constitutional challenges to the introduction of evidence.
See, also, Baughman, Criminal Procedure, 27 Wayne L Rev 695, 703 (1981), referring to the Martin decision as "ludicrous” for its failure to use an objective standard concerning whether probable cause exists to effect an arrest. In retrospect, having sat on both Martin and Nabers, I believe that I may have been overzealous in my efforts to protect the civil liberties of the populace by focusing solely on the nomenclature used by the arresting officer. At the same time, however, I believe that the characterization of the Martin and Nabers holdings as "ludicrous” represents overzealousness of a different type.
What follows is just one of numerous examples of defendant’s troublesome and self-damaging testimony. On cross-examination:
"Q. Now prior to your testifying, you had an opportunity, did you not, to look over the statements that you’d made?
"A. No.
"Q. Your attorney never showed you the statements that you made?
"A. No, he didn’t.
"Q. Well, you did talk to him about the statements, didn’t you?
"A. No.
"Q. Would — you were here yesterday when he made his opening statement to the jury weren’t you?
"A. Yes.
"Q. And he told the jury that the first three statements were false and the fourth one was the truth, right?
"A. Right.
"Q. How would he know that if he didn’t talk to you?
"A. I don’t know.
"Q. Yesterday on direct examination he asked you some questions and he said the first three statements they were the truth, weren’t they and you said yes, right?
"A. No.
"Q. He told you the first three statements were not the truth, right and you said yes, they were not the truth, right?
"A. I didn’t say anything.
"Q. And he asked you about the fourth statement yesterday and he said that was the truth and you said yes, right?
"A. I didn’t say anything to you.
"Q. Would you like sometime to go over, those statements and read them over to yourself?
"A. No.
"Q. Let me show you People’s Proposed Exhibit No. 7 or People’s Exhibit No. 7.
"This is the first statement that you gave to the police, is it not?
"A. I guess, yes.
"Q. Well, read it over to yourself and let us know if that’s the first statement you gave to the police, ma’am.
"A Why should I read these over?
"Q. Because I’m — I want to — you to be able to identify that statement and tell us if that’s the first one that you made or the second or the third or the fourth.
"Q. [By the Prosecutor, continuing]: Do you recognize that statement as the first statement that you gave to the police?
"A. No, I really can’t recognize what statement it is.
"Q. All right. Why don’t you read that statement over to yourself because I notice that you didn’t read the back of that statement, see what’s written in that statement and see if that refreshes your memory as to which statement that was.
(After a short delay, the proceedings continued.)
"Do you have — did you have an opportunity to read over that statement?
"A. Yes.
"Q. Now do you recognize that statement as the first statement that you gave to the police?
"A. No.
”Q. [By the Prosecutor, continuing]: What did you tell the police the first time you talked to them upstairs?
"A. I really don’t remember.”
During direct examination the day before, defendant’s recollection of the substance of her previous statements was considerably better. Indeed, defendant’s memory of the earlier statements was even much better during the first part of the prosecutor’s cross-examination conducted on the same day as the direct examination. The complete breakdown of defendant’s memory during the second day of cross-examination must have made a lasting impression on the jury.
The trial court also suggested that the statement was admissible pursuant to MRE 404(b) as evidence of a scheme or plan. The prosecution makes no attempt to justify admission of the statement on this basis. In our opinion, the trial court was clearly in error in attempting to justify admissibility on MRE 404(b) since this case did not involve a scheme or conspiracy on defendant’s part to kill people. Scheme or plan was simply not material in this case. See People v Clement Anderson, 111 Mich App 671, 679-682; 314 NW2d 723 (1981), and cases cited therein.
Even had the "admission” been relevant, the trial court would have been obligated to consider whether its probative value was outweighed by the danger of unfair prejudice to defendant. MRE 403. | [
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Per Curiam.
Defendant pled guilty to larceny over $100, MCL 750.356; MSA 28.588. She was sentenced to serve 1-1/2 to 5 years in prison.
At the time of sentencing, she denied three convictions listed on the presentence report. It is also claimed that she was not represented by counsel for some other convictions.
The trial judge did not reply to such assertions.
When a defendant asserts such errors, the trial judge has three alternatives. First, he can hold an evidentiary hearing to determine whether or not the presentence report is inaccurate. Second, he can accept the defendant’s unsworn statement. that the information is false. Third, he can ignore the alleged misinformation in determining the sentence. People v Perez, 103 Mich App 636; 303 NW2d 49 (1981).
This case is reversed and remanded for resentencing before a different judge. | [
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R. M. Daniels, J.
Plaintiff successfully sued defendants for breach of an alleged oral contract of employment. Defendants appeal the jury verdict in plaintiffs favor, while plaintiff cross-appeals the trial court’s order of remittitur.
Bay Valley is a multimillion-dollar development consisting of Bay Valley Inn, a golf course, tennis club, apartments, condominiums and vacant acreage. At the time of trial, defendant Currie was sole shareholder of Bay Valley Inn and sole general partner in Bay Valley, Limited, with defendant Waltz having a small partnership interest. Currie assumed ownership of the Bay Valley development in 1974 when it was beset by financial difficulties and construction problems. He decided the project needed a full-time manager. Plaintiff’s name was suggested for this position, and talks between plaintiff and Bay Valley personnel culminated in plaintiff’s employment as manager on August 1, 1974. His employment was terminated by defendants on April 15, 1975, after a general economic downturn obviated the need for a project manager. The parties never executed a written contract of employment.
Plaintiff testified that he had been employed for a term of three years at $65,000 per year and was to receive a condominium at half price, a $25,000 value, and a ten percent ($200,000) interest in Bay Valley Inn. His claimed damages included lost salary for only the last two years of the three-year term, since defendants had paid him for one year.
Defendants interposed the statute of frauds, MCL 566.132(a); MSA 26.922(a), denied an agreement for a three-year employment term, asserted that the offer of a condominium for half price was contingent upon plaintiff’s moving to Bay Valley, and maintained that no agreement was reached regarding an ownership interest in the complex for plaintiff.
The jury, on November 2, 1979, awarded plaintiff $130,000. Thereafter, the trial judge denied defendants’ motions for judgment notwithstanding the verdict and for a new trial, but granted their motion for remittitur, reducing the award to $89,-000 to reflect $41,000 plaintiff had earned from other employment during the final two years of the three-year term.
Defendants first contend that the lower court erroneously denied their motions for judgment notwithstanding the verdict and for a new trial. They maintain that plaintiff, during trial, proceeded on the theory of equitable estoppel, while on appeal he argues the doctrine of promissory estoppel. According to defendants, the distinction between these theories is more than academic since equitable estoppel is allegedly the correct legal theory and. requires clear and convincing evidence to establish the contract and overcome the statute of frauds, whereas the trial court instructed the jury that a preponderance of the evidence was adequate to prove plaintiff’s case.
We recognize that a distinction has been made between equitable estoppel and promissory estoppel vis-á-vis the statute of frauds. Note, 55 Mich L Rev 170 (1967); 28 Am Jur 2d, Estoppel and Waiver, § 48, pp 656-659. However, some cases apparently use the terms interchangeably. E.g., Ass’n of Hebrew Teachers v Jewish Welfare Federation, 62 Mich App 54; 233 NW2d 184 (1975). Plaintiff insists that interchangeable use of the terms "promissory estoppel” and "equitable estoppel” is proper but suggests that, should this Court deem such usage confusing, we consider his reliance as being upon equitable estoppel. Since our examination of the record reveals that the proceedings below were compatible with the theory of equitable estoppel, we accept plaintiffs suggestion and confine our analysis to that doctrine.
Defendants unsuccessfully requested a jury instruction stating that plaintiff must prove that "the promises made by the defendants were definite and clear”. They now contend that there are two reasons why an alleged oral contract of employment should be established by clear and convincing evidence where equitable estoppel is relied upon to avoid a statute of frauds defense.
First, defendants cite certain cases in which a "clear and convincing” standard of proof was utilized, including Guzorek v Williams, 300 Mich 633; 2 NW2d 796 (1942), and Van Houten v Vorce, 259 Mich 545; 244 NW 157 (1932). To these may be added our Supreme Court’s most recent pronouncement in Pattyn v Frezza, 412 Mich 861 (1981), where the Court by order reversed in lieu of granting leave to appeal, stating:
"The complaint alleged a contract based on the defendant’s promise to convey a house located in Warren in return for the plaintiffs’ care of the defendant and her husband during their lives. The plaintiffs have the burden of establishing the contract by clear and convincing evidence. Guzorek v Williams, 300 Mich 633, 639 (1942).”
Secondly, defendants maintain that the statute of frauds is designed to protect against false allegations of an existing contract, and that public policy dictates that the protection the statute provides should not be avoided by evidence less than' clear and convincing.
Plaintiff counters defendants’ arguments by citing Stephenson v Golden (On Reh), 279 Mich 710; 276 NW 849 (1937), and White v Production Credit Ass’n, 76 Mich App 191; 256 NW2d 436 (1977). Stephenson states:
"There is no rule of law or of judicial reasoning that adopts any sliding scale of belief in civil cases. * * *. There are but two classes of cases recognized as requiring different rules of proof — criminal cases, where a conviction is warranted only by proof beyond a reasonable doubt; and cases not criminal, where a preponderance of proof satisfies the legal requirement.” Stephenson, p 734.
The White Court remarked:
"Next, defendant complains because the trial court did not give defendant’s requested instructions concerning burden of proof. Defendant asked that the trial court instruct the jury that the plaintiff must prove his case by evidence which 'clearly and satisfactorily convince^] you that there was a contract or agreement between the parties’.
"The cases cited by the defendant to support his request were not jury cases and did not involve jury instructions. Both Michigan cases, Payne v Payne, 241 Mich 547; 217 NW 756 (1928), and Van Houten v Vorce, 259 Mich 545; 244 NW 157 (1932), were decided before Stephenson v Golden, 279 Mich 710, 734; 276 NW 849, 857 (1937) * * White, pp 195-196.
While both sides have advanced plausible arguments, we are persuaded that the "preponderance” and not the "clear and convincing” burden of proof should apply to these facts. This conclusion is not dependent upon plaintiffs citation of Stephenson and White for the proposition that the only standard of proof recognized in Michigan civil law is preponderance of the evidence. That argument is simply inaccurate. The "clear and convincing” standard is an integral part of the civil jurisprudence of this state in such areas as altera tion of a child’s established custodial environment, MCL 722.27(c); MSA 25.312(7)(c), termination of parental rights to the custody of a child, MCL 712A.19a; MSA 27.3178(598.19a), In re LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), and fact situations illustrated by Pattyn, Guzorek and Van Houten, supra. Furthermore, White’s intimation that Stephenson sub silentio overruled Van Houten and Payne v Payne, 241 Mich 547; 217 NW 756 (1928), is untenable in view of the fact that Guzorek and Pattyn, both decided after Stephenson, reiterated the "clear and convincing” standard.
In adhering to the "preponderance” standard in this case we distinguish the cases relied upon by defendants, all of which involved an alleged oral contract to convey realty. The jealousy with which the law has historically guarded transfer of title to real property may explain the higher standard of proof required there and serves as a point of distinction between those cases and the instant suit. Furthermore, none of defendants’ cited cases were jury tried. There was therefore no problem with explaining to a jury the quantum of evidence required to satisfy the clear and convincing evidence standard, as would have been necessary in the case at bar. McCormick, Evidence (2d ed), § 340, pp 796-798. The trial judge therefore properly submitted this dispute to the jury under the preponderance of the evidence standard of proof. Contrary to defendants’ expressed fears, this procedure does not unfairly weight the balance of justice against the policy underlying the statute of frauds.
Defendants next allege that the trial court erred reversibly by permitting plaintiff to read into evidence the depositions of two witnesses pursuant to GCR 1963, 302.4(3)[3], despite the fact that defendants planned to call the witnesses personally and offered to have them present during plaintiff’s case in chief.
Subrule 302.4 provides in pertinent part:
"Use of Depositions. At the trial * * * any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any 1 of the following provisions:
"(3) The deposition of a witness, whether or not a party, when properly filed in accordance with subrule 306.6(1) or subrule 307.2, may be used by any party for any purpose if the court finds: * * * [3] that the witness is at a greater distance than 50 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition * * *.”
Defendants contend that the phrase "so far as admissible under the rules of evidence” should be interpreted to mean that before depositions are allowed into evidence under subrule 302.4(3)[3] the witnesses would not only have to be 50 miles from the place of trial, but also "unavailable” as defined by MRE 804(a). This argument is illogical because such engrafting of the "unavailability” requirement of MRE 804(a) upon the "50-mile” provision of subrule 302.4(3)[3] would render the latter a mere cipher. If a witness is "unavailable” under MRE 804(a), it is irrelevant whether he is 50 miles from the place of trial. Consequently, the trial judge did not abuse his discretion by admitting the depositions, nor were defendants prejudiced as a result.
Plaintiff cross-appeals the lower court’s order of remittitur. GCR 1963, 527.6. Plaintiff requested damages totalling $314,000, comprised of $89,000 for lost salary ($65,000 per year for the three-year term, less slightly over $105,000 earned from defendants and other sources during that period), $25,000 as one-half value of a condominium, and $200,000 as ten percent interest in the Bay Valley Inn.
Defendants maintain that in reaching its verdict of $130,000 the jury must have calculated plaintiff’s salary for the final two years of the term and then erroneously failed to deduct the approximately $41,000 plaintiff admitted having earned during that period. We disagree.
GCR 1963, 527.6 allows a trial court to order remittitur where the verdict is excessive and not supported by the evidence. As observed by this Court in Burnett v Mackworth G Rees, Inc, 109 Mich App 547, 552-554; 311 NW2d 417 (1981):
"In reviewing the decision of a trial judge to either grant or deny a remittitur or a new trial, this Court must determine whether or not there has been an abuse of discretion. Pippen v Denison Division of Abex Corp, 66 Mich App 664; 239 NW2d 704 (1976), lv den 399 Mich 823 (1977). Where there are no other errors in the trial, remittitur can be ordered only if the verdict is so excessive as to 'shock the judicial conscience’. Id., 674.
"In the absence of any definitive test for determining excessiveness of a verdict, the question apparently turns on the facts of each case and the feeling of the appellate court viewing those facts. This subjective test, often phrased as that which 'shocks the judicial conscience’, is often tempered by an appellate court’s reluctance to interfere with a jury’s disposition of a case.”
While it is possible that the jury added up plaintiffs loss of salary for two years and neglected to subtract his earnings for those years as a setoff, the jury could also have reached its verdict by way of compromise. We note that the present uncertainty could have been obviated had the jury been required to return a special verdict. GCR 1963, 514.
When ruling on a motion for remittitur, the trial judge is not authorized to conduct a de novo review of the jury’s verdict. Pippen, supra, p 674. There is no requirement that a jury verdict be subjected to some sort of logical scrutiny analysis. Indeed, such a requirement should assiduously be avoided. Because the verdict is supported by evidence and does not "shock the judicial conscience”, the trial judge abused his discretion by granting remittitur. We therefore order the original verdict reinstated.
Affirmed in part and reversed in part. Neither side is awarded costs. | [
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Per Curiam.
Defendant was charged with second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm while in the commission of a felony, MCL 750.227b; MSA 28.424(2). A jury found him guilty of manslaughter, MCL 750.321; MSA 28.553, and possession of a firearm while in the commission of a felony. Defendant was sentenced to prison terms of 10 to 15 years for manslaughter and 2 years for the firearm conviction. He appeals as of right.
The charges against defendant arose out of the October 24, 1979, shooting death of Willie Tigue in Ecorse. Sometime prior to the shooting, Tigue had apparently sold defendant a defective dictating machine that he had represented to be a telephone answering device. On the night in question, defendant, a paraplegic, called Tigue over to his specially equipped van to demand his money back. Tigue summoned two of his friends, Deshon Harris and Chester Bryant, who accompanied him into the van. During the course of the argument that followed, defendant drew a pistol from his waistband. Defendant and Tigue struggled over the weapon and five shots were fired, one fatally wounding Tigue. Defendant was wounded in the leg. Defendant testified that he pulled out the weapon because no one was listening to him and because he was afraid of the odds against him in the dispute. He stated that Tigue immediately placed his hand over the weapon and grabbed him by the neck. According to defendant, when the gun first discharged, he was struck in the leg. He denied intentionally shooting Tigue. Both Harris and Bryant testified that defendant drew the gun and pointed it at Tigue. Bryant indicated that the first shot was at Tigue and that it preceded the struggle over the weapon. Harris and Bryant each fled the van as the shooting began. Tigue also ran from the vehicle, but collapsed about 15 feet away. Although defendant drove away from the scene, he promptly turned himself in to the police and was then taken to a hospital.
Defendant argues on appeal that he was denied effective assistance of counsel based upon trial counsel’s failure to discover the prior felony convictions of prosecution witnesses Deshon Harris and Chester Bryant, convictions which might have been used for impeachment purposes. Evidence at a Ginther hearing revealed that Harris was convicted in 1976 for attempted larceny from a building and that Bryant was convicted the same year for receiving and concealing stolen property over $100 and also in 1978 for possession of heroin. The information was obtained by appellate counsel by requesting LEIN Criminal Matter Histories from the state police. Apparently, defendant advised trial counsel prior to trial that he believed the witnesses had criminal records. Trial counsel neither requested such criminal histories nor made a pretrial motion for discovery of the witnesses’ prior convictions. Instead, trial counsel relied upon the unverified representations of the Ecorse Police Department that Harris had no prior convictions and that Bryant’s only prior conviction was for heroin possession. Bryant’s conviction for possession of heroin was not utilized at trial for impeachment.
A criminal defendant is provided with effective assistance of counsel when his attorney performs at least as well as a lawyer with ordinary training and skill in the criminal law and conscientiously protects the defendant’s interests, undeflected by conflicting considerations. People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976). Where a defendant alleges on appeal a specific mistake by counsel resulting in a denial of effective assistance of counsel, the test employed is whether in a trial free of mistake the defendant would have had a reasonably likely chance of acquittal. Garcia, 266; People v Degraffenreid, 19 Mich App 702, 718; 173 NW2d 317 (1969). Here, we believe counsel’s failure to discover and utilize the prior criminal records of witnesses Harris and Bryant was a serious mistake that deprived defendant of a fair trial.
Although we sympathize with trial counsel, who assumed that he could rely upon the initial representation of the police, a defendant is entitled to a more complete investigation into matters directly related to the credibility of prosecution witnesses. As appellate counsel’s investigation has demonstrated, discovery of the prior convictions was not a difficult matter. Moreover, had at least a motion for discovery been made, the onus of verifying the witnesses’ records might have been placed on the police.
During the Ginther hearing, trial counsel indicated that, had he been aware of the prior convictions, he might have declined to use them to impeach the witnesses. Generally, we will not substitute our judgment for that of trial counsel in matters of trial strategy. A difference of trial tactics does not amount to ineffective assistance of counsel. E.g., People v Penn, 70 Mich App 638, 648; 247 NW2d 575 (1976). Trial counsel noted that the jury was apprised of the fact that Harris and Bryant were close friends of the victim, Willie Tigue. Further, he believed, based on the witnesses’ performances at the preliminary examination, that their credibility could sufficiently be called into question by cross-examination regarding inconsistencies between their trial and exam testimony. Finally, counsel felt that the witnesses would be tainted by the implication at trial that the dictating machine sold to defendant by Tigue was stolen. Obviously, there are many methods to attack the credibility of a trial witness. However, the presence of additional methods would hardly make a decision to forego impeachment by evidence of a prior conviction a plausible trial strategy. Trial counsel did not reveal, nor can we conceive of, any strategic advantage that would be obtained by the defense by excluding the prior convictions of Harris and Bryant.
Finally, we cannot agree with the trial court’s conclusion that counsel’s error was unimportant because the testimony of Harris and Bryant did not go to the very heart of the crime charged. The trial court reasoned that because the two fled defendant’s van as the shooting began their testimony was not crucial. The trial record reveals that defendant testified that Tigue grabbed at the revolver before it was even fully drawn, and that the first gunshot struck the defendant in the leg. He stated that he did not intend to shoot Tigue, but that the gun was fired during their struggle over the weapon. Harris and Bryant each testified that defendant drew the weapon and pointed it at Tigue prior to any struggle. Bryant stated that defendant pointed the gun toward Tigue’s face and fired the first shot. Harris also indicated that the shooting was preceded by defendant’s threat to Tigue that he had "killed niggers before”. The discrepancies between defendant’s testimony and that of Harris and Bryant was critical in light of the offense that defendant was ultimately convicted of. Defendant was convicted of manslaughter pursuant to an instruction on the offense of voluntary manslaughter, an instruction that required the jury to find that defendant intended to • kill Willie Tigue. See CJI 16:4:02. The allegations that defendant threatened Tigue, pointed the gun at him and fired prior to the struggle over the weapon tended to prove defendant’s intent. Admission of evidence of the prior convictions of Harris and Bryant might have convinced jurors to disbelieve those two witnesses on this crucial issue; thus, counsel’s error could well have made the difference between conviction and acquittal. Therefore, we conclude that under the standard of Garcia, supra, defendant was denied effective assistance of counsel, mandating retrial.
We have carefully examined defendant’s remaining appellate issues and find the majority of them to be without merit. Defendant was not denied effective assistance of counsel because of trial counsel’s decision not to request an instruction on additional lesser included offenses. The decision to proceed with an all or nothing defense is a legitimate trial strategy. People v Rone (On Second Remand), 109 Mich App 702; 311 NW2d 835 (1981); People v Rone (On Remand), 101 Mich App 811; 300 NW2d 705 (1980). Presumably, upon retrial, the defendant will participate with counsel in choosing among possible lesser included offenses on which instructions should be requested.
The trial court adequately instructed the jury on defendant’s theory of the case by informing it that it was defendant’s contention that the decedent was accidentally killed and that defendant had no intention of killing him. In conjunction with the court’s instructions on the possible verdicts, the burden of proof and reasonable doubt, the jury was apprised that if they accepted defendant’s theory a verdict of not guilty would be in order. Cf. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975); People v Stanley Jones, 69 Mich App 459; 245 NW2d 91 (1976), lv den 401 Mich 831 (1977). Again, upon retrial,, the defense may request a more explicit instruction on the defense theory.
The defense did not object to the trial court’s instruction defining the concept of reasonable doubt, so appellate review is precluded absent manifest injustice. People v Blondell Smith, 108 Mich App 466; 310 NW2d 425 (1981). Here, the instruction, taken verbatim from CJI 3:1:04, did not result in manifest injustice. Contrary to defendant’s contention, the instruction did not shift the burden of proof by requiring the jurors to "have a reason” to doubt defendant’s guilt. Rather, the instruction informed the jury that a reasonable doubt was "an honest doubt based upon reason”. Further, the instruction did not equate a reasonable doubt with the jurors’ "ordinary affairs of life”, cf. People v Albers, 137 Mich 678, 691; 100 NW 908 (1904), but instead compared it to "a state of mind which would cause [the jurors] to hesitate in making an important decision in” their own personal lives. Again, no manifest injustice is apparent.
We also find without merit defendant’s claim that he was denied a fair trial by remarks made during the prosecutor’s closing argument. The remarks were not so prejudicial that their impact could not have been eliminated by curative instruction. The defense’s failure to object therefore precludes reversal in this instance. People v Duncan, 402 Mich 1, 15-17; 260 NW2d 58 (1977).
Finally, we agree with defendant’s last claim, that the jury should have been instructed as to the offense of involuntary manslaughter as well as that of voluntary manslaughter, since the former instruction more accurately comports with the defendant’s theory of the case. See e.g., People v Ora Jones, supra.
Reversed and remanded for new trial.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
Conceivably, the failure to attack the credibility of a witness could be sound trial strategy where it is perceived that the jurors empathize with the witness. Here, trial counsel’s own evaluation of Harris and Bryant belies that possibility.
1 ABA Standards for Criminal Justice (2d ed), The Defense Function, Standard 4-5.2, Commentary. | [
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R. B. Burns, P.J.
Defendant was charged, together with two other men, with committing first-degree felony murder, MCL 750.316; MSA 28.548, first-degree criminal sexual conduct, MCL 750.520b(l)(d); MSA 28.788(2)(l)(d), unarmed robbery, MCL 750.530; MSA 28.798, and breaking and entering an occupied dwelling with intent to commit a felony, MCL 750.110; MSA 28.305. Defendant and a codefendant were convicted of first-degree felony murder following a jury trial. The third individual was tried separately and convicted of felony murder.
Defendant’s conviction arose out of a brutal and bizarre attack on an 86-year-old woman. Defendant and his companions entered the victim’s home before 1 a.m. on May 17, 1980, where they beat, tortured, and sexually abused her for nearly four hours. Two days later the victim died. Defendant raises five issues on appeal, none of which merit reversal.
Defendant first claims that the trial court erred when it submitted tape-recorded instructions to the jury for use in deliberations and that part of the instructions were not reproduced on the tape. The propriety of submitted tape-recorded instructions to the jury is a novel question before this Court. However, in Wagner v State, 76 Wis 2d 30; 250 NW2d 331 (1977), the Supreme Court of Wisconsin upheld a trial court’s contemporaneous tape-recording of the jury charge for the jury’s use in the jury room over the defendant’s objection. We agree with the Supreme Court of Wisconsin that such a practice is not to be encouraged, but that it did not constitute reversible error. The better practice, if the trial court is faced with voluminous instructions and considers it too burdensome to repeat them, would be to contemporaneously tape-record the instructions when given in open court, then call the jury back into the courtroom to replay the instructions if the court deems it necessary. This practice would provide a record of the specific purpose to which the tape recordings were applied.
Defendant claims that different portions of the charge may be emphasized in the jurors’ minds, and that the requirement that they consider the charge as a whole is not met when the jury may play back portions of the instructions in the jury room. However, a reasonable analogy can be made to written instructions, which certainly pose the same potential problem. In People v Medrano, 101 Mich App 577, 583-584; 300 NW2d 636 (1980), we found no error in the trial court’s use of written instructions where the defendant made no showing that the original oral instructions were faulty. In the instant case, defendant is unable to demonstrate any prejudice from the tape-recorded instructions. Therefore, no error can be found.
Regarding the alleged missing portions of the tape, the record reflects that the unrecorded remarks were only introductory statements made by the trial judge. The purpose of instructions is to enable the jury to understand and apply the law to the facts of the case. People v Lambert, 395 Mich 296, 304; 235 NW2d 338 (1975), People v Rone (On Second Remand), 109 Mich App 702, 712; 311 NW2d 835 (1981). The judge’s introductory remarks, therefore, were not crucial, and no error resulted based on their absence.
Defendant next claims that the trial court erroneously denied his motion for a separate trial. The decision to grant or deny such a motion is vested by statute in the trial court’s discretion. MCL 768.5; MSA 28.1028. A defendant must affirmatively show inconsistencies or antagonism between the codefendants’ defenses. People v Hurst, 396 Mich 1; 238 NW2d 6 (1976); People v Gunter, 76 Mich App 483; 257 NW2d 133 (1977). We find no abuse of discretion here, especially because defendant was unable at trial to demonstrate any prejudice which would result from a joint trial. People v Kramer, 108 Mich App 240, 256; 310 NW2d 347 (1981).
Defendant next claims that the trial court abused its discretion in denying his motion for a change of venue. Statutory authority provides for such a change, MCL 762.7; MSA 28.850, but the decision of the trial court will not be overruled on appeal absent a clear abuse of discretion. People v Prast, 105 Mich App 744, 747; 307 NW2d 719 (1981). Defendant cannot meet his burden of showing that the jurors had any preconceived opinions regarding his guilt. People v Marsh, 108 Mich App 659, 669; 311 NW2d 130 (1981). Thus, no abuse of discretion is evident.
Defendant also alleges that the trial court failed to instruct the jury on premeditation. However, premeditation is not an element of first-degree felony murder. MCL 750.316; MSA 28.548. The statute operates to elevate all murders committed in the perpetration or attempted perpetration of an enumerated felony to first-degree murder. People v Aaron, 409 Mich 672, 734; 299 NW2d 304 (1980). Defendant need only have acted with malice, defined as an intent to inflict great bodily harm or acting with wanton and willful disregard of the likelihood that his behavior is likely to cause death or great bodily harm. Aaron, supra, 733. Thus, no premeditation is necessary. Accord, People v Wimbush, 45 Mich App 42, 47; 205 NW2d 890 (1973), lv den 390 Mich 770 (1973). The jury was fully instructed on malice, so there is no merit in this issue.
Next defendant claims reversible error occurred when the judge stated that "the prosecution has introduced evidence of statements it claims were made by either one of the defendants”. No objection was made to this instruction at the trial. Thus, review is precluded absent manifest injustice. GCR 1963, 516.2; People v Anglin, 111 Mich App 268, 285; 314 NW2d 581 (1981). Defendant has failed on appeal to show a manifest injustice in the giving of that instruction. Thus, no relief can be granted on the basis of this issue.
Finally, defendant cites no authority for his claim that transcripts of certain pretrial and bench conferences must be made available for his review. This issue is therefore abandoned. People v Slager, 105 Mich App 593, 600; 307 NW2d 376 (1981).
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T. M. Burns, J.
Plaintiff and defendant were married in 1973. In 1983, plaintiff filed for divorce and defendant counterclaimed. The parties eventually reached a partial property settlement. The partial settlement left open the issues of alimony and plaintiff’s law degree. Defendant subsequently gave up her claim for alimony. On March 3, 1984, the parties also entered into a partial consent judgment which stated in part:
"It is further ORDERED AND ADJUDGED that the issue of whether or not plaintiffs law degree is a marital asset and has a value is left to be decided by this Honorable Court.”
On June 20, 1984, the trial court entered an opinion which made a decision in regard to the law degree. The court held that the law of our state clearly recognized that an advanced degree could be considered a marital asset subject to distribution upon divorce. The court also noted, however, that it would be difficult to place this case in the same category as earlier cases which attempted to rationalize the basis for the concept of an advanced degree as being a marital asset. While the court had expressed doubt as to how to determine the proper value to place on the degree, the court concluded that defendant was entitled to some compensation for the extra contribution toward the support of the family while plaintiff was attending law school. In this case, at the time of the divorce, plaintiff was not practicing law and did not intend to ever practice law. He was employed as the vice-president of human resources at Detroit Receiving Hospital and was receiving $41,-000 per year. No evidence was presented to establish the extent that his law degree had enhanced his potential for promotion. The trial court determined that equity required defendant to be dealt with fairly. The court placed a value of $20,000 on the extra services and worldly goods which defendant gave to the family while plaintiff was attending law school.
Plaintiff claims that the trial court violated the parties’ agreement and that the court failed to make a decision as to whether the law degree was a marital asset. Plaintiff argues that the trial court awarded defendant $20,000 for extra services and that such was not allowed under the consent judgment. Plaintiff contends that a law degree should not be characterized as property and that any award in relation thereto was in violation of the agreement. Plaintiff has appealed from the trial court’s order as of right. We affirm the trial court.
In the absence of fraud, mistake or unconscionable advantage, a consent judgment may not be set aside or modified without the consent of the parties. See Horning v Saginaw Circuit Judge, 161 Mich 413, 414; 126 NW 650 (1910), In re Estate of Meredith, 275 Mich 278, 289; 266 NW 351 (1936), Sauer v Rhoades, 338 Mich 679, 681; 62 NW2d 634 (1954). In Dana Corporation v Employment Security Comm, 371 Mich 107, 110; 123 NW2d 277 (1963), the Supreme Court recognized the strong policy concerns in favor of preventing judicial modification of an agreement between parties as to the facts of a case. In Shahan v Shahan, 74 Mich App 621, 623; 254 NW2d 596 (1977), this Court adopted the language of the Dana Corporation Court and applied it to consent judgments.
The problem in this case is that the consent judgment was not complete. The partial consent judgment stated that the trial court was to be allowed to decide the issue regarding whether plaintiffs law degree was a marital asset and had a value. The obvious intent of that provision was to allow the court to make a determination as to whether the property division should be adjusted to take into account the law degree and the circumstances surrounding its acquisition. Thus, the trial court’s decision in this case was simply one which carried out the terms of the consent judgment and was not one that modified it.
Plaintiff claims that the trial court did not abide by the terms of the consent judgment. We disagree. A fair reading of the consent judgment indicates that the trial court could alter the division of property if the court determined that defendant deserved compensation because of the law degree. It does not mean that the court could grant defendant a different distribution only if the court found a law degree to be a marital asset according to some technical definition of that term. There was no need for the court to determine whether the law degree could be formally classified as a marital asset.
The end sought in the divison of property is a fair and equitable distribution under all of the circumstances. Ripley v Ripley, 112 Mich App 219, 226-227; 315 NW2d 576 (1982). The division is not governed by any rigid rules or mathematical formulas. Ripley, supra. To the extent that the relevant provision of the parties’ consent judgment attempts to alter this function, it is invalid. The parties may not stipulate to a question of law which is contrary to the actual state of the law, let alone stipulate conclusively. Margreta v Ambassador Steel Co, 378 Mich 689, 705; 148 NW2d 767 (1967) , modified 380 Mich 513; 158 NW2d 473 (1968) , Rousseau v Brotherhood of American Yeomen, 177 Mich 568, 573; 143 NW 626 (1913), Detroit v Beckman, 34 Mich 125, 126; 22 Am Rep 507 (1876). The court was required to function within the bounds of the law when making its decision regarding the subject matter left to it by the parties.
The relevant provisions of the consent judgment indicate that the parties were obviously concerned about making an adjustment to the otherwise agreed-upon property division in order to take into account the law degree and the circumstances surrounding its acquisition. The law of this state does not require the court to make a determination as to whether or not an advanced degree can physically or metaphysically be defined as property. See Watling v Watling, 127 Mich App 624; 339 NW2d 505 (1983), and Woodworth v Woodworth, 126 Mich App 258; 337 NW2d 332 (1983), lv den 419 Mich 856 (1984). It is obvious that plaintiff will retain his own law degree. However, this circumstance and those surrounding its acquisition can be considered by the court when it divides the physical property which is capable of distribution as marital assets. A court can consider many circumstances when making a division of property. See Charlton v Charlton, 397 Mich 84, 95, fn 5; 243 NW2d 261 (1976), and Holbern v Holbern, 91 Mich App 566; 283 NW2d 800 (1979). In this case, the trial court correctly focused on the equities involved and properly considered whether plaintiff had compensated defendant for her contributions toward his degree. We will not allow the parties to create a hypothetical question of law by entering an incomplete consent judgment. While divorce cases are reviewed de novo, an appellate court will not substitute its judgment for that of the trial court absent an abuse of discretion. Ripley, supra. Our review of the record convinces us that a $20,000 adjustment to the property division was appropriate.
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Per Curiam.
Defendants appeal by right an order granting plaintiffs’ motion for summary judgment and denying their own. The trial judge held that local governments were pre-empted from enacting ordinances governing the construction of curbs, approaches, sidewalks, driveways, and other concrete exterior flatwork. In so ruling, he held invalid the City of Novi Concrete Ordinance, No. 79-86.
Defendants first contend that plaintiffs should have been barred from obtaining relief in circuit court by their failure to exhaust available administrative remedies. In the lower court, defendants claimed that plaintiffs should have sought review of their claim by the State Construction Code Commission pursuant to MCL 125.1509a; MSA 5.2949(9a). We agree with plaintiffs that this statu tory provision applies only to evaluation of an agency’s performance in enforcing building codes, not to review of a city’s substantive enactments.
Although we do not find that exhaustion was required before seeking judicial relief, the present case does present a factual situation in which the doctrine of primary jurisdiction could profitably have been invoked by the trial judge. See White Lake Improvement Ass’n v City of Whitehall, 22 Mich App 262, 279-284; 177 NW2d 473 (1970). In a case in which pre-emption is claimed based on the pervasiveness of a legislative scheme, the need for administrative expertise prerequisite to judicial action is greatest. We nonetheless proceed to review this case on its merits because resort to the primary jurisdiction doctrine at the appellate level would waste judicial resources.
We note that defendants conceded that parts of the Novi concrete ordinance were pre-empted by the State Construction Code Act of 1972, MCL 125.1501 et seq.; MSA 5.2949(1) et seq., where both the ordinance and the code purported to govern the same types of concrete work (i.e., "floors of garages or any other floors made of concrete within the structure”). Defendants contend on appeal that provisions governing curbs, approaches, sidewalks, driveways, service walks, and concrete slabs (for purposes of this opinion, external flat-work) are not pre-empted.
There is no direct conflict between the ordinance and the code with respect to external flatwork. Plaintiffs can only prevail if the state statutory scheme entirely occupies the field which the municipality seeks to enter. People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977), cert den 435 US 1008; 98 S Ct 1879; 56 L Ed 2d 390 (1978). Our Supreme Court has adopted certain guidelines to aid in determining whether a field has been occupied by the state:
"First, where the state law expressly provides that the state’s authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted. Noey v Saginaw, 271 Mich 595; 261 NW 88 (1935).
"Second, pre-emption of a field of regulation may be implied upon an examination of legislative history. Walsh v River Rouge, 385 Mich 623; 189 NW2d 318 (1971).
"Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption. Grand Haven v Grocer’s Cooperative Dairy Co, 330 Mich 694, 702; 48 NW2d 362 (1951); In re Lane, 58 Cal 2d 99; 22 Cal Rptr 857; 372 P2d 897 (1962); Montgomery County Council v Montgomery Ass’n, Inc, 274 Md 52; 325 A2d 112; 333 A2d 596 (1975). While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor which should be considered as evidence of pre-emption.
"Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest.” (Footnotes omitted.) Llewellyn, supra, 323-324.
We think the pervasiveness of the State Construction Code is strong evidence of an intent to pre-empt. Moreover, the nature of the subject matter demands exclusive state regulation to achieve the uniformity necessary to serve the state’s purposes in regulating construction generally. We do not think the nature of the subject matter of the ordinance calls for regulation adapted to local conditions. Llewellyn, supra, 324.
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Per Curiam:.
Defendant appeals as of right from a judgment entered pursuant to a jury verdict in favor of plaintiff for $20,000 in damages for injuries sustained in an automobile accident.
The relevant facts are not in dispute. On July 19, 1975, plaintiff was driving her 1974 Mustang on the Lodge Expressway near Linwood in the City of Detroit. As plaintiff approached the Linwood overpass, traffic slowed as the expressway narrowed from three lanes to one lane due to construction. Plaintiff was traveling at a speed of approximately five miles per hour when her car was struck from behind by a vehicle driven by defendant, forcing her car into the car in front of her. Plaintiff was thrown foreward and she struck her leg on the armrest of the door. As a result of this accident, plaintiff sustained a hematoma (bruise) on her left thigh which swelled to a large lump. The lump developed into a lipoma, which is a fatty tumor, which became filled with considerable fibrotic connective tissue. Eventually, this tumor had to be surgically removed. The surgery left a scar and a depression around the scar nearly five inches long and three inches wide.
On the first day of trial, prior to selection of the jury, defense counsel indicated that defendant conceded and would stipulate to liability for the accident. The matter proceeded to trial on the issues of whether plaintiff’s injuries met the no-fault threshold, and if so, the amount of damages to which she was entitled.
At the conclusion of its instructions to the jury, the trial court provided them with the following, seemingly unambiguous, special verdict form.
"Verdict
"Question No. 1: Was the defendant’s negligence a proximate cause of an injury to the plaintiff?
"Answer: _(yes or no)
"If your answer is 'no’, do not answer any further questions.
"Question No. 2: Did the injury which plaintiff suffered result in serious impairment of a body function, or permanent serious disfigurement?
"Answer: _(yes or no)
"If your answer is 'no’, do not answer any further questions.
"Question No. 3: What is the total amount of plaintiff’s noneconomic loss damages?
"Amount: $__”
Defendant’s first allegation of error arises from an unpredictable and inexplicable series of events that transpired during the jury’s deliberations. Shortly after the jury commenced its deliberations, the trial court received a note from the jury reading:
"We have answered questions 1 and 2. We have a No answer for question 2. 5 to 1. Are we to decide on an amount for her to receive?”
Defense counsel argued that this note constituted a "verdict” for defendant but the trial court decided that, since it was in the form of a question, the jurors would be called in and questioned. Upon the jury’s return to the courtroom, the court inquired of the foreman whether they had found that there was a serious impairment of a body function. The foreman indicated that the jury had voted "5 to 1 on that question”. The court then determined that the jury should be sent back to deliberate the question of whether the plaintiff had suffered a permanent serious disfigurement. Before sending the jury back to deliberate, the trial court decided to redraft the verdict form to separate the questions of serious impairment of a bodily function and permanent serious disfigure ment. Accordingly, the jury was given a revised verdict form which was identical to the original in all respects except that it required responses to four rather than three questions. The revised portion of the verdict form is set forth below.
"Question No. 2: Did the injury which plaintiff suffered result in serious impairment of a body function?
"Answer: _(yes or no)
"Question No. 3: Did the injury which plaintiff suffered result in permanent serious disfigurement?
"Answer: _(yes or no)
"If your answer is 'no’, as to questions 2 & 3, do not answer any further questions. If your answer is 'yes’ to 2 or 3 then go on to question 4 as to damages.”
Approximately one hour later, the court received another note from the jury which read:
"To question No. 3. We do not feel that her scar is a serious disfigurement, but it is a permanent disfigurement. Can this word 'serious’ be struck from the question?”
The court called the jury back into the courtroom and repeated the instructions on permanent serious disfigurement. Approximately ten minutes later, the jury returned with a verdict in favor of plaintiff in the amount of $20,000.
Defendant claims, on appeal, that the trial court erred in refusing to accept the jury’s findings as they were written in their notes and by not entering a verdict thereon. This claim is not supported by law.
In Rottmund v Pennsylvania R Co, 225 Pa 410, 414; 74 A 341 (1909), the court stated:
"All the authorities agree that the only verdict is that which the jury announce orally in court and which alone is received and recorded as the jury’s finding. Mitchell, J., in Kramer v Kister, 187 Pa 227; 40 A 1008; 44 LRA 432 (1898).”
More recently, the Court of Appeals for the Fifth Circuit held that votes taken in the jury room prior to being returned in court are merely preliminary and are not binding. United States v Taylor, 507 F2d 166 (CA 5, 1975). This Court recently adopted the Taylor rule in People v Mock, 108 Mich App 384; 310 NW2d 390 (1981).
This rule is consistent with GCR 1963, 512.2 which provides:
"The jury agreeing on a verdict shall return into court and announce their verdict. A party may require a poll which shall be by the clerk asking each juror if it is his verdict. If any juror expresses disagreement on such poll and the number of those agreeing is less than required by law, the jury shall be sent out for further deliberation; otherwise the verdict is complete and the jury shall be discharged.”
In People v Fleish, 306 Mich 8, 14; 9 NW2d 905 (1943), the Supreme Court stated that a juror could recant a previous assent to a verdict at any time prior to his express in-court assent at the polling. Accord, Wayne County Prosecuting Attorney v Detroit Recorder’s Court Judge, 64 Mich App 408; 235 NW2d 799 (1975).
No verdict having been reached, it is clear that the trial judge, in revising the verdict form and reinstructing the jury before sending them back for further deliberations, took a proper and reasonable course. The verdict entered by the trial court was the only true and valid verdict.
Secondly, defendant argues that plaintiffs counsel committed error requiring reversal when he intentionally injected the question of liability insurance coverage into the trial. During closing argument, in rebuttal to defense counsel’s closing argument, plaintiffs counsel stated:
"You know, he also said something that I think I have to remark. I have to say to you, he said what he wants is money taken out of Mr. Moore’s pocket and put in her pocket. That is untrue. Whatever award that you render in this case will not, will not, I submit to you, come out of Mr. Moore’s pocket. That is an untruth. And I challenge that statement.”
Defense counsel then asked for permission to approach the bench and, following an off-the-record discussion, plaintiffs counsel continued argument with no further reference to who would pay any potential award by the jury. The record does not reveal whether an objection was made to the argument during the off-the-record discussion, or, if so, whether it was on the grounds now asserted by defendant on appeal; similarly, no motion for a mistrial or request for a curative instruction appears in the record.
Initially, we note that a party who fails to object to the opposing party’s closing argument is precluded from raising the propriety of the argument for appellate review. Warren v McLouth Steel Corp, 111 Mich App 496, 501; 314 NW2d 666 (1981), MRE 103(a)(1).
Although this Court may, under MRE 103(d), take notice of plain errors affecting substantial rights, even though they were not brought to the attention of the trial court, we are not persuaded that plaintiffs counsel’s statement was so improper that any prejudicial effect therefrom could not have been eliminated by a curative instruction if one had been requested upon a timely objection. People v Duncan, 402 Mich 1, 16-17; 260 NW2d 58 (1977); People v Walker, 93 Mich App 189, 198; 285 NW2d 812 (1979).
MRE 411 provides that evidence that a person was or was not insured against liability is not admissible upon the issue of whether he acted negligently or otherwise wrongfully, although it is admissible when offered for another purpose, such as proof of agency, ownership, or control, if controverted, or bias or prejudice of a witness. MRE 411 is consistent with prior Michigan law in excluding evidence of liability insurance, MCL 500.3030; MSA 24.13030. See Committee Note to MRE 411.
The law regarding reference before the trier of fact to available insurance coverage was summarized by this Court in Cacavas v Bennett, 37 Mich App 599, 604; 194 NW2d 924 (1972), lv den 387 Mich 767 (1972), as follows:
"By statute, reference to available insurance coverage is not to be made by any party. MCL 500.3030; MSA 24.13030. It has been repeatedly held that it is reversible error to intentionally interject the subject of insurance if the sole purpose is to inflame the passions of the jury so as to increase the size of the verdict. See Felice v Weinman, 372 Mich 278; 126 NW2d 107 (1964); Benmark v Steffen, 374 Mich 155; 132 NW2d 48 (1965); Cartier v Young, 31 Mich App 151; 187 NW2d 545 (1971). On the other hand, it is not reversible error if the subject is only incidentally brought into the trial, is only casually mentioned, or is used in good faith for purposes other than to inflame the passions of the jury. Morris v Montgomery, 229 Mich 509; 201 NW 496 (1924); Sutzer v Allen, 236 Mich 1; 209 NW 918 (1926); White v Makela, 304 Mich 425; 8 NW2d 123 (1943); Watroba v Detroit, 334 Mich 182; 54 NW2d 212 (1952); Broitman v Kohn, 16 Mich App 400; 168 NW2d 311 (1969).”
In this case, it appears that plaintiffs counsel’s reference to insurance was an effort to rebut defense counsel’s improper attempt to impress upon the jury the fact that his client was unemployed and, therefore, unable to pay a judgment. This case is remarkably similar to Yarabek v Brown, 357 Mich 120; 97 NW2d 797 (1959), where the Court found a "nonreversible standoff” between defendant’s improper effort to get across to the jury the combination of assumed affluence of the plaintiff and the fact and duration of defendant’s unemployment, and plaintiff’s injection into the case of the insurance status of defendant. Here, as in Cacavas, supra, it appears that counsel’s purpose in referring to insurance was to "quench the passions” of the jury improperly influenced by his opponent’s attempt to paint a picture of abject destitution.
Finally, we are not persuaded by defendant’s claim that the trial court committed error by allowing the introduction of evidence of defendant’s intoxication at the time of the accident. Defendant argues that inasmuch as evidence of intoxication relates only to the issue of liability, which had been conceded, such evidence was irrelevant and highly prejudicial.
The admissibility of evidence rests within the sound discretion of the trial court and its determination will not be set aside unless there has been an abuse of discretion. Aetna Life Ins Co v Brooks, 96 Mich App 310, 314; 292 NW2d 532 (1980). In this case, we cannot conclude that the trial court abused its discretion in determining that evidence of intoxication was relevant to the damages aspect of the trial. Smith v Jones, 382 Mich 176; 169 NW2d 308 (1969); Price v Western, 330 Mich 680; 48 NW2d 149 (1951).
Even if the evidence was erroneously admitted, we conclude that it was harmless error. MRE 103(a). Plaintiff’s reference to defendant’s intoxication was very brief and was not pursued by plaintiff’s counsel. Prejudice, if any, resulted from defense counsel’s extensive cross-examination of plaintiff regarding defendant’s condition.
Affirmed.
Costs to appellee. | [
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Per Curiam.
Defendant was convicted following a nonjury trial of second-degree murder, MCL 750.317; MSA 28.549, and felony-firearm, MCL 750.227b; MSA 28.424(2). He was sentenced to consecutive prison terms of 2 years on the felony-firearm conviction and 15 to 25 years on the second-degree murder conviction. Defendant appealed as of right and this Court, in an unreported order, remanded the case to the trial court to allow defendant to file a motion for new trial. An evidentiary hearing was held on July 2, 1982, following which the trial court denied defendant’s motion for new trial. The case is now before this Court pursuant to jurisdiction retained in the remand order.
The motion for new trial was based on an affidavit of prosecution witness Charles Franklin. Franklin stated in the affidavit and testified at the remand hearing that he had perjured himself at defendant’s trial and that, in fact, he had not seen defendant shoot the victim. The trial court denied the motion, stating that Franklin had not been a credible witness at trial and that his testimony had been cumulative and not crucial to the case.
Witness Franklin’s trial testimony was severely weakened by several factors, including his prior inconsistent testimony, evidence of his previous felony convictions and evidence that the prosecutor had agreed to write a favorable letter to the Corrections Commission on the witness’s behalf in exchange for the latter’s testimony. The trial judge stated that he had given Franklin’s testimony little weight and had relied instead on other witnesses and on defendant’s own testimony placing himself at the scene of the crime with a gun in his hand.
This Court will not reverse a trial court’s decision on a motion for new trial absent a clear abuse of discretion. People v Snell, 118 Mich App 750, 767; 325 NW2d 563 (1982). We have reviewed the record and conclude that the trial judge did not abuse his discretion in finding that Franklin’s recanting testimony did not render a different result probable on retrial of the case. People v Snell, supra.
Defendant next contends that the prosecutor’s inquiry during cross-examination of defendant and reference during closing argument to defendant’s pre-arrest silence violated his rights under People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), and require reversal. Defense counsel did not object to the questions or remarks at trial, which precludes reversal absent manifest injustice.
The prosecutor’s references to defendant’s prearrest silence were an apparent attempt to impeach defendant’s direct examination testimony. In People v Bobo, the Michigan Supreme Court held that a defendant’s silence, whether prior to or after arrest, may not be used as either substantive or impeachment evidence consistent with the defendant’s Fifth Amendment privilege against self-incrimination. See, also, People v Karam, 106 Mich App 383, 388-390; 308 NW2d 220 (1981), lv den 414 Mich 870 (1982). However, the United States Supreme Court in Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980), held that cross-examination of a defendant concerning his pre-arrest silence, for the purpose of impeaching his direct examination testimony, does not violate the Fifth Amendment. See, also, Anderson v Charles, 447 US 404; 100 S Ct 2180; 65 L Ed 2d 222 (1980). We conclude that, under federal constitutional law, defendant’s privilege against self-incrimination was not violated.
Notwithstanding the United States Supreme Court precedent, it is possible that the Michigan Supreme Court will continue to adhere to Bobo as a matter of state constitutional law or as a matter of evidentiary policy. Const 1963, art 1, § 17; People v Karam, supra. If a different standard for use of a defendant’s pre-arrest silence is to be formulated, it is within the exclusive province of the Supreme Court to do so. See People v Mosley (On Remand), 72 Mich App 289, 292; 249 NW2d 393 (1976), aff'd on other grounds 400 Mich 181; 254 NW2d 29 (1977).
We have reviewed the record and find that, even if a violation occurred under the state constitution, the error did not result in manifest injustice. The reference to defendant’s pre-arrest silence was relatively brief and was not likely to influence the trial judge sitting as a finder of fact. When this issue was raised on defendant’s motion for new trial, the trial judge stated that he had not considered, defendant’s silence in making his decision. In view of the strong evidence of guilt, we decline to reverse on this basis. People v OBrien, 113 Mich App 183, 201; 317 NW2d 570 (1982); People v Jordan, 105 Mich App 345, 348-349; 306 NW2d 506 (1981).
Defendant next contends that he was prejudiced to a degree mandating reversal because the prosecutor impeached him with evidence of prior convictions of unarmed robbery and malicious destruction of police property when, in fact, defendant’s prior convictions were for attempts to commit those crimes. Defendant did not object to the prosecutor’s questions and, in fact, testified that he had been convicted of unarmed robbery and malicious destruction of police property. In ruling on the motion for new trial, the judge stated that he had not considered the erroneous impeachment evidence in reaching his decision. We have reviewed the record and find no manifest injustice.
Defendant next asserts that the prosecutor’s impeachment of a prosecution witness with evidence of his prior arrest resulted in reversible error. Defendant’s failure to object precludes reversal absent manifest injustice, which is not present here.
This Court has reviewed the record and finds that defendant was afforded effective assistance of counsel under the standard set forth in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).
Finally, we find that the court’s statements at sentencing were supported by the trial record. Defendant is not entitled to resentencing.
Affirmed. | [
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Per Curiam.
Defendant Francis Fodale appeals by leave granted an order of the circuit court denying his motion for summary judgment pursuant to GCR 1963, 117.2(1).
On February 3, 1975, plaintiff Richard Shwary (plaintiff) was working at the Peninsular Steel Company’s warehouse. While assisting a co-worker in removing steel from storage racks, plaintiff was severely injured when a crane operated by the coworker caused bars and rounds of steel to fall on plaintiff’s back.
Plaintiff sued Northern Engineering Corporation (the seller of the crane) and Cranetrol Corporation, which had entered into a contract to inspect, maintain and service the crane.* Plaintiff also sued Francis Fodale (defendant), an inspector for the Michigan Department of Labor who had conducted a safety inspection of the plant before the accident. Plaintiff alleged that it was defendant’s duty to carry out his inspections of the crane and material handling system at Peninsular Steel in a careful and proper manner, without negligence and with due regard for the rules of the common law, the applicable state of the art and/or safety standards and the laws and regulations of the State of Michigan,. Plaintiff also alleged that defen dant, in violation of his duties and in utter disregard thereof, was careless, reckless, and negligent. In addition, plaintiff alleged that defendant’s negligence included, but was not limited to, the following:
"A. Failure to properly and adequately inspect and/ or warn Peninsular Steel as to the unreasonable hazards and risk attendant in the use and operation of its crane and material handling system.
"B. Failure to warn Peninsular Steel of the hazards, dangers, and the unreasonable risk in permitting and allowing steel to be stacked on top of the racks in the area where overhead cranes, and in particular the crane identified as C4, was being used.
"C. Failure to properly and adequately enforce, adopt or make applicable such safety standards and the state of the art as to the use and operation of the crane and material handling system of Peninsular Steel.
"D. Failure to recommend such safety devices as were necessary to eliminate the unreasonable risk and hazards attendant in the use and operation and application of the crane and material handling system of Peninsular Steel with the steel being improperly stacked or warehoused.”
Finally, plaintiff alleged that as a direct and proximate result of the negligence of defendant, he and his wife suffered injuries and damages.
Defendant moved for summary judgment under GCR 1963, 117.2(1), alleging that plaintiff had failed to state a claim upon which relief could be granted on the ground, inter alia, that defendant was entitled to governmental immunity. The circuit court denied the motion.
We reverse.
On appeal, defendant contends that the circuit court erred in denying his motion for summary judgment. Plaintiff, in response, contends that defendant is not entitled to governmental immunity under MCL 691.1407; MSA 3.996(107) since he was performing duties that were "ministerial” rather than "discretionary” in nature. We regard this distinction as irrelevant.
In Gaston v Becker, 111 Mich App 692; 314 NW2d 728 (1981), in a well-reasoned opinion, Judge Bronson pointed out that a majority of the Supreme Court has apparently rejected the "ministerial-discretionary” standard. Thus, reviewing courts need not decide whether employees were performing duties that were discretionary in nature in order to determine whether the employees are entitled to governmental immunity. Rather, "the proper test to apply is merely whether the [employees] were acting within the scope of their employment. If so, they cannot be held liable”. Id., 698.
A number of panels of this Court have continued to apply the ministerial-discretionary test. See, e.g., Cook v Bennett, 94 Mich App 93; 288 NW2d 609 (1979); Vargo v Svitchan, 100 Mich App 809; 301 NW2d 1 (1980); and Fuhrmann v Hattaway, 109 Mich App 429; 311 NW2d 379 (1981). We believe that these decisions reflect a misapprehension of the Supreme Court’s multitude of opinions in Lockaby v Wayne County, 406 Mich 65, 83-84; 276 NW2d 1 (1979), and, therefore, we decline to follow them.
Plaintiff does not contend that defendant’s acts were ultra vires or outside the scope of his employment. Since plaintiff has failed to allege sufficient facts in avoidance of governmental immunity, the circuit court erred in denying defendant’s motion for summary judgment.
Our disposition of the foregoing issue renders it unnecessary to address defendant’s remaining claim of error.
Reversed. Defendant may tax costs.
Plaintiffs have entered into a settlement with these two defendants, so they are no longer parties to this action. | [
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Beasley, J.
Defendants, Allan and Sharon Hooper, appeal as of right from a grant of summary judgment in favor of plaintiff, Kiesel Inter-county Drainage Board, under GCR 1963, 117.2(2) and (3), now MCR 2.116(C)(9) and (10). The dispute involved a drain established in 1905. Defendants jointly owned land through which the drain flowed. Plaintiff claims that defendants were interfering with its right-of-way by placing junk cars along the bank of the drain, thereby interfering with plaintiff’s cleaning, deepening, widening and straightening of the drain. Defendants denied the existence of a valid right-of-way, alleging that the original 1905 release of right-of-way had not been signed by the property owner and, further, had not been recorded or registered until 1974. Defendants also claimed that a 1976 conveyance of right-of-way, signed by defendant Allan Hooper, was not valid since it was not signed by the joint owner of the land, defendant Sharon Hooper.
At the hearing on the summary judgment motion, plaintiff abandoned any claim under the 1976 grant of right-of-way from defendant Allan Hooper. However, the existence of a 1905 document granting an easement in the drain purportedly running three rods (slightly less than 50 feet) from the center line on each side of the drain was established. This 1905 release of right-of-way was on file with the Bay County Drain Commissioner. Plaintiff further stated at the hearing that it only wished to use the six-rod width provided in the 1905 release of right-of-way.
Defendants challenged the validity of the 1905 release of right-of-way by asserting that the 1905 property owner never signed the document. The abstract of title indicated that in 1905 the property was owned by Joseph Carl Warner, but the right-of-way was granted by Charles Warner, the son of Joseph Carl Warner. For purposes of the motion, plaintiff conceded the historical facts surrounding the 1905 release and defendants conceded that plaintiff is entitled to the easement as it actually physically exists (only the approximately 20-foot width of the drain), but to no more than that. The record indicates that defendants acquired title in 1972, pursuant to a 1966 land contract.
Since plaintiff has not yet proved a valid conveyance of a right-of-way, the trial court’s grant of summary judgment depends upon the 1968 amendment to the Drain Code of 1956 (MCL 280.6; MSA 11.1006), which provides as follows:
"Sec. 6. All established drains regularly located and established in pursuance of law existing at the time of location and establishment and visibly in existence, which were established as drains, and all drains visibly in existence in written drain easements or rights of way on file in the office of the commissioner, shall be deemed public drains located in public easements or rights of way which are valid and binding against any owners of any property interest who became or hereafter become such owners after the location and establishment of the drain or the existence of the drain became visible or the written drain easement or right of way was executed, and the commissioner or drainage board may use, enter upon and preserve such easement or right of way for maintenance of the visible drain and any other lawful activity with respect to the same not requiring a larger or different easement or right of way and may exercise any rights granted in the written easement or right of way on file in the office of the commissioner.”
No published judicial decisions have interpreted this statute. Thus, this case presents an issue of first impression in this Court.
Like so many statutes, this one presents a severe challenge to those who would seek its meaning solely from its words. In the grammatical sense, two subjects are involved. First are those established drains which are (1) regularly located and established in pursuance of the law existing at the time of location and establishment and (2) visibly in existence. Second are those drains visibly in existence in written drain easements or rights-of-way on file in the office of the commissioner. The drain in issue here can be arguably placed in either category.
Plaintiff argued, and the trial court found, that the statute provides plaintiff with an independent basis for asserting a right-of-way to maintain the clearly visible drain. Under the statute, the 1905 conveyance was not needed to provide plaintiff with a right-of-way. Thus, defendants’ defenses pertaining to the 1905 right-of-way were not controlling or relevant. Defendants admitted that the lawfully established drain was clearly visible when they took title to the land. In addition, defendants presented no defenses to operation of this portion of the statute as the trial court interpreted it. Consequently, the trial court found summary judgment was appropriate.
We agree with the trial court’s interpretation and application of MCL 280.6; MSA 11.1006. The púrpose of the statute is to quiet title in land used for the actual flow of water in, and the maintenance of, established public drains. The first provision of the statute cited above creates a public easement for drains regularly located and established in pursuance of law and "visibly in existence”. The language of the statute, and a common sense interpretation of legislative intent, do not appear to restrict such a statutory easement to the actual water flow area of the drain. As the trial court noted, visible public drains require more than a drain bed and include a reasonable area for maintaining the drain.
The language of the statute deems these established visible drains as "public drains located in public easements or rights of way”. We conclude that the scope of such public easements or rights-of-way can, pragmatically, include a reasonable area for the maintenance of the public drain. Support for this conclusion is found in MCL 280.74; MSA 11.1074, which states that rights-of-way "shall be deemed to include sufficient ground on each side of the center line of such drain for the deposit of the excavations therefrom”.
In summary, this first provision of MCL 280.6; MSA 11.1006 provides for a public right-of-way based solely on the fact of a regularly located and established drain physically visible at the time a property owner takes title. We believe the Legislature intended such a right-of-way to include an area for excavations from the drain and, implicitly, subsequent maintenance activities related to the drain. The physical visibility of the public drain put defendants on notice of plaintiffs interest in the land, and gave them opportunity to inquire into and challenge the extent of plaintiffs interest at the time they acquired title to the land. The asserted invalidity of the 1905 conveyance of a right-of-way is not relevant to the application of MCL 280.6; MSA 11.1006 to plaintiff’s interest in this case. Therefore, the trial court’s order of summary judgment under GCR 1963, 117.2(2) was proper as a matter of law.
However, the first provision of MCL 280.6; MSA 11.1006 discussed above does not define the specific area included in a public right-of-way for the purpose of maintaining the drain. Thus, under this first statutory provision, a court is required to define a reasonable maintenance area which constitutes plaintiff’s right-of-way. We do not believe that this Court, on this record, is the appropriate forum in which to review and decide the factual issues involved in defining the scope and extent of plaintiffs maintenance easement.
However, the second provision of the statute cited above allows us to avoid this problem in this case. This second provision creates a valid public easement for drains "visibly in existence in written drain easements or rights of way on file in the office of the commissioner”. Whether valid or not, the 1905 release of right-of-way involved in this case was on file in the office of the Bay County Drain Commissioner and, thus, under the second cited provision of the statute, is deemed a valid public easement. We agree with the trial judge that this provision of the statute was intended to cure any defects and quiet title in rights-of-way on file with the drain commissioner. If, as defendants argue, this provision only applies to already valid grants of rights-of-way, it would serve no purpose, since such grants would be valid without the statute. We refuse to interpret the statute in a way that causes it to serve no purpose.
As the statute states, the scope of the easement created under this second provision is that found in the written right-of-way on file with the drain commissioner. In this case, the parties agree that the specifications of the original drain project called for, and the 1905 release of a right-of-way granted, a distance of three rods from the center of the drain for the purpose of maintenance. Plaintiff states that this is all that is required for its maintenance procedures. Plaintiff also states that this easement has been adequate for the prior two maintenance operations in 1947 and 1951 that have been performed on the drain since its construction in 1905. We conclude that the trial judge properly granted plaintiff the three rod right-of-way in his order of summary judgment based on this second provision of MCL 280.6; MSA 11.1006.
In arriving at this conclusion, we also note that defendants’ argument that, even if the statute validates the 1905 release of right-of-way, plaintiff was obligated to record the release with the register of deeds is without merit. As noted in Hodgeson v Genesee County Drain Comm’r, 52 Mich App 411; 217 NW2d 395 (1974), lv den 391 Mich 843 (1974), there is no need to record grants of easements that existed prior to 1955, when the law requiring recording was enacted.
Affirmed. | [
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Per Curiam.
This case presents a question of the liability of a social host for torts committed by a minor guest who is served alcohol by the host. Defendant Youngstrom moved for summary judgment pursuant to GCR 1963, 117.2(1) and (3), now MCR 2.116(C)(8) and (10). Summary judgment was granted pursuant to 117.2(1).
The following facts were pled and we accept them as true. Bryan Jon Traxler was killed while a passenger in an automobile driven by defendant Jeffrey Koposky. Koposky was operating his car at a high rate of speed on southbound Business 31 in Oceana County when the car left the roadway and struck a tree. Prior to the accident, Koposky attended a wedding reception at the Elvon L. Chadwick VFW Post #6017 in Pentwater. Defendant Youngstrom had rented the VFW hall for the reception. Allegedly, at the reception defendant Youngstrom, or his agent, knowingly furnished alcoholic beverages to Koposky, who was less than 21 years of age, and/or failed to make diligent inquiry as to whether Koposky was less than 21 years of age, thereby violating MCL 436.33; MSA 18.1004(1). Violation of the above statute was allegedly a proximate cause of the accident which resulted in decedent’s death.
This case is controlled by the recent Supreme Court decision in Longstreth v Gensel, 423 Mich 675; 377 NW2d 804 (1985). The facts in Longstreth are remarkably similar to those in the case at bar. In that case, the social host at a wedding reception served alcohol to the plaintiffs’ 19-year-old decedent. The decedent later became involved in a fatal automobile accident. The Court held that the social host was liable for serving the minor alcoholic beverages. If the social host is liable where the injured party is the imbiber, then certainly the host is liable where the injured party is the imbiber’s passenger. Thus, the trial court erred in granting summary judgment.
Our disposition of this matter renders it unnecessary to consider plaintiffs’ theory of a breach of a common-law duty. Additionally, we do not find it necessary to address the parties’ arguments concerning defendant’s proposed defenses based upon decedent’s allegedly wrongful conduct and that defendant did not personally serve alcohol to Koposky. The trial court did not rule on those defenses below, therefore the issues are not properly before us. On remand, defendant is free to assert these defenses, though we offer no opinion on their viability.
Reversed and remanded for further proceedings consistent with this opinion. Costs to plaintiffs. | [
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Bashara, P. J.
Defendant was convicted of forcible rape, MCLA 750.520; MSA 28.788, by a jury in the Saginaw County Circuit Court. He was sentenced to life imprisonment and appeals as of right.
On the evening of October 21, 1971, complainant, a 17-year-old girl, had completed her shopping at a local K-Mart store and had walked to her car in the store’s parking lot. The victim alleged that she entered the car but was prevented from closing the car door by three men, one of whom she later identified as defendant, Martin Vargas. The men forced their way into the girl’s car and drove to a secluded park where they repeatedly raped and severely beat her. After the girl’s eventual release, she contacted the police and received medical care at a nearby hospital.
The first of four alleged errors claimed by defendant concerns the trial court’s instruction to the jury. The court had charged as follows:
"Under our modern statutes, one on trial for a crime is not allowed to testify under oath in his own behalf, his interest in the result of the trial formerly precluded his testifying.”
Defendant contends that the judge confused the jury on the correct state of the law regarding a defendant’s basic right to testify in his own behalf. As no objection was made to the court’s instruction we are required to review the error for "manifest injustice”. People v Bennett, 46 Mich App 598; 208 NW2d 624 (1973). In so reviewing the alleged error, this Court considers the instructions as a whole. People v Edwards, 47 Mich App 307; 209 NW2d 527 (1973). A reading of the instruction in such manner reveals that the word "not” in the quote above represents the only flaw in an otherwise proper set of instructions. It is also significant that immediately before the controverted instruction the trial court charged:
"The respondent, or the defendant, has been a witness before you, and he has a right to be. You have the right to weigh his testimony, give it such' credit that you think it’s fairly entitled to. You have a right to take into consideration in weighing his testimony, his relation to the offense charged in the Information”.
Viewing the instructions as a whole, and the fact that defendant was allowed to testify before the jury, it is our opinion that the alleged error was inadvertent, harmless and did not constitute manifest injustice.
Defendant next argues that the prosecution used improper and prejudicial innuendoes about defendant’s credibility during its closing rebuttal statement. The prosecutor’s remarks were in the nature of questions posed to the jury asking them to determine if the defendant had cut his hair, reddened his eyes or wore high-heeled shoes in an effort to deceive them. A prosecutor, in Michigan, can comment on evidence as it relates to the defendant’s credibility and draw inferences therefrom. People v Kyles, 40 Mich App 357; 198 NW2d 732 (1972). It is evident from a reading of the transcript that defendant argued misidentification as a chief defense, emphasizing contradictory testimony of height, hair, and eye color during his closing argument. The prosecutor’s remarks fell within the guidelines of Kyles, supra.
The basis for defendant’s third claim of error was the admission into evidence of claimed incompetent hearsay testimony by the victim’s physicians as to the circumstances of the crime. The physicians were permitted to testify to the date and location of the rape as related to them by the victim. A treating physician may testify to a patient’s statements in regard to his present condition, Mulliken v City of Corunna, 110 Mich 212; 68 NW 141 (1896), but generally may not testify to circumstances under which injuries were sustained, Thirkill v Kansas City Life Ins Co, 278 Mich 588; 270 NW 797 (1937). However, it is also law in Michigan that the admission of incompetent hearsay testimony may be considered harmless error where the same facts are shown by other competent testimony. People v Dykes, 37 Mich App 555; 195 NW2d 14 (1972); People v Harrison, 49 Mich App 546; 212 NW2d 278 (1973). The error here was harmless as other evidence of the date, location and force used by the assailants was elicited by the victim, her parents, and the police. This is not a situation where inadmissible hearsay testimony went to a defendant’s description, number of attackers, or gruesome details of the crime. Further, it was never defendant’s contention that a rape did not occur. His defense was alibi and misidentification. We find that the physician’s testimony of date, place and force did not prejudice defendant’s trial and were supported by other competent testimony.
Finally, defendant alleges error by the court in not requiring corroborative evidence of the eyewitness identification of defendant by the complainant. On the prosecutor’s own motion, an evidentary hearing was held to test the validity of pre-trial identification procedures pursuant to People v Anderson, 389 Mich 155; 205 NW2d 461 (1973). A result of the hearing was that the procedures were found to be unsuggestive and fairly conducted. We therefore reject this argument.
In viewing the conduct of the trial in its totality we cannot say that reversible error was committed.
Affirmed.
All concurred. | [
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Per Curiam.
The defendant was convicted by a jury of felonious assault, MCLA 750.82; MSA 28.277, and received a suspended sentence. On appeal, defendant challenges the failure of the trial court to require the prosecutor to indorse the names of three persons on the information as res gestae witnesses. He also contends that it was reversible error for the prosecutor to examine a witness on rebuttal as to facts which tended to prove the commission of the crime or its surrounding circumstances. Our decision relative to the first contention renders unnecessary consideration of the second.
On October 5, 1971, defendant was performing his duties as a sweeper at the General Motors Assembly Division in Willow Run; similarly employed was the complainant, Terry Robinson, who began sweeping debris into an aisleway so that it could be picked up by a mechanical sweeper. Unfortunately, the particular aisleway in which Mr. Robinson was depositing the debris had only recently been cleaned by defendant. The two men became involved in a shouting match which was ended by the intercession of defendant’s foreman, Gerald Nightingale.
According to defendant’s version of the incident, he informed Robinson that he should not have been sweeping the debris into the aisleway. According to defendant, the complainant then called him a "nigger” and defendant was thereupon threatened, not only by the complainant but also by his cohorts.
As is often the case, the incident was not concluded when the dispute was interrupted by the foreman Nightingale, but continued in the plant parking lot after the shift change. According to the testimony of Robinson, the defendant greeted him in the parking lot with a gun and began waving it in his face and told him that if he crossed his path again he, the defendant, would kill him. The complainant’s version of this part of the affair was corroborated by the testimony of two other employees, Marion Bowden and Michael Hamilton.
Although the complainant was able to unearth two witnesses who could testify that the appellant was holding a gun during the altercation in the parking lot, the appellant was able to produce four witnesses in his behalf who were able to testify that they did not see the appellant holding a gun at that time, those witnesses being Willie Brown, Nathaniel James, Jesse Cocstan, and Ulysses Austin.
During his testimony, the defendant declared that he had filed a complaint with the plant department of labor relations, specifically to one Jerry Bennett.
During rebuttal testimony, Jerry Bennett testified that the defendant admitted that he pointed a gun at the complainant during the altercation in the plant parking lot.
Also testifying on rebuttal for the prosecution was Rex Morse, who was present when the defendant allegedly made the incriminating statement to Mr. Bennett, the labor relations representative. However, Mr. Morse was not able to state unequivocally that the defendant admitted holding a gun on the complainant during their altercation in the parking lot.
As noted above, the dispositive issue is whether it was prejudicial error for the prosecuting attorney to refuse to indorse and call all available res gestae witnesses to testify during the prosecution’s case in chief.
During the cross-examination of the defendant by the prosecutor, the prosecution requested a continuance so that he could review a report allegedly made by the defendant to the labor relations department at the plant. The defendant was the first witness for the defense.
Immediately after this request by the prosecuting attorney, the defendant moved that the prosecution indorse three individuals as res gestae witnesses, namely: Gerald Nightingale, a foreman at the plant; an individual identified only as Wilfred, an employee; and another employee by the name of Jimmy Williams. Gerald Nightingale was the individual who acted as a mediator in the fracas which began when the complainant swept debris into an aisle which had just been swept by the defendant. The individual identified as Wilfred had accompanied Marion Bowden, an employee who testified on behalf of the prosecution, to the parking lot and therefore presumably was able to view the incident as well as Mr. Bowden. Jimmy Williams was also a plant employee who accompanied Michael Hamilton, another prosecution witness, to the parking lot on the day in question, and also presumably had a view of the altercation between the complainant and the defendant.
Relevant Michigan law provides:
"All information shall be filed in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. * * * Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.” MCLA 767.40; MSA 28.980.
The recent decision of this Court in People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973), is a veritable compendium of authority on the law of the indorsement of res gestae witnesses and, therefore, the case at bar will be examined with reference to that opinion.
The initial issue that must be faced is whether the defendant’s motion to indorse was timely. The Court in Harrison held:
"Generally, permitting the late indorsement of witnesses is within the discretion of the trial court [citations omitted]. However, the discretion thus entrusted to the trial judge is not unfettered; it must be exercised with due regard for the defendant’s right to a fair trial.” 44 Mich App 578, 585; 205 NW2d 900, 905.
The Court further held that:
"As to the timeliness of a motion to endorse specified witnesses after the filing of the Information, trial courts have been frequently upheld when they permitted prosecutors to indorse witnesses on the day of trial * * * or even after trial has begun * * * and in extreme cases after defendant rested [citations omitted].” 44 Mich App 578, 586; 205 NW2d 900, 905-906.
Most importantly, the Court stated:
"We consider it only fair that defendants be extended the same leeway as prosecutors in having witnesses indorsed after the filing of the information.” 44 Mich App 578, 587; 205 NW2d 900, 906.
There is one rule pronounced by the Court in Harrison which applies directly to the request of the defendant to indorse Gerald Nightingale. The Court held that:
"Names of witnesses cannot be indorsed at time of trial where their existence and identity were known earlier, the delay is not satisfactorily explained, and their unanticipated presence at trial would prejudice one of the parties.” 44 Mich App 578, 586; 205 NW2d 900, 906.
The defense had knowledge of the existence of Gerald Nightingale and his relationship to the occurrences on October 5, 1971, inside the assembly division plant. Therefore, it was incumbent upon the defendant to move for indorsement at an earlier time, and the motion to indorse this witness after the prosecution had rested was untimely.
However, the same cannot be said of the other two individuals which the defendant requested that the prosecution indorse. The identity of those two witnesses became known only after the testimony of Marion Bowden and Michael Hamilton, as witnesses for the prosecution, was given on the day of trial. Hence, defendants’ motion requesting the indorsement of these witnesses was timely, since it was made within a reasonable time after their identity became known to the defense. Cf. People v Jones, 38 Mich App 512; 196 NW2d 817 (1972).
The facts in Harrison parallel those in the instant case to the extent that the corpus delicti was viewed by a large number of individuals, and the prosecution chose to indorse and call only certain of those witnesses whose testimony supported the prosecution’s theory of the case. The Court in Harrison, responding to the prosecutor’s assertion that he need only indorse witnesses known to him at the time the information is filed, stated:
"The statute, which refers to the date on which the information is filed, assumes that by that time the prosecutor will have fully investigated the facts. It does not take a great deal of legal acumen or common sense to realize that, out of a crowd of more than 1000 persons, it is highly improbable that only six policemen, and no one else, observed the defendant immediately before, or at the time, he allegedly threw the rock which struck Officer Bunten, and immediately thereafter. Yet the prosecutor made no effort to locate such persons * * * [preferring] to rely stubbornly on what he considered to be a lack of legal duty toward these potential witnesses, to such an extent that his fairness must be considered in doubt, and he will not be heard to object on such technical grounds as timeliness.” 44 Mich App 578, 587-588; 205 NW2d 900, 906-907.
Though the error is not as obvious in the instant case as in Harrison, there is a serious doubt in our minds as to the extent of the prosecutor’s efforts to discover the identity of other individuals, who, in all likelihood, were an audience to the parking lot altercation between the complainant and defend ant. The apparently selective indorsement of pro-prosecution witnesses convinces us that the doubt must be resolved in defendant’s favor. To so hold furthers one of the underlying purposes of the indorsement statute, i.e., preventing the suppression of testimony favorable to the accused.
We conclude that it was reversible error for the trial court to deny defendant’s motions to require the prosecutor to indorse Jimmy Williams and Wilfred as res gestae witnesses.
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Lesinski, C. J.
This appeal is taken from a writ of mandamus issued by the Honorable Horace W. Gilmore on behalf of the plaintiff Detroit Federation of Teachers, compelling the defendant, Detroit Board of Education, to comply with MCLA 340.569; MSA 15.3569. The language from this section upon which the trial judge based his order provides:
"The board of every district shall hire and contract with such duly qualified teachers as may be required.”
The writ of mandamus appealed from ordered the Detroit Board to:
"comply with said Section 569 of the School Code of 1955, as amended, and specifically, to enter into individual, written contracts as attached hereto (being the defendant’s standard probationary contract form), with all certificated teachers (whether or not heretofore denominated 'emergency substitutes in regular positions’ [ESRP’s], and not already on continuing, annual or probationary contracts), who, on or about January 15, 1973, were assigned to teach in a regular position (i.e., other than as a temporary replacement for another teacher on illness or temporary disability leave), for the school year 1972-73 * * * and further provided that in the event a dispute arises as to inclusion of any teacher in said class, the Court reserves jurisdiction to determine as necessary the identity and individual effective dates of persons in the said class * * * .”
The primary factor precipitating this lawsuit was the adoption by the board of the following recommendation of its personnel committee on February 8, 1972:
"Teacher assignments and all other assignments of new or returning personnel shall be made as E.S.R.P. [emergency substitute in regular position] assignments, not as regular or probationary appointments.”
The Detroit board by adopting this policy was in effect avoiding its responsibility under the School Code, § 569, to contract with duly qualified teachers, and further was seeking to evade its responsibility under the teachers’ tenure act, MCLA 38.71, et seq.; MSA 15.1971, et seq., to provide tenure to qualified teachers giving satisfactory performance after a probationary period. We find that the order of Judge Gilmore properly and effectively remedied these board violations of state law and should be upheld on appeal.
The board contends that this action was not proper for the issuance of a writ of mandamus. In Toan v McGinn, 271 Mich 28, 33; 260 NW 108, 110 (1935), the Court, quoting from Miller v Detroit, 250 Mich 633; 230 NW 936 (1930), stated the applicable rule for issuance of mandamus:
"The writ of mandamus being a discretionary one, its issuance should not be directed unless there is a clear legal duty upon the part of defendant, and a clear legal right in plaintiff to the discharge of that duty.”
In the instant case, the board had a clear legal duty under the cited legislative provisions to contract with duly qualified teachers and afford them tenure after a probationary period. Mandamus was properly issued. The language in § 569 of the School Code making the duty to contract "as may be required” does not alter the mandatory nature of the duty to contract. Furthermore, it does not make the duty to contract "discretionary” so as to defeat mandamus. The teachers involved in this dispute were already employees of the board. The determination that they were required had already been made. The board cannot avoid its clear legal duty to contract with qualified, certified teachers by labeling them "emergency substitutes in a regular position”, thus in effect making them permanent "substitutes” who although qualified and laboring for the full school year on a regular day-to-day basis are denied probationary contracts and the possibility of tenure guaranteed by the tenure act.
The board further contends that Judge Gilmore’s order, by specifying that the board contract with all regular teachers as defined in the order and by specifying the contract to be used, i.e., the standard probationary contract, violated the terms of the collective bargaining agreement entered into by the parties and the past practices of the parties. Granting the provisions in the bargaining agreement applying to a class of teachers denominated as "emergency substitutes in a regular position”, the agreement never specifically defines the nature of that position. Neither the court below nor this Court have any desire to rewrite the bargain of the parties or to dictate to the board whom they may hire or the specific terms of the contract. We agree with the board that the number of teachers hired, the specific terms ancillary to individual contracts, and the use and scope of "E.S.R.P.s” are matters for the bargaining table.
All that we hold, and all the trial court held, is that the board cannot avoid statutory responsibilities by playing with labels. The School Code re quires that the board contract with qualified teachers. The tenure act provides for the granting of tenure after a specified probationary period. The board, by assigning qualified personnel teaching on a regular basis to the "E.S.R.P.” denomination, was in effect creating permanent "substitutes” who did not receive contracts, and who might not acquire tenure. Judge Gilmore’s specification of the board’s own probationary contract did no more than protect the statutory rights of teachers in the defined class. Issuance of any other contract would have raised serious equal protection problems.
Whatever the past practice of the parties, and whatever special provisions were made in the agreement for "E.S.R.P.s”, the board’s policy violated clear statutory duties. The violation of these duties was properly remedied by mandamus. The order issued by the lower court carefully reserved factual disputes as to which teachers came within the order to its jurisdiction. Numerous hearings were subsequently held defining the class. We can find no error in the propriety of the order or the execution of the remedy below.
Affirmed. No costs, a public question being involved.
All concurred. | [
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Peterson, J.
Plaintiffs prevailed below in their claim for damages for breach of a contract for the sale of a business and breach of the lease of the business premises. Defendants assert that the trial court erred in finding that there was an actionable breach, in rejecting certain claimed affirmative defenses, and in denying their counterclaim for recission or reaffirmation of the contract because of alleged fraudulent misrepresentations by the vendor-plaintiffs.
Neither of the defendants were novices in the furniture business. To the contrary, both were experienced businessmen. In 1966, Smeekens was the general manager of a chain of furniture stores and French was the manager of one of the stores of that company. French learned that Mr. Phillips might be interested in selling his furniture business. He visited Phillips’ store and made some overtures towards purchase, which Phillips rejected because of the belief that French had insufficient capital. French then opened a furniture store of his own in another community, but he retained his interest in acquiring the Phillips’ business and later approached Smeekens for financial backing for that purpose.
On July 25, 1967, French and Smeekens had lunch with Phillips, indicated their interest in buying his business and arrived at an agreement with him for the purchase. Whether they negotiated in terms of the dollar values of specific assets and liabilities of the business was disputed at trial, but it was defendants’ claim that Phillips made affirmative representations as to the specific values of inventory, equipment and fixtures, and accounts receivable and payable. They further claimed that their real agreement with Phillips was to purchase the property at the value of the assets, without any payment for good will. Their agreement as written, however, merely stated a purchase price of $140,000 for the going business. The contract of sale and lease of the business premises were executed three days later, on July 28th, and defendants took possession and began their operation of the business on August 1st.
Defendants claim that they were almost immediately aware of discrepancies to their detriment between the amounts of inventory and accounts receivable and payable as allegedly represented and as found, and that they began a verification thereof. On September 6th they met with Phillips, told him of their claimed findings, and told him they intended to rescind the transaction. Phillips was willing to accept their figures as to inventory, but he did not admit any misrepresentation; and plaintiffs own testimony admits that he disputed their computations of accounts receivable and payable. Defendants testified that Phillips promised to do right and pleaded with them that he didn’t want to take back the business because of poor health.
The parties concluded their meeting by an agreement to reduce the sales price by $55,000, going ahead with the transaction at a revised purchase price of $85,000. Defendants immediately had their attorney prepare a revised sales agreement, to which he procured Phillips’ signature that same day. By the terms of the revised agreement, Phillips acknowledged that a representation had been made that the net assets of the business were worth at least $140,000, that the price originally agreed upon was based thereon, that the representation was false, that defendants could have rescinded the transaction had they so desired, and that their agreement to continue the purchase rather than rescind was the consideration for Phillips’ agreement to reduce the purchase price.
Thereafter defendants continued to operate the business. Further disputes arose between the parties, however, about the business records, amount of payables, and the amount and collectability of receivables. To some extent at least, Phillips did attempt to meet the "do right” demands of defendants by thereafter paying some of the accounts payable, and by taking from defendants (as payment on the purchase price) some accounts receivable which defendants deemed uncollectable. Thereafter there were further disputes between them not relevant to this appeal.
Defendants eventually ceased payments on both the purchase agreement and the lease and this action followed.
The trial court found no actionable fraudulent misrepresentations in connection with the revised agreement of September 6th. Defendants claim that his findings were inadequate and did not go to the principle point they raised at trial of discrepancies in accounts payable and receivable, pointing to the trial judge’s finding that "defendants have not proven that they relied upon any representation made by the plaintiffs as to the inventory in signing the second agreement”. Át a later point in the opinion, however, the trial judge made clear his conclusion that there was no misrepresentation relied upon by the defendants as to inventory and accounts receivable, noting that they dealt at arms length because of their prior experience under the first sales agreement and that they were on notice that there was some question as to the inventory, accounts receivable, and accounts payable.
It is not disputed, of course, that a fraudulent misrepresentation is not actionable unless relied upon by the damaged party. Michael v Jones, 333 Mich 476; 53 NW2d 342 (1952). Defendants assert, however, that this was a continuing fraud and that they relied upon the promise of Phillips to do right in executing the revised agreement. Unfortunately, they entered into an agreement at a specific price, with knowledge of what they claimed to be a false misrepresentation of inventory and in the face of their own claimed knowledge of a dispute as to the amount of accounts receivable and payable. But one cannot rely on a representation where he knows other representations in the same transaction are false. Gratz v Schuler, 25 Cal App 117; 142 P 899 (1914); 61 ALR 513. Defendants are even less entitled to rely on such representations where they are the ones affirmatively claiming knowledge of discrepancies in the accounts receivable and payable at the time of the agreement.
Defendants had the burden of proving the elements of a fraud action by clear and convincing evidence, Margolis v Benton, 343 Mich 34; 72 NW2d 213 (1955). A review of the record discloses that we would arrive at no different findings than those of the trial court. Christine Bldg Co v City of Troy, 367 Mich 508; 116 NW2d 816 (1962).
We find no merit to the other claims of error.
Affirmed.
All concurred. | [
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PER CURIAM.
Plaintiffs, Department of Agriculture and Michigan Apple Committee, appeal as of right the trial court’s order granting in part and denying in part their motion for summary disposition. Because the remedies conferred by the Agricultural Commodities Marketing Act (ACMA), MCL 290.651 et seq., are the exclusive remedies for a violation of the act, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Steven Rropf was the manager and the sole member of defendant Appletree Marketing, L.L.C. (Appletree). Organized in 2001, Appletree purchased or otherwise acquired apples from Michigan apple orchards. It then marketed, sold, and distributed the apples. Kropf knew that, pursuant to the ACMA, Apple-tree was obligated to remit assessments to the Michigan Apple Committee.
Pursuant to the ACMA, Appletree deducted the assessments from the gross amounts it owed the apple orchards from which it purchased or otherwise acquired apples in 2004 and 2005. However, it failed to remit to the Michigan Apple Committee any of the deducted assessments for the 2004 and 2005 crops. Appletree failed to remit the assessments because it used the assessments to pay other expenses.
In April 2005, the Michigan Apple Committee filed a complaint with the director of the Department of Agriculture asserting that Appletree failed to remit the entire amount of the assessments due for the 2004 apple crop. An investigation confirmed the assertion, and by letter sent by certified mail, the director demanded that Appletree remit the $26,305.98 in assessments owed for the 2004 crop.
In February 2006, the Michigan Apple Committee filed another complaint with the director of the Department of Agriculture, this time asserting that Appletree failed to remit the assessments due for the 2005 apple crop. Again, an investigation confirmed the assertion, and the director, by letter sent by certified mail, demanded that Appletree remit the $28,878.66 owed in assessments.
After Appletree failed to remit the assessments, plaintiffs sued Appletree and Kropf. Plaintiffs asserted a breach of the ACMA against Appletree and set forth claims of common-law conversion and statutory conversion, MCL 600.2919a, against Appletree and Kropf.
Plaintiffs thereafter moved for summary disposition under MCR 2.119(C)(9) and (10) on all three claims. Plaintiffs asserted that summary disposition was proper on the ACMA claim because Appletree conceded that it had violated the ACMA and did not contest the amount owed. Plaintiffs argued that summary disposition was proper on the common-law and statutory conversion claims because Appletree used the assessments, which, pursuant to the ACMA, were funds it held in trust for the Michigan Apple Committee, for its own purposes. According to plaintiffs, Kropf could be held personally liable for the converted funds because, as the manager of Appletree, he was responsible for authorizing the financial disbursements of the company. Plaintiffs pointed out that it was well established that when a corporation commits a tortious act, its officers and agents are liable for their active participation in the tort.
Defendants consented to a judgment of $55,184.64 against Appletree for its failure to remit the assessments for the 2004 and 2005 apple crops. However, they contended that treble damages were not available to plaintiffs. According to defendants, because the ACMA created new rights and prescribed particular remedies, the remedies identified in the ACMA, which did not include treble damages, were the exclusive remedies available to plaintiffs. In addition, defendants argued that there was no conversion of the assessments by either Appletree or Kropf. First, because Appletree held the assessments with the consent of the Michigan Apple Committee, Appletree did not engage in any act of conversion when it failed to remit the assessments. Second, plaintiffs did not present any evidence that Kropf individually took the money that Appletree was required to remit to the Michigan Apple Committee.
The trial court granted in part and denied in part plaintiffs’ motion. Because there was no genuine issue of material fact that Appletree failed to remit the assessments and defendants failed to state a defense, the trial court granted plaintiffs’ motion with regard to Appletree’s liability under the ACMA. However, without deciding whether defendants converted the assessments, the trial court held that plaintiffs were not entitled to treble damages. According to the trial court, plaintiffs were limited to the remedies provided in the ACMA, which did not include treble damages. The trial court entered a final judgment against Appletree in the amount of $77,051.23. Plaintiffs’ claims of common-law and statutory conversion were dismissed with prejudice.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Wheeler v Shelby Charter Twp, 265 Mich App 657, 663; 697 NW2d 180 (2005). A summary disposition motion under MCR 2.116(C)(9) tests the sufficiency of a defendant’s pleadings by accepting all well-pleaded allegations as true. Id. “If the defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiffs right to recovery, then summary disposition under this rule is proper.” Village of Dimondale v Grable, 240 Mich App 553, 564; 618 NW2d 23 (2000) (quotation marks and citations omitted). Summary disposition is proper under MCR 2.116(0(10) if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tyson Foods, Inc v Dep’t of Treasury, 276 Mich App 678, 683; 741 NW2d 579 (2007). A genuine issue of material facts exists when, after the documentary evidence is viewed in the light most favorable to the nonmoving party, there remains an issue upon which reasonable minds could differ. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
We also review questions of statutory interpretation de novo. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). Our primary task in construing a statute is to ascertain and give effect to the intent of the Legislature. Id. at 665.
III. ANALYSIS
On appeal, plaintiffs claim the trial court erred in determining that the remedies provided in the ACMA were the exclusive remedies for a violation of the act. Plaintiffs contend that because there existed at common law a remedy for the conversion of another’s property, the ACMA does not create new rights and remedies. Therefore, the remedies provided in the ACMA are cumulative, rather than exclusive, remedies.
A
The Legislature enacted the ACMA, which became effective in 1966, for “the purpose of providing a procedure whereby marketing programs could be established for a wide variety of Michigan’s agricultural products.” Dukesherer Farms, Inc v Director of Dep’t of Agriculture (After Remand), 405 Mich 1, 9; 273 NW2d 877 (1979). The programs for each commodity are funded by an assessment collected from each producer of the commodity, MCL 290.655(a); League Gen Ins Co v Michigan Catastrophic Claims Ass’n, 435 Mich 338, 348; 458 NW2d 632 (1990), and are administered by a commodity committee, see MCL 290.657.
It is the duty of those dealing with the commodity producer to collect and remit the assessments to the commodity committee.
In the case of a marketing program that provides for the imposition of an assessment, the processors, distributors, or handlers dealing with the producer shall collect the assessment from the producer by deducting the assessment from the gross amount owing to the producer and shall remit the assessment... to the committee .... A processor, distributor, or handler who fails to deduct or remit the assessment is liable to the committee for any assessments not deducted or remitted. [MCL 290.655(c).]
“All assessments collected or deducted shall be considered trust funds and be remitted quarterly or more frequently if required ... to the appropriate committee.” MCL 290.655(e).
The ACMA established the following procedure for the commodity committee and the director of the Department of Agriculture to collect an assessment that a processor, distributor, or handler has failed to remit:
A committee may file a written complaint with the director documenting that a processor, distributor, handler, or producer has failed to deduct or remit any assessment due to the committee pursuant to a marketing program. Upon receipt of such a complaint, the director shall conduct an investigation of the allegations. If, after investigation, the director finds that the processor, distributor, handler, or producer has failed to deduct or remit an assessment to the committee, the director shall request by certified mail the processor, distributor, handler, or producer to remit the assessment within 10 days after the director determines that a deduction or remittance was not made. In the case of the failure to deduct an assessment, the director shall compute the amount that reasonably should have been deducted and impose an assessment in that amount. If the assessment is not remitted within 30 days after the request or is not in compliance with a written agreement for full payment, the director may file an action in a court of competent jurisdiction to collect the assessment.... In any action to recover an assessment under this subsection, if the director prevails, the court shall award to the director all costs and expenses in bringing the action, including, but not limited to, reasonable and actual attorney fees, court costs, and audit expenses. [MCL 290.655(f).][ ]
The ACMA also contains civil and criminal enforcement provisions. MCL 290.669 provides:
The director may institute an action necessary to enforce compliance with this act, a rule promulgated under this act, or a marketing agreement or program adopted under this act and committed to his or her administration. In addition to any other remedy provided by law, the director may apply for relief by injunction to protect the public interest without being compelled to allege or prove that an adequate remedy at law does not exist.
MCL 290.673 provides:
(1) Except as provided in subsections (2) and (3), a person who violates this act is guilty of a misdemeanor punishable by a fíne of up to $1,000.00 a day.
(2) A member of the board who intentionally violates section 7(8) shall be subject to the penalties prescribed in the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.
(3) If the board arbitrarily and capriciously violates section 7(9), the board shall he subject to the penalties prescribed in the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
B
If “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.” Monroe Beverage Co, Inc v Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997) (quotation marks and citation omitted). However, “[w]hen a statute provides a remedy for enforcement of a common-law right, the statutory scheme is merely cumulative and not exclusive.” Morris Pumps v Centerline Piping, Inc, 273 Mich App 187, 201; 729 NW2d 898 (2006) (holding that the plaintiffs’ claims for unjust enrichment were not barred by the availability of relief under the public works bonding act, MCL 129.201 et seq., because “[a] plaintiff enjoyed the right at common law to recover in quantum meruit from a defendant who had been unjustly enriched”).
At common law there has always been a remedy for those whose property was converted. See, e.g., Moore v Andrews, 203 Mich 219, 232; 168 NW1037 (1918) (“If it shall, however, turn out that the money taken by the defendant was the money of the corporation at all times, as claimed by the plaintiff, the same having been demanded, we are of the opinion that trover would lie for its conversion.”). However, before the ACMA took effect in 1966, processors, distributors, or handlers of apples and other commodities grown in Michigan had no duty to deduct an assessment from the gross amount owed to a commodity producer and remit the assess ment to the commodity committee. Absent its obligations under the ACMA, Appletree was under no duty to remit the assessments to the Michigan Apple Committee. Thus, the ACMA sets forth new rights and responsibilities not found in the common law. In addition, the ACMA sets forth mechanisms by which the director of the Department of Agriculture may sue for an unpaid assessment or to ensure compliance with the ACMA. MCL 290.655(f); MCL 290.669. Accordingly, because the ACMA sets forth new rights and responsibilities not found in the common law and prescribes new remedies for those rights, the remedies conferred by the ACMA are the exclusive remedies for a violation of the act. Monroe Beverage Co, supra.
c
Nonetheless, plaintiffs argue that even if the remedies contained in the ACMA are the exclusive remedies for a violation of the act, their claim for common-law conversion is not barred because the claim provides a complementary, rather than a conflicting, remedy to those in the ACMA. Similarly, plaintiffs argue that their statutory conversion claim is not barred because the Legislature, through the Revised Judicature Act, MCL 600.101 et seq., and specifically MCL 600.2919a(2), which states that “the remedy provided by this section is in addition to any other right or remedy the person may have at law or otherwise,” provided a separate statutory means for redress. See, e.g., Faulkner v Flowers, 206 Mich App 562; 522 NW2d 700 (1994) (a plaintiff may simultaneously pursue claims under the Whistleblowers’ Protection Act, MCL 15.361 et seq., and the wage and fringe benefits act, MCL 408.471 et seq.).
We reject both of plaintiffs’ arguments for the same reason. Conversion is “any distinct act of domain wrongfully exerted over another’s personal property in denial of or inconsistent with the rights therein.” Foremost Ins Co v Allstate Ins Co, 439 Mich 378, 391; 486 NW2d 600 (1992). Plaintiffs’ claim that Appletree wrongfully exerted domain over the assessments is based entirely on Appletree’s duty, imposed by the ACMA, to remit the deducted assessments to the Michigan Apple Committee. In other words, plaintiffs’ common-law and statutory conversion claims do not exist without the ACMA. Because the remedies conferred by the ACMA are the exclusive remedies for a violation of the ACMA, plaintiffs are barred from seeking damages for Appletree’s violation under claims of common-law and statutory conversion. Monroe Beverage Co, supra. We affirm the trial court’s order granting in part and denying in part plaintiffs’ motion for summary disposition.
Affirmed.
This amount included the unpaid assessments, statutory interest, attorney fees, audit expenses, and other costs.
In addition, an unpaid assessment is subject to an interest charge of one percent a month. MCL 290.672.
In Pompey v Gen Motors Corp, 385 Mich 537, 552 n 14; 189 NW2d 243 (1971), our Supreme Court stated that this rule of exclusivity was subject to two qualifications: if the statutory remedy is plainly inadequate or if a contrary intent clearly appears, the statutory remedy will not be deemed exclusive. Recently, however, the Supreme Court noted that the principle —“that some quantum of additional remedy is permitted where a statutory remedy is ‘plainly inadequate’ ” — was announced in dicta in Pompey, has never appeared in a majority opinion of the Court, and is inconsistent with subsequent caselaw. Lash v Traverse City, 479 Mich 180, 192 n 19; 735 NW2d 628 (2007). Plaintiffs do not allege that the remedies provided in the ACMA were plainly inadequate or that the language of the ACMA expresses a clear intent that the Legislature did not intend the remedies contained in the ACMA to be the exclusive remedies for a violation of the act.
To support their argument, plaintiffs rely on the following sentence from Kraft v Detroit Entertainment, LLC, 261 Mich App 534, 544 n 5; 683 NW2d 200 (2004): “In other words, if a statute provides for an exclusive remedy or otherwise limits or bars application of other laws, including the common law, any conflicting common law simply cannot apply.” Plaintiffs’ reliance on this sentence is misplaced. The Court was stating “[i]n other words” the “well-established legal principle that the Legislature may abrogate the common law.” Id. At issue in Kraft was whether the Michigan Gaming Control and Revenue Act (MGCRA), MCL 432.201 et seq., “preempted” the plaintiffs common-law claims of fraud and unjust enrichment. The Court concluded that because the common-law claims would prohibit that which was permitted by the MGCRA, the common-law claims were inconsistent with the MGCRA and were, therefore, preempted. Kraft, supra at 551. In this case, there is no issue whether the ACMA “preempted” plaintiffs’ common-law claim for con version. If the Legislature had not enacted the ACMA, plaintiffs would have no basis for a claim of conversion against defendants.
Consequently, we need not address plaintiffs’ claim that the undisputed facts establish that defendants converted the assessments.
We reject plaintiffs’ contention that the trial court, upon finding that “the [ACMA] applies to defendants as distributors of apples,” erred by not holding Kropf personally liable under the ACMA. In their complaint, plaintiffs did not assert a violation of the ACMA by Kropf. The only claims asserted against Kropf were for common-law and statutory conversion. | [
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CAVANAGH, J.
The prosecution appeals by delayed leave granted an order dismissing its complaint charging defendant with violating MCL 333.21771(2), which requires a nursing-home administrator to report certain incidents to state authorities. We affirm.
On December 18, 2004, William Devine, an oxygen-dependent resident of Rivergate Health Care Center, suffered burns while attempting to smoke a cigarette. Devine was in a designated smoking area of the nursing home and was wearing a device called a “nasal cannula,” which delivered oxygen to his nose through tubing that was connected to an oxygen tank. The certified nursing assistant who was helping him turned off the oxygen supply and proceeded to light Devine’s cigarette. Residual oxygen in the tubing ignited, causing Devine to suffer burns on his hands and face, as well as smoke inhalation. The nursing assistant later indicated that she did not know that nasal cannula tubing could contain oxygen after the oxygen tank was turned off.
Pursuant to MCL 333.21771, a nursing-home administrator is required to report to state authorities any physical, mental, or emotional abuse, mistreatment, or harmful neglect of a patient. Here, Rivergate’s administrator — defendant—conducted an investigation into the incident and concluded that the incident was an “accident” and, thus, reporting was not required under the statute. A member of Devine’s family, however, reported the incident to state authorities and an investigation followed.
Defendant was subsequently charged with the misdemeanor offense of failing to report the incident to state authorities as required by MCL 333.21771(2). Defendant moved to dismiss the charge, arguing that (1) this “accident” was not within the contemplation of the statute’s reporting requirements, and (2) the statute does not impose a criminal penalty. The prosecution countered that (1) the circumstances showed, at least, recklessness that warranted reporting, and (2) the statutory “catch-all” provision provided that violations of the Public Health Code for which a penalty is not otherwise provided are punishable as misdemeanors. The district court agreed with the prosecution and denied defendant’s motion to dismiss.
Defendant appealed to the circuit court. The same arguments were presented. The court agreed with defendant, holding:
This Court has reviewed the issues presented de novo. And section 21771(1) states that, “A licensee, nursing home administrator or employee of a nursing home shall not physically, mentally or emotionally abuse, mistreat or harmfully neglect a patient.”
This Court is adopting appellant’s argument. This Court believes that the reporting statute applies only to one’s awareness of willful abuse, mistreatment or neglect, not to accidents.
This Court cannot expand the definition of the conduct, which constitutes a crime, because criminal statutes must be strictly construed under Michigan laws.
Since this Court believes that the accident that occurred here was not meant to be considered harmful neglect or abuse and neglect [sic] reporting purposes, this Court feels that reporting was not required under the circumstances. Therefore, this Court is reversing the order entered by the Twenty-seventh District Court denying [defendant’s] motion to dismiss the complaint. This Court rules in favor of the appellant.
A delayed application for leave to appeal followed, and was granted. See People v Edenstrom, unpublished order of the Court of Appeals, entered August 16, 2007 (Docket No. 277291).
The prosecution argues on appeal that the circuit court misconstrued MCL 333.21771, reading into it a “willful” element that is not required by the statute. We review de novo this issue of statutory interpretation. Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 9; 654 NW2d 610 (2002).
MCL 333.21771 provides:
(1) A licensee, nursing home administrator, or employee of a nursing home shall not physically, mentally, or emotionally abuse, mistreat, or harmfully neglect a patient.
(2) A nursing home employee who becomes aware of an act prohibited by this section immediately shall report the matter to the nursing home administrator or nursing director. A nursing home administrator or nursing director who becomes aware of an act prohibited by this section immediately shall report the matter by telephone to the department of public health, which in turn shall notify the department of social services.
The issue here is whether defendant, as a nursing-home administrator, was required to report the incident involving Devine. MCL 333.21771(2) requires the nursing-home administrator to report “an act prohibited by this section immediately . . . .” The acts prohibited by the section are physical, mental, or emotional abuse, mistreatment, and harmful neglect of a nursing home patient. MCL 333.21771(1). The prosecution contends that the nursing assistant’s conduct with regard to Devine constituted harmful neglect within the contemplation of the statute; thus, the nursing-home administrator — defendant—was required to immediately report the matter.
Whether a defendant’s alleged conduct falls within the scope of a statute presents a question of law that is reviewed de novo. See People v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991); People v Rutledge, 250 Mich App 1, 4; 645 NW2d 333 (2002). In reviewing questions of statutory construction, our purpose is to discern and give effect to the Legislature’s intent. Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005). We first turn to the plain language of the statute; if the language is unambiguous, no judicial construction is required or permitted and the statute must be enforced as written. Id., quoting People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). And, pursuant to MCL 8.3a,
[a] 11 words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
The phrase “harmfully neglect” is not defined by MCL 333.21771. The prosecution urges us to adopt dictionary definitions of the words. If the legislative intent cannot be determined from the statute itself, a court may consult dictionary definitions for guidance in determining the plain and ordinary meaning of words, i.e., “the common and approved usage of the language.” MCL 8.3a; see, also, Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Were we to agree with the prosecution, we would turn to the dictionary definition of “neglect” and find that its definitions include: “1. to pay no attention or too little attention to; disregard or slight. 2. to be remiss in the care of.... 3. to omit, as through indifference or carelessness .... 4. to fail to carry out or perform . . . .” Random House Webster’s College Dictionary (2000).
But our inclination is to agree with defendant that the phrase “harmfully neglect,” as it is used in MCL 333.21771(1), has acquired a peculiar and appropriate meaning in the law. That meaning has been prescribed primarily by the Department of Community Health, the entity generally responsible for the administration of nursing homes. MCL 333.21741(1) provides: “The department of public health, after seeking advice and consultation from the department of social services, appropriate consumer and professional organizations, and concerned agencies, shall promulgate rules to implement and administer this part.”
The “part” referred to in MCL 333.21741(1) is part 217, which pertains to nursing homes. MCL 333.21771 is obviously a section within part 217. In an apparent effort to accomplish the delegated task, the Bureau of Health Systems (bureau) compiled a complaint investigation manual for long-term-care complaints and facility-reported incidents called the “Complaint and Facility Reported Incident Manual.” Recognizing that pertinent terms — like abuse, mistreat, and neglect — are used but not defined by the applicable statutes, § 3300 of the manual “sets forth definitions that meet the intent of these multiple legal bases.”
Section 3320 of the manual states as follows:
Neglect means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. The source of this definition is 42 CFR 488.301. The Public Health Code does not define the term harmfully neglect used in 21771(1). By definition, neglect is harmful, so the federal definition is adopted for both state and federal purposes.
Please note that by definition a particular event is either abuse or neglect, not both.
Basically, neglect involves the failure of a staff person to carry out his/her duties in regard to a resident. In theory, any failure to provide required services of any kind for any reason could be considered neglect. However, citations for neglect are normally issued only in cases where there is significant actual harm resulting from a failure to act in the presence of the knowledge of what should be done and the capability to provide the required services. Such cases may include a failure to follow a standard of practice. Even if neglect is not cited, citations are issued against the facility for the specific care issues involved.
It is well settled that agencies are allowed “to interpret the statutes they are bound to administer and enforce.” Clonlara, Inc v State Bd of Ed, 442 Mich 230, 240; 501 NW2d 88 (1993). And this proffered definition and explanation is not only consistent with the dictionary definition; it is also consistent with the definition of “neglect” under the Social Welfare Act, MCL 400.11 et seq., which states, in part, that “[njeglect includes the failure to provide adequate food, clothing, shelter, or medical care.” MCL 400.11(d).
Defendant, as the nursing home’s administrator, was required to follow the rules promulgated by the bureau as set forth in its manual. Thus, she was to immediately report any instance of harmful neglect. Defendant’s investigation into the Devine incident revealed that the nursing assistant lit Devine’s cigarette not knowing that oxygen could remain in the nasal cannula tubing after the oxygen tank had been turned off. Defendant concluded that the incident was an accident. According to defendant’s interpretation of the reporting provision of the manual, this incident was not reportable because it was not the result of a willful failure to provide treatment. Defendant understood that “harmful neglect” meant knowing or intentional neglect as it relates to medical treatment, not accidents. Thus, defendant did not report this incident under MCL 333.21771(2).
First, we consider defendant’s conclusion that the nursing assistant’s conduct did not constitute harmful neglect. All the record evidence indicates that the nursing assistant turned off the oxygen tank and then lit Devine’s cigarette. She did not remove Devine’s nasal cannula before doing so because she did not know that oxygen could remain in the nasal cannula tubing after the oxygen tank had been turned off. The evidence also reveals that the nursing assistant followed the smoking policy that was in place at the time, which did not include the removal of nasal cannula before lighting a resident’s cigarette. And there is no evidence that the facility instructed the nursing assistant regarding patients who wished to smoke while receiving oxygen therapy or wearing a nasal cannula. In other words, the nursing assistant did not fail to carry out her duties in regard to Devine; she did what she knew to do. She did not fail “to act in the presence of the knowledge of what should be done and the capability to provide the required service.” The evidence clearly showed that the nursing assistant did not harmfully neglect Devine as that phrase is used in the statutory provision.
This conclusion is buttressed by the provisions in the manual that explain what is meant by “neglect.” Section 3320 of the manual states:
• A resident has been neglected whenever all of the following conditions are satisfied:
► The facility fails to provide or arrange for medical, dental, nursing, dietary, physical therapy, pharmacy, habilitation, psychological, speech, audiological or other treatments or services to the resident in question; and
► The facility’s failure to provide these treatments or services is either intentional or the result of carelessness; and
► The failure to provide these treatments or services, results in a deterioration of the resident’s physical, mental or emotional condition.
• Examples of Neglect:
The following actions or omissions constitute neglect whenever they result in a noticeable deterioration of the resident’s physical, mental or emotional condition:
► Failure to carry out a physician’s order ....
► Failure to carry out nursing, treatment or individual resident care plans.
► Failure to notify a resident’s attending physician and other responsible persons in the event of an incident involving that resident.
► Failure to notify a resident’s attending physician and other responsible persons in the event of a significant change in that resident’s physical, mental or emotional condition.
► Failure to provide an adequate number of nutritionally balanced, properly prepared and medically appropriate meals.
► Failure to adequately supervise the whereabouts and/or activities of a resident.
► Failure to take precautionary measures that have been ordered....
► Refusal or failure to provide any service to the resident for the purpose of punishing, disciplining or retaliation.
► Allowing the physical environment to deteriorate ....
► Leaving a resident lying in feces or urine soaked linens for an extended period of time.
► Leaving a resident restrained in other than an immediate emergency, without a physician’s order, solely for an employee’s own convenience.
The examples of neglect cited in the manual persuade us that the neglect need not be willful, as defendant argues and the circuit court appeared to conclude. To the contrary, the neglect can be unintentional. The act or omission may be, for example, in disregard or in violation of specific orders or care plans, a duty, or a resident’s rights. The situations cited in the manual are not exhaustive; they are merely “examples.” The focus of the inquiry is on the act or omission, as well as the surrounding circumstances — a point made more clear with an example.
A resident lies in urine-soaked bed linens for seven hours and a severe pressure ulcer develops. The nursing assistant merely got busy and lost track of time. She knew that leaving a resident in that condition was unacceptable and she did not intend to do it. It just happened. It was an accident. The nursing assistant’s conduct constituted harmful neglect, reportable under MCL 333.21771(2). In contrast, in this case the nursing assistant’s action did not constitute harmful neglect— she performed the duties she was assigned to perform, in the manner that she was trained to perform them. Contrary to the dissenting opinion, that the nursing home had a poor or improper smoking policy in place at the time of this incident does not change our opinion with respect to the nursing assistant’s own actions. We believe that “the negligence of the Rivergate Care Center,” as it is referred to by the dissent, is a different issue than the one before us, i.e., what constitutes “harmful neglect” by a nursing-home employee. Thus, we agree with defendant’s conclusion on this issue, although we reject defendant’s reasoning.
Second, we turn to defendant’s decision not to report this incident. This action against defendant resulted from her failure to report this incident to state authorities as mandated by MCL 333.21771(2). Section 3410 of the manual sets forth the bureau’s interpretation of that statute as follows:
Section 21771 requires immediate reporting when the facility becomes aware of a prohibited act. The federal requirement requires reporting alleged violations. In both cases the facility must first screen incidents, observations, and other problematic or unusual events reported by employees to determine if they potentially involve any alleged acts, which could meet the definition of abuse if they were substantiated. The facility must investigate the alleged act or incident. The facility must make a preliminary judgment regarding the likely credibility of a reported incident, i.e., abuse, neglect, or misappropriation and immediately report abuse, neglect, or misappropriation. Only reports that meet these tests need to be reported.
Section 5241 of the manual sets forth the bureau’s rules related to the investigation of incidents as follows:
Each long term care facility must review any and all situations or incidents in which a resident may have suffered physical or other harm for reasons which are unknown, unclear or not adequately explained. If, during the course of that review, the facility finds reason to believe that abuse, neglect, or misappropriation was or is suspected to have been the cause of that harm, the incident must be reported to the Bureau.
A nursing home administrator or nursing director is . first expected to immediately conduct a thorough in-house investigation to determine what happened and do the following:
• If it is determined by a conclusive investigation that the incident did not occur or was not abuse, neglect, or misappropriation, a detailed incident report and the investigation findings must be filed in the facility. It is not necessary to notify the Bureau in those cases.
• If it is determined that the abusive practices did occur or are still suspected then the nursing home is required to notify the Bureau as described below.
Section 5243 of the manual states:
Incidents do not need to be reported to the Bureau if it is determined by a conclusive facility investigation that the incident did not occur or was not abuse, neglect, or misappropriation. A detailed incident report and the investiga tion findings must be filed in the facility for potential review by Bureau surveyors at surveys or other visits.
Again, Section 5272 of the manual provides:
The Bureau cites facilities that fail to report immediately (as defined above) even if they voluntarily report later.
EXCEPTION: As noted above, facilities which conduct a thorough in-house investigation and determine that the incident was not abuse, neglect, or misappropriation are required to maintain a detailed report or accident report on file in the facility and it is not necessary to notify the Bureau. If investigation determines that the incident was in fact abuse, neglect, or misappropriation, the facility is not cited by the Bureau for failure to report if it is determined that the facility conducted a thorough investigation and made a good faith, informed judgment that the incident was not abuse, neglect, or misappropriation.
Here, defendant contends that she did not report this incident to the bureau because her conclusive investigation resulted in a good-faith determination that the incident was not abuse, neglect, or misappropriation — it was an accident. As discussed earlier, we agree with defendant that the incident did not constitute harmful neglect for which reporting was required under MCL 333.21771(2). We also agree with defendant that the manual clearly requires that the nursing-home administrator exercise judgment in determining whether an incident must be reported — not all incidents that result in harm or injury to a resident are required to be reported immediately to the bureau. The manual repeatedly makes that clear. Thus, we disagree with our dissenting colleague’s position that the nursing-home administrator must immediately report, without the benefit of any investigation, any and all incidents that occur in a nursing home.
However, we reject defendant’s suggestion, as well as the circuit court’s apparent conclusion, that those incidents that can be characterized as “accidents” need not be reported. The term “accident” is too subjective and nebulous. So-called “accidents” that may be the result of harmful neglect as set forth in the manual are to be reported immediately. We also reject defendant’s claim that only if she “became aware of outright physical, mental or emotional abuse, mistreatment or harmful neglect is the statute’s reporting requirement triggered.” The term “outright” implies an element of absolute knowledge of prohibited behavior that is not consistent with the manual’s reporting requirement. To the contrary, § 5241 of the manual states that if there is “reason to believe that abuse, neglect, or misappropriation was or is suspected to have been the cause of that harm, the incident must be reported to the Bureau.” Accordingly, the bureau has interpreted the reporting requirement of MCL 333.21771(2) broadly, which is consistent with sound public policy — overreporting is more desirable than underreporting.
In summary, in light of the facts and circumstances, defendant’s conduct — her failure to report the incident —did not fall within the scope of MCL 333.21771(2). See Thomas, supra. It is clear that the nursing assistant’s act or omission with regard to the lighting of Devine’s cigarette did not constitute harmful neglect within the contemplation of the statute. Thus, we affirm the circuit court’s dismissal of this action. To the extent the circuit court interpreted MCL 333.21771 to contain a “willful” element, that interpretation is rejected, as is the circuit court’s holding that this reporting statute does not apply to “accidents.” In light of our resolution of this issue, we need not consider whether a violation of MCL 333.21771(2) is punishable under MCL 333.1299.
Affirmed.
Jansen, J., concurred.
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Tat,rot, J.
Trent Woodman, a minor, through his mother and next friend, Sheila Woodman, appeals the orders granting defendant’s motion for summary disposition of plaintiffs negligence claim and denying plaintiffs motion for summary disposition with regard to defendant’s affirmative defense of waiver. Defendant appeals the order denying defendant’s motion for summary disposition of plaintiffs claims of gross negligence and violation of the Michigan Consumer Protection Act. 1 would reverse and remand to the trial court.
I. FACTUAL HISTORY
Sheila Woodman rented defendant’s facility, which contains large, inflatable play equipment, for her son’s fifth birthday party. Defendant provided invitations to Sheila Woodman, which she subsequently forwarded to the party guests. The content of the invitation was as follows:
_has been invited to a_party for_.
The party will be held at Bounce Party
on_,_from_to_. Please RSVP at_before_.
We are hosting our party at Bounce Party in Kentwood. We will have chaperon[e]s present to ensure that this is a safe and enjoyable party. We need a parent/guardian to review and sign the information below and send it with your child on party day. Please have your child at Bounce Party 15 minutes before the party start time.
Thank you,_
Your Host
Bounce Party is an indoor inflatable play arena with interactive inflatables. Your child may have the opportunity to bounce, slide, maneuver mazes, run challenge courses, houncy box, bungee basketball and joust. Your hosts will have chaperon[e]s on site and we will have staff members present. To ensure a safe and enjoyable party please be sure that your child follows these few simple rules prior to attending the party.
{} Please RSVP to your host. We really hope you will be able to attend the party.
(> Wear CLEAN socks. No shoes or bare feet are allowed in the play arena.
0 Wear comfortable clothes.
0 Leave all jewelry, sharp objects, keys, hair bands, pencils, watches, etc. at home.
(> Let your child know that good manners are expected and inappropriate behavior will result in removal.
<) Be sure that the parent/guardian of the guest signs this release and the guest brings it with them to the party. Anyone without parent/guardian approval will not be able to participate in the arena games. If you have multiple guests in your family, you can list all their names on this one form.
THE UNDERSIGNED, by his/her signature herein affixed does acknowledge that any physical activities involve some element of personal risk and that, accordingly, in consideration for the undersigned waiving his/her claim against
BOUNCE PARTY, and their agents, the undersigned will be allowed to participate in any of the physical activities.
By engaging in this activity, the undersigned acknowledges that he/she assumes the element of inherent risk, in consideration for being allowed to engage in the activity, agrees to indemnify and hold BOUNCE PARTY, and their agents, harmless from any liability for personal injury, property damage or wrongful death caused by participation in this activity. Further, the undersigned agrees to indemnify and hold BOUNCE PARTY, and their agents, harmless from any and all costs incurred including, but not limited to, actual attorney’s fees that BOUNCE PARTY, and their agents, may suffer by an action or claim brought against it by anyone as a result of the undersigned’s use of such facility.
Participant:_Signature:_
printed NAME Parent or Legal
Guardian’s signature if participate [sic] is under age 18.
Date:_
BE SURE YOU COMPLETE THIS CARD AND SEND IT WITH THE PARTY GUEST!
On the day of the party, plaintiffs father, Jeffrey Woodman, signed the above document on plaintiffs behalf. An employee of defendant conducted a “safety talk” before the party started, which defendant asserted specifically included an instruction not to jump from the slide. In addition, written rules posted on the slide and the wall informed guests not to jump from the slide. However, after correctly using the slide five times, plaintiff jumped from the top of the slide, fell to the ground, and broke his leg.
II. LOWER-COURT PROCEDURAL HISTORY
Plaintiff, through his mother and next friend, filed a three-count complaint against defendant, alleging gross negligence, negligence, and violation of Michigan’s Consumer Protection Act (MCPA), MCL 445.901 et seq. Plaintiff alleged that defendant knowingly failed to provide supervision, ignored the slide’s manufacturer’s warnings and safety instructions, did not properly equip the slide with available safety devices, and failed to have an attendant to monitor the slide. Plaintiff contended that these failures and omissions were the direct and proximate causes of his injuries. With respect to the MCPA claim, plaintiff alleged that defendant falsely advertised itself as providing a safe play environment when, in fact, defendant knew it failed to install appropriate safety equipment and provide adequate supervision. Defendant filed an answer to the complaint, denying plaintiffs claims and asserting affirmative defenses, including the defense of waiver.
On July 27, 2006, pursuant to MCR 2.116(C)(7), (8), and (10), defendant moved for summary disposition of all three counts. Defendant argued that plaintiffs father signed a valid release on behalf of plaintiff and waived all of plaintiffs potential claims against defendant and that plaintiff could not prove gross negligence. Further, even if gross negligence could be demonstrated, defendant contended that liability was precluded because the danger of jumping from the slide constituted an open and obvious hazard. Defendant asserted that it had no duty to supervise plaintiff because his parents were with him at the time of the accident. Defendant urged the trial court to dismiss plaintiffs MCPA claim because defendant did not make any misrepresentations and the allegations made in the complaint do not comprise the type of case the MCPA was designed to remedy. Concurrently, plaintiff moved for summary disposition on defendant’s affirmative defense of waiver, pursuant to MCR 2.116(C)(8) and (10). Plaintiff argued that the purported waiver was invalid as a matter of law because a parent may not waive, release, or compromise claims by or against his or her child.
The trial court conducted a hearing on the summary-disposition motions on September 14, 2006. The trial court determined that the waiver, signed by plaintiffs parent, was valid and should be given effect. When granting summary disposition on the waiver issue, the trial court noted the absence of “any Michigan case which says that a parent who signs a waiver like this one prior to a child engaging in an activity is engaging in an act which is a legal nullity.” The trial court further opined that it concurred with the general proposition that a parent can validly execute a waiver approving his or her child’s participation in an activity and dismissed plaintiffs claim of ordinary negligence.
Considering plaintiffs gross-negligence claim, the trial court opined that plaintiffs counsel provided a sufficient demonstration that defendant ignored specific instructions or recommendations regarding use of and staffing for the slide. The trial court denied defendant’s motion to dismiss plaintiffs gross-negligence claim because it found that “a reasonable finder of fact could conclude from that conduct that it constitutes a substantial indifference to whether an injury results from the operation of the slide.”
Addressing defendant’s defense of open and obvious danger, the trial court questioned whether a five-year-old had the intellectual capacity to comprehend the dangers inherent in jumping off a slide. Recognizing that negligence cannot be imputed to a child under the age of seven, the trial court reasoned that “ [i]f negligence can’t be imputed to them, I’m not really sure how they can be barred from proceeding by the open and obvious doctrine.” The trial court further rejected de fendant’s assertion that it had no duty to supervise plaintiff because of the presence of his parents, ruling that “the nature of the defendant’s business is such that they have an inherent obligation in that regard.” Because the scope of defendant’s duty and whether it breached an existent duty comprised questions of fact for the jury, the trial court declined to grant defendant’s request for summary disposition on this issue. Although the trial court questioned the applicability of the MCPA to plaintiffs claim, it declined to dismiss the claim until the issue could be further developed.
On November 6, 2006, pursuant to MCR 2.116(C)(8) and (10), plaintiff again moved for summary disposition regarding defendant’s affirmative defense of waiver, asserting that the invitation language was insufficient to constitute a waiver. Plaintiff argued that the invitation did not waive or indemnify negligence claims against defendant because the document only addressed risks inherent in participating in the activities at defendant’s facility. Defendant responded that the invitation constituted a valid waiver and barred all claims by plaintiff of ordinary negligence. The trial court concluded that the language contained in the waiver sufficiently apprised the signatory of the inherent risks involved in the activities and the assumption of those risks. Finding the language of the waiver provided clear notice, the trial court declined plaintiffs request to invalidate the waiver and also rejected plaintiffs assertion that defendant violated public policy through false advertising or claims regarding the safety of the facility. The trial court’s rulings were subsequently memorialized in an order entered November 27, 2006.
Plaintiff moved for reconsideration of the trial court’s decision to uphold the validity of the invitation as a valid waiver of the negligence claim. Plaintiff argued that the trial court should reconsider its ruling because courts in other jurisdictions have invalidated similar provisions purporting to waive the negligence of for-profit businesses. However, plaintiff acknowledged that other state courts have upheld waivers to preclude negligence claims in situations involving nonprofit organizations or schools. The trial court denied plaintiffs motion for reconsideration, and this appeal ensued.
III. ISSUES ON APPEAL
In Docket No. 275079, defendant challenges the failure of the trial court to dismiss plaintiffs claims of gross negligence and violation of the MCPA. Defendant additionally asserts that the danger posed by jumping off the high point of a slide constitutes an open and obvious danger and contends that it did not have a duty to supervise plaintiff given the presence and proximity of his father to the slide when plaintiff was injured.
In Docket No. 275882, plaintiff poses the question whether the law and public policy of this state preclude effectuation of a preinjury waiver signed by a parent on behalf of his or her minor child. Plaintiff specifically queries the applicability of such a waiver to preclude liability of a for-profit business such as that engaged in by defendant.
IV STANDARD OF REVIEW
This Court reviews a trial court’s grant or denial of summary disposition de novo. Willett v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006). Issues of statutory interpretation also comprise questions of law, which we review de novo. Newton v Bank West, 262 Mich App 434, 437; 686 NW2d 491 (2004).
In accordance with MCR 2.116(C)(7), a litigant may seek dismissal of a claim on the basis that it is barred because of a release. The filing of supportive materials or documents is not required. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). However, if documentation is provided in conjunction with a motion for dismissal under this subsection of the court rule, the materials provided must constitute admissible evidence and require consideration by the court. MCR 2.116(G)(5). All the plaintiffs well-pleaded factual allegations and other admissible documentary evidence must be accepted as true and construed in favor of the plaintiff, unless contradicted by documentation filed by the movant. Maiden, supra at 119.
As discussed in Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 55-56; 744 NW2d 174 (2007):
Summary disposition under either MCR 2.116(C)(8) or (0(10) presents an issue of law for [the Court’s] determination and, thus, [the Court] review[s] a trial court’s ruling on a motion for summary disposition de novo. Where the parties rely on documentary evidence, appellate courts proceed under the standards of review applicable to a motion made under MCR 2.116(0(10).
A motion made under MCR 2.116(0(10) tests the factual support for a claim and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When the burden of proof at trial would rest on the nonmoving party, the nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. A genuine issue of material fact exists when the record, drawing all reasonable inferences in favor of the nonmoving party, leaves open an issue upon which reasonable minds could differ.
When deciding a motion for summary disposition under this rule, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence then filed in the action or submitted by the parties in the light most favorable to the nonmoving party. But such materials “shall only be considered to the extent that [they] would be admissible as evidence....” [Quotation marks and citations omitted.]
V OTHER JURISDICTIONS
A. GENERAL OVERVIEW
At its most basic level, the predominant issue presented in this case concerns the authority of a parent to bind his or her minor child to an exculpatory agreement, which functions to preclude a defendant’s liability for negligence, before an injury has even occurred. In its most general sense the issue juxtaposes the inherent rights and fundamental authority of a parent to make determinations for his or her minor child pursuant to the Fourteenth Amendment against public-policy concerns and the state’s authority in accordance with the doctrine of parens patriae.
The United States Supreme Court has recognized the fundamental right of parents to make decisions pertaining to the care, custody, and control of their minor children. See Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000). The recognition of this right is based, in part, on
[t]he law’s concept of the family [which] rests on a presumption that parents possess what a child lacks in matu rity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. [Parham v J R, 442 US 584, 602; 99 S Ct 2493; 61 L Ed 2d 101 (1979).]
In addition, a presumption exists that “fit parents act in the best interests of their children.” Troxel, supra at 68. Consequently, “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Id. at 68-69. Historically, this is consistent with rulings by the United States Supreme Court indicating that the inherent nature of parenthood is comprised of the companionship of a child and the right to make decisions pertaining to the child’s care, control, health, education, religious affiliations, and associations. See Pierce v Society of Sisters, 268 US 510, 534-535; 45 S Ct 571; 69 L Ed 1070 (1925); Meyer v Nebraska, 262 US 390, 399; 43 S Ct 625; 67 L Ed 1042 (1923).
Some jurisdictions have used these precepts regarding the dominance of parental authority to validate preinjury waivers to preclude liability. By way of example, the United States District Court for the District of Colorado has upheld the enforceability of a waiver signed by a parent on behalf of his minor child. Brooks v Timberline Tours, Inc, 941 F Supp 959 (D Colo, 1996). See, also, Lantz v Iron Horse Saloon, Inc, 717 So 2d 590 (Fla App, 1998). In Massachusetts, upholding a parental waiver permitting a minor to participate in a school cheerleading program, it was held: “In the circumstance of a voluntary, nonessential activity, we will not disturb this parental judgment. This comports with the fundamental liberty interest of parents in the rearing of their children, and is not inconsistent with the purpose behind our public policy permitting minors to void their contracts.” Sharon v City of Newton, 437 Mass 99, 109; 769 NE2d 738 (2002). Specifically, the court noted “[t]he enforcement of the release is consistent with the Commonwealth’s policy of encouraging athletic programs for youth and does not contravene the responsibility that schools have to protect their students.” Id. at 110-111. The Sharon court indicated that its decision to uphold the validity of the waiver was consistent with specific exceptions based on public policy embodied in statutory provisions exempting nonprofit and volunteer organizations from negligence liability for similar activities. Id. at 109.
Other jurisdictions, relying on public-policy concerns pertaining to the protection of the best interests of minors, have ruled preinjury exculpatory agreements invalid. Rejecting “the argument that a parental release of liability on behalf of a minor child implicates a parent’s fundamental right to direct the upbringing of his or her child,” the New Jersey Supreme Court in Hojnowski v Vans Skate Park, 187 NJ 323, 339; 901 A2d 381 (2006), instead emphasized that “the question whether a parent may release a minor’s future tort claims implicates wider public policy concerns and the parens patriae duty to protect the best interests of children.” The court opined that the need to protect children was not at odds and did not unnecessarily interfere “with the constitutionally protected right of a parent to permit or deny a child’s participation in any or all of the recreational activities that may be available.” Id. (quotation marks and citation omitted). Relying on the legislative enactments historically providing protection to children’s interests, coupled with the need to “discourage negligent activity on the part of commercial enterprises attracting children,” the court held “that a parent’s execution of a pre-injury release of a minor’s future tort claims arising out of the use of a commercial recreational facility is unenforceable.” Id. at 338.
The Utah Supreme Court, in Hawkins v Peart, 37 P3d 1062, 1066 (Utah, 2001), citing Scott v Pacific West Mountain Resort, 119 Wash 2d 484; 834 P2d 6 (1992), relied on the “premise that a parent may not unilaterally release a child’s claims after a child’s injury” to support its “conclusion that a parent does not have the authority to release a child’s claims before an injury.” (Emphasis in original.) Refusing to attribute validity to an executed release on the basis of the timing of the injury, the court explained its reasoning, stating, in relevant part:
An exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. These clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party. Compromise of an existing claim, however, relates to negligence that has already taken place and is subject to measurable damages. Such releases involve actual negotiations concerning ascertained rights and liabilities. Thus, if anything, the policies relating to restrictions on a parent’s right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario. [Hawkins, supra at 1066.]
Similarly, the Colorado Supreme Court, in Cooper v Aspen Skiing Co, 48 P3d 1229, 1232 (Colo, 2002), while recognizing the dissonance created between the “well-settled principle that ‘[a] minor during his minority, and acting timely on reaching his majority, may disaffirm any contract that he may have entered into during his minority’ ” and “ ‘our traditional regard for freedom of contract,’ ” ruled in accordance with public-policy concerns, which established “protections which preclude parents or guardians from releasing a minor’s own prospective claim for negligence.” Id. (citations omitted). The court opined that “ ‘since a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury.’ ” Id. at 1233 (citation omitted). As a result, the court ruled, in relevant part:
Colorado’s public policy disallows a parent or guardian to execute exculpatory provisions on behalf of his minor child for a prospective claim based on negligence. Specifically, we hold that a parent or guardian may not release a minor’s prospective claim for negligence and may not indemnify a tortfeasor for negligence committed against his minor child. [Id. at 1237.]
B. WAIVER EXCEPTIONS
There appear to be two types of cases that recognize exceptions to the preclusion of a parent’s unilateral authority to waive or release a child’s claims before or even after an injury. The first type of case deals with specific, statutorily created exceptions, which restrict the forum for bringing a claim rather than provide an absolute waiver of any negligence. Typically, “a waiver executed by a parent on behalf of a minor is supported by public policy when it relates to obtaining medical care, insurance, or participation in school or community sponsored activities.” Fields v Kirton, 961 So 2d 1127, 1129 (Fla App, 2007). Distinguishing between the restriction or preclusion of “parents from deciding what activities may be appropriate for their minor children’s participation” and “the effect of [a] release insulating the provider of the activity from liability for negligence inflicted upon the minor,” the court in Fields opined that “[t]he decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child.” Id. Consequently, on the basis of the potential effect resulting from a parent’s determination to execute a preinjury release of a minor child’s property rights, the Fields court determined that the child’s “rights cannot be waived by the parent absent a basis in common law or statute.” Id. at 1130. Often, these cases involve waivers regarding the right to mediate or arbitrate disputes for potential or future injuries and have identified an important distinction between “[wjhether a parent may waive his or her child’s substantive rights” and “whether a parent may agree that any dispute arising from the contract may be arbitrated rather than decided in a court of law.” Global Travel Marketing, Inc v Shea, 908 So 2d 392, 401 (Fla, 2005). In these instances, the courts distinguish arbitration clauses from releases of liability:
“[W]e note that the parent’s consent and release to arbitration only specifies the forum for resolution of the child’s claim; it does not extinguish the claim. Logically, if a parent has the authority to bring and conduct a lawsuit on behalf of the child, he or she has the same authority to choose arbitration as the litigation forum.” [Id. at 402, quoting Cross v Carnes, 132 Ohio App 3d 157, 169; 724 NE2d 828 (1998).]
The second type of exception used to uphold the validity of a preinjury waiver is reliant on public-policy arguments. Our research indicates that many jurisdictions engage in this type of compromise or hybrid, upholding the validity of certain releases or exculpatory agreements in limited or defined circumstances involving schools, religious organizations, and other public, nonprofit, or voluntary functions provided to children within communities. Courts have attempted to define the standards or elements to be used in making these determinations. By way of example, in Tunkl v Univ of California Regents, 60 Cal 2d 92, 99-101; 32 Cal Rptr 33; 383 P2d 441 (1963) (footnotes omitted), the court listed the criteria to be used for determining public-policy limitations on releases as follows:
[T]he attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
A more abbreviated version of the elements to be considered in these circumstances is provided in Jones v Dressel, 623 P2d 370, 376 (Colo, 1981), which states, in relevant part:
In determining whether an exculpatory agreement is valid, there are four factors which a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.
Notably, Jones cited the standard elucidated in Tunkl for determining “the existence of a duty to the public.” Id.
In this line of cases, the focus of the courts is directed “not [on] whether the release violates public policy; but rather that public policy itself justifies the enforcement of [the] agreement.” Zivich v Mentor Soccer Club, Inc, 82 Ohio St 3d 367, 370; 696 NE2d 201 (1998). Specifically, in Zivich the court summarized its concerns as follows:
It cannot be disputed that volunteers in community recreational activities serve an important function. Organized recreational activities offer children the opportunity to learn valuable life skills. It is here that many children learn how to work as a team and how to operate within an organizational structure. Children also are given the chance to exercise and develop coordination skills. Due in great part to the assistance of volunteers, nonprofit organizations are able to offer these activities at minimal cost. ... Clearly, without the work of its volunteers, these nonprofit organizations could not exist, and scores of children would be without the benefit and enjoyment of organized sports. Yet, the threat of liahility strongly deters many individuals from volunteering for nonprofit organizations. Insurance for the organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs. Thus, although volunteers offer their services without receiving any financial return, they place their personal assets at risk.
Therefore, faced with the very real threat of a lawsuit, and the potential for substantial damage awards, nonprofit organizations and their volunteers could very well decide that the risks are not worth the effort. Hence, invalidation of exculpatory agreements would reduce the number of activities made possible through the uncompensated services of volunteers and their sponsoring organizations. [Id. at 371-372 (citations omitted).]
On the basis of this reasoning, the Zivich court opined that “public policy justifies giving parents authority to enter into these types of binding agreements on behalf of their minor children” and that “enforcement of these agreements may well promote more active involvement by participants and their families, which, in turn, promotes the overall quality and safety of these activities.” Id. at 372. Consequently, the court, defining the parameters of the ruling, stated, in relevant part, that “parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activities where the cause of action sounds in negligence. These agreements may not be disaffirmed by the child on whose behalf they were executed.” Id. at 374. This same reasoning was acknowledged and adopted in In re Royal Caribbean Cruises Ltd, 459 F Supp 2d 1275, 1279-1280 (SD Fla, 2006), when the court refused to exonerate Royal Caribbean from liability on the basis of the execution of a waiver by the parent of a minor child. Citing with approval Zivich and other preinjury cases in various jurisdictions, the court distinguished their holdings from the circumstances in the present action as involving “parental pre-injury releases executed for purposes of a minor’s participation in nonprofit, community based, and/or school related activities rather than parental pre-injury releases related to private for profit activities.” Id. at 1280.
VI. MICHIGAN
A. OVERVIEW
In analyzing the current status of the law in Michigan, our starting point is the well-recognized common-law premise, cited and adopted through a prolonged history of caselaw that “in Michigan a parent has no authority merely by virtue of the parental relation to waive, release, or compromise claims of his or her child. Generally speaking, the natural guardian has no authority to do an act which is detrimental to the child.” Tuer v Niedoliwka, 92 Mich App 694, 698-699; 285 NW2d 424 (1979). Caselaw in Michigan demonstrates adherence to this common-law precept, which places strict limitations on a parent’s authority to compromise claims on behalf of the parent’s minor child. By way of example, we note our Supreme Court’s ruling in O’Brien v Loeb, 229 Mich 405, 408; 201 NW 488 (1924), involving injuries sustained by a 10-year-old child in a collision between an automobile and a horse-drawn wagon. Before initiation of trial, the child’s mother purportedly accepted a sum in full settlement of her child’s claims arising from the accident. Noting the absence of a “contract by the infant,” the Court stated, in relevant part:
The transaction was carried on entirely with the mother, who was without authority to bind him in the release of his cause of action against the defendants. An infant is not bound by a contract made for him or in his name by another person purporting to act for him, unless such person has been duly appointed his guardian or next friend and authorized by the court to act and bind him. [Id. (quotation marks and citation omitted).]
Despite recognition by our Court that “[t]he status of a parent is one of guardian by nature,” courts in this state have consistently ruled that “[u]nless authorized by statute, a guardian is without power to bind the infant or his estate.” Reliance Ins Co v Haney, 54 Mich App 237, 242; 220 NW2d 728 (1974). In Reliance Ins Co, this Court specifically determined that even the “natural guardian,” or parent of the minor child, “may not consent to the surrender of life insurance which has been taken out for the benefit of the child.” Id. This Court’s ruling reflects public-policy concerns regarding the need to protect the rights of minor children as predominant to the inherent rights of their parents at least to the extent that a “guardian has no authority to do any act which is detrimental to his ward.” Id. A detrimental act is construed as one that effectively abandons or compromises any right or interest belonging exclusively to the minor child. Id. at 243 (finding “[t]he very fact that [the child] was injured by an uninsured motorist and the insurer denies coverage on the basis of the father’s waiver for the son indicates a detrimental act”).
Limitations on parental authority, consistent with this common-law rule, have also been imposed in cases involving support of a minor child. For instance, “an illegitimate child’s right to support from a putative father cannot be contracted away by its mother, and that any release or compromise executed by the mother is invalid to the extent that it purports to affect the rights of the child.” Tuer, supra at 699. Caselaw has further emphasized restrictions on parental authority by recognizing a parent’s right to stipulate or approve an “annulment judgment” but precluding that agreement from affecting the rights of the minor children involved to a full hearing on the issue of paternity. In re Kinsella Estate, 120 Mich App 199, 203; 327 NW2d 437 (1982). Referencing public policy, this Court “has taken a dim view of agreements purporting to sign away the rights of a child, particularly when the result of such an agreement may be that the child becomes a public charge .. ..” Van Laar v Rozema, 94 Mich App 619, 624; 288 NW2d 667 (1980).
This overriding public-policy concern is demonstrated in procedures and rules mandating court oversight, which have been implemented to assure the protection of minors and their rights in postinjury cases. For example, MCR 2.420(A), consistently with the doctrine of parens patriae, delineates strict limitations on parental authority regarding settlements and judgments for minors. Specifically,
MCR 2.420(A) provides that the rule applies only to settlements in cases “brought for a minor by a next friend, guardian, or conservator,” which we read as further support for our holding that a parent has no authority to compromise an unliquidated claim or to liquidate a claim on behalf of a child absent the formal procedures and proper supervision suggested by the court rule. The obvious basis for such a rule is to ensure that the best interests of the minor child are protected by (1) the appointment of a next friend, guardian, or conservator to represent the minor and (2) the oversight of the trial court, or probate court, before an action is commenced, to scrutinize any proposal that compromises the minor’s rights. [Smith v YMCA of Benton Harbor/St Joseph, 216 Mich App 552, 556; 550 NW2d 262 (1996) (emphasis in original).]
We note that even when court-imposed protections, such as the appointment of a guardian or next friend are in place, “ [i]f the next friend ... is a person who has made a claim in the same action and will share in the settlement or judgment of the minor . .. then a guardian ad litem for the minor . . . must be appointed ... to approve the settlement or judgment.” MCR 2.420(B)(2). The implementation of such safeguards further demonstrates the overriding importance attributed to assuring the best interest of the child is maintained and is not compromised by any potential conflict of interest. See Bowden v Hutzel Hosp, 252 Mich App 566, 572-573; 652 NW2d 529 (2002), mod 468 Mich 851 (2003).
Various statutory provisions afford similar protections to minors, including but not limited to: (a) MCL 700.5102, which restricts the payment or delivery of property to minors not in excess of $5,000 in value unless certain safeguards are present; (b) MCL 700.5401, involving court appointment of a conservator or issuance of a protective order to ensure oversight in the management of a minor’s estate; and (c) MCL 600.5851, tolling accrual of actions in order to preserve a child’s rights to initiate certain causes of action, following removal of the disability of an individual’s status as a minor.
These provisions function as checks on parental authority in an effort to ensure the protection of a minor child’s interest by requiring the appointment of a conservator or guardian approved by the court to handle the minor’s affairs, or by provision of additional time following attainment of the age of majority by a minor to exercise certain rights, rather than the automatic assumption of this role by a parent. The implementation of these provisions is indicative of an adherence to public policy, which favors the protection of the contractual rights of minors consistent with the common-law limitations placed on parental authority to compromise claims belonging to their children.
B. WAIVER EXCEPTIONS
Michigan, consistently with other jurisdictions, does permit specific statutory exceptions to the common-law rule of preclusion of parental authority regarding the release or waiver of children’s rights. We note that such legislatively created exceptions Eire limited and strictly construed. “Because the common law may be abrogated by statute, a child can be bound by a parent’s act when a statute grants that authority to a parent.” Benson v Granowicz, 140 Mich App 167, 169; 363 NW2d 283 (1984). See, also, Osborne v Arrington, 152 Mich App 676, 679-680; 394 NW2d 67 (1986); McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 192-193; 405 NW2d 88 (1987) (recognizing the enactment of former MCL 600.5046[2] “changes the common law to permit a parent to bind a child to an arbitration agreement”).
Currently, our Legislature has cleEirly identified certain, very specific situations in which parents are allowed to compromise the rights of their minor child. However, nothing has been discovered in the current statutory scheme that would permit a parent to release the property rights of his or her child in circumstances similar to those in this litigation. Specifically, this Court is aware of no legislative enactments upholding exculpatory agreements, executed by pEirents on behalf of their minor children before injury, that waive liability for injuries incurred in either commercial or nonprofit settings. Rather, given the preclusion of parental authority to compromise postinjury claims initiated on behalf of children without significant court oversight or the institution of legislatively created safeguards, it is counterintuitive to believe it acceptable or justifiable that inchoate rights or preinjury claims could be waived by parents, particularly given the absence of sufficient factual information or informed negotiation in such preinjury circumstances. Given the caselaw and the context of legislative enactments and safeguards, it is apparent that Michigan is particularly cautious when it comes to permitting the compromise of any child’s rights and strictly adheres to the common-law preclusion of parental authority in these situations, recognizing only very limited and specific statutory exceptions to this general rule. Hence, in the absence of a clear or specific legislative directive, we can neither judicially assume nor construct exceptions to the common law extending or granting the authority to parents to bind their children to exculpatory agreements. Thus, the designation or imposition of any waiver exceptions is solely within the purview of the Legislature.
I am particularly cognizant of the fact that to uphold the validity of preinjury waivers would afford minor children fewer protections than provided for postinjury claims, which statutorily require court oversight or approval for settlement. Concurrently, I acknowledge the public-policy concerns and reasoning underlying distinctions developed in other jurisdictions pertaining to the validity of such waivers dependent on the nature of the activity engaged in regarding for-profit and nonprofit activities or services. However, even following the reasoning of other jurisdictions, the exceptions recognized in those cases are not applicable given the for-profit nature of defendant’s business. Without specific legislative direction this Court is precluded from defining or implementing any such divergence from the common-law preclusion regarding the validity of any form of waiver by a parent on behalf of his or her minor child. Although there exists in this state a clear intention to give predominance to protecting the rights of minor children, “[t]he Michigan Legislature is the proper institution in which to make such public policy determinations, not the courts.” Huron Ridge LP v Ypsilanti Twp, 275 Mich App 23, 45; 737 NW2d 187 (2007).
While this ruling has significant and far-reaching implications regarding practices routinely engaged in by organizations and businesses providing valuable services and activities for minor children and has the potential to increase litigation and affect the availability of programs to younger members of the community, I have no alternative but to recognize the current status of our law and follow its precepts. “It is not the function of the courts to usurp the constitutional role of the legislature and judicially legislate that which necessarily must originate, if it is to be law, with the legislature.” Fields, supra at 1130.
C. CONCURRENCES
Contrary to the concerns expressed in my colleagues’ respective concurrences, I welcome the potential for discourse and examination that may be occasioned by our ruling in this case. While certain organizations may be required to reevaluate their services and delivery of activities as a result of our determination, I believe this is a small price to pay to protect the interests of the most vulnerable members of our society. Hopefully, our ruling will serve to disrupt the complacency, which has developed over the years, from the proliferation and pro forma acceptance of preinjury waivers and will serve to refocus and place liability where it belongs by removing the artificial protections afforded to organizations or businesses that are negligent in the provision of services to children. Further, while it may, from a social-policy perspective, be beneficial to exempt nonprofit and other specified organizations from preinjury liability, the establishment of protections for such groups is easily provided if our Legislature chooses to act. Our ruling is not significant because it may result in a disruption of the status quo regarding the complacent acceptance of the use of preinjury waivers for minors. Rather, the decision in this case is important because it serves as an affirmation of the priority we place on the protection of the health and well-being of our children.
D. CONCLUSION
Therefore, I would determine that preinjury waivers effectuated by parents on behalf of their minor children are not presumptively enforceable. Specifically, within the context of our state’s overriding policy, and in the absence of any specific legislative exceptions permitting the waiver of liability by parents in these situations, the release signed on behalf of plaintiffs son cannot be construed as valid. Consequently, I would reverse the trial court’s determination regarding the validity of the challenged waiver and remand the case for reinstatement of plaintiffs negligence claim. Because our ruling determines that the waiver is invalid, I need not address the parties’ contentions pertaining to the scope or parameters of the waiver’s language and content.
VII. GROSS NEGLIGENCE
Defendant contends that the trial court erred in refusing to dismiss plaintiffs claim of gross negligence. “Gross negligence” is conduct that is so reckless that it demonstrates a substantial lack of concern for whether an injury results. Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence. Maiden, supra at 122-123. The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ. Jackson v Saginaw Co, 458 Mich 141, 146; 580 NW2d 870 (1998).
Plaintiff contends that the failure of defendant to follow or implement the manufacturer’s instructions regarding equipment to be used in conjunction with the slide and recommendations pertaining to adult supervision of its use constituted evidence of gross negligence. However, plaintiff ignores the fact that defendant did undertake certain actions to ensure the safety of its guests. It is undisputed that defendant’s staff provided verbal instructions to the participants regarding safety and appropriate conduct or behavior before permitting use of the equipment and that certain rules regarding safe use of the equipment were posted. Further, plaintiff does not allege the minor children attending the party were completely unsupervised, only that insufficient supervision was provided. Considering the fact that defendant did undertake certain steps or precautions to prevent injury, there has been no demonstration that defendant possessed a substantial lack of concern for the minor child’s safety or well-being. Therefore, I would hold that the trial court erred by failing to grant summary disposition on plaintiffs claim of gross negligence. Id. at 151. Because I would determine that plaintiffs claim of gross negligence is not viable, I find no need to address defendant’s assertion that it is entitled to summary disposition on the basis of a lack of proximate causation.
Subsumed within this issue are defendant’s concomitant assertions that (1) the danger posed by jumping off the top of a slide is an open-and-obvious hazard, precluding the imposition of liability and (2) defendant did not have a duty to supervise the minor child given the presence of the child’s parents at the time the injury occurred. I first address the assertion regarding the applicability of the open-and-obvious-danger doctrine.
As previously discussed by this Court, the applicability of the open-and-obvious-danger doctrine is dependent on the theory of liability presented and the nature of the duty that is at issue. Hiner v Mojica, 271 Mich App 604, 615; 722 NW2d 914 (2006). We have determined that this doctrine is applicable only to premises-liability actions and certain cases involving a failure to warn in product-liability cases. We have explicitly held the doctrine not to be applicable to claims of ordinary negligence. Id. at 615-616. When an injury develops from a condition of the land, rather than emanating from an activity or conduct that created the condition on the property, the action sounds in premises liability. James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158 (2001). Because this case comprises a claim of negligence and does not meet the definitional requirements of either a premises-liability or a product-liability action, the open-and-obvious-hazard doctrine is inapplicable. Because I find the doctrine inapplicable, I need not reach a determination regarding the trial court’s ruling precluding the use of the doctrine with regard to minor children below the age of seven on the basis of the legal precept that precludes the ability to impute negligence to individuals within this young age group.
Defendant also contends that the trial court erred in finding it had a duty to protect the minor child given the presence of his parents at the site at the time of the injury. I concur with the trial court’s denial of summary disposition on this basis because the presence of the minor child’s parents did not serve to abrogate defendant of its duty as the premises owner. Generally, “ ‘a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.’ ” Bragan v Symanzik, 263 Mich App 324, 330-331; 687 NW2d 881 (2004), quoting Lugo v Ameritech Corp, 464 Mich 512, 516; 629 NW2d 384 (2001). Landowners owe minor invitees the highest duty of care. Bragan, supra at 335. Accordingly, defendant had a duty to exercise reasonable care to protect plaintiffs son and all the children attending the party from dangerous conditions, regardless of whether adults related to the children were present. However, I find that defendant’s argument is misplaced because the cause of action arises in negligence rather than premises liability.
VIII. MICHIGAN CONSUMER PROTECTION ACT
Lastly, defendant argues that the trial court improperly failed to dismiss plaintiffs claim under the MCPA. Notably, plaintiffs complaint does not identify the specific sections of the MCPA claimed to have been violated. In general, plaintiffs allegations comprise assertions of misrepresentation or “deceptive represen tations” regarding the safety of its facility or equipment and the availability of supervision. Plaintiff further implied fraud or purposeful misrepresentation by suggesting defendant’s purported waiver of liability was improperly “disguised in the form of an invitation.” While not specified by plaintiff in his complaint, these allegations were discussed in greater detail in plaintiffs appellate brief, in which she asserted that defendant’s misrepresentations pertaining to the safety of the facility, equipment, and supervision constituted violations of multiple subsections of MCL 445.903(1).
In general, the MCPA precludes the use of “[u]nfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce . .. .” MCL 445.903(1). “Trade or commerce” is defined 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.” MCL 445.902(l)(g). The intention underlying the act is “ ‘to protect consumers in their purchases of goods which are primarily used for personal, family or household purposes.’ ” Zine v Chrysler Corp, 236 Mich App 261, 271; 600 NW2d 384 (1999) (citation omitted). “The MCPA is a remedial statute designed to prohibit unfair practices in trade or commerce and must be liberally construed to achieve its intended goals.” Forton v Laszar, 239 Mich App 711, 715; 609 NW2d 850 (2000), overruled in part on other grounds Liss v Lewiston-Richards, Inc, 478 Mich 203 (2007). In order to have a valid MCPA claim presented, the “courts must examine the nature of the conduct complained of case by case and determine whether it relates to the entrepreneurial, commercial, or business” aspects of the defendant’s profession. Nelson v Ho, 222 Mich App 74, 84; 564 NW2d 482 (1997).
Plaintiff contends that defendant advertised itself as a safe and supervised facility, even though it purportedly knowingly violated safety recommendations set forth by the manufacturer of its equipment, and tried to deceptively obtain a waiver by providing free invitations that contained the waiver, in violation of the MCPA. The gravamen of plaintiffs claim is negligence because the allegations center on the way defendant operated the slide, not the manner by which it solicited or advertised its business. See Tipton v William Beaumont Hosp, 266 Mich App 27, 33; 697 NW2d 552 (2005) (the gravamen of an action is determined by reading the claim as a whole). Further, plaintiffs claim that defendant tried to deceptively obtain a waiver is without merit. Plaintiffs mother received a copy of the document containing the waiver well in advance of the party and had ample opportunity to review it. Defendant made no attempt to disguise the waiver language. The wording of the invitation was sufficiently clear that no one would be permitted to participate in the event without a signed waiver. Therefore, I find that the trial court erred as a matter of law by failing to grant defendant summary disposition on this claim because the MCPA is not an appropriate basis upon which plaintiff can recover.
I would reverse and remand to the trial court for further proceedings consistent with this opinion. I would not retain jurisdiction.
This Court granted each party’s application for leave to appeal and consolidated the two appeals. Woodman v Kera LLC, unpublished orders of the Court of Appeals, entered April 13, 2007 (Docket Nos. 275079 and 275882).
“ ‘Parens patriae,’ which is Latin for ‘parent of his or her country,’ describes ‘the state in its capacity as provider of protection to those unable to care for themselves.’ ” Global Travel Marketing, Inc v Shea, 908 So 2d 392, 399 (Fla, 2005), quoting Black’s Law Dictionary (8th ed), p 1144.
We note that the Cooper case has subsequently been superseded by statute. See Pollock v Highlands Ranch Community Ass’n, Inc, 140 P3d 351 (Colo App, 2006).
We note that the Florida Supreme Court accepted jurisdiction in this matter to address the question certified by the Florida District Court of Appeal:“Whether a parent may bind a minor’s estate by the pre-injury execution of a release.” Fields, supra at 1130; Kirton v Fields, 973 So 2d 1121 (Fla, 2007).
Contrary to the concurrences, I find the arguments validating preinjury waivers less persuasive than those regarding postinjury waivers based on (a) the absence of sufficient information to make informed decisions regarding waiver when an injury has not yet occurred, and (b) the importance of affording minors greater, or at least equivalent, protections, to those afforded in postinjury cases and to adults. In addition, I do not agree that our determination regarding the invalidation of preinjury waivers serves to undermine parental authority. Parents continue to retain decision-making authority regarding their child’s participation in select activities. Our ruling only serves to assure that such determinations are fully informed in order to effectively balance any risks and benefits inherent in the chosen activities and to afford adequate protections from negligent behavior in the conduct of those activities.
Further, I would strongly encourage the Legislature to evaluate this issue, including any distinctions to be acknowledged regarding treatment of preinjury waivers involving for-profit versus nonprofit organizations or programs. | [
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ZAHRA, EJ.
Flaintiff appeals as of right an order denying his motion to reinstate custody proceedings in Michigan. The central question presented in this case is whether the Wayne Circuit Court (the Michigan court) abused its discretion by declining jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq., to modify a foreign custody decree. Because jurisdiction under the UCCJEA at one time was vested in a Virginia court and the Virginia court expressly determined that it did not relinquish jurisdiction, we hold that the Michigan court did not abuse its discretion by declining to exercise jurisdiction to modify the foreign custody order. We affirm.
I. BASIC PACTS AND PROCEEDINGS
Plaintiff and defendant were married on August 2, 1991, and had two children. On November 6, 2003, a Mississippi court entered a final divorce decree between the parties. The decree provided that the parties would have joint physical and legal custody of the children, as follows:
a. The children will be in the custody of the wife from May 16, 2003 through May 15, 2005. They will return to the Husband on May 16, 2005, or the end of the children’s school year, whichever occurs later, and remain with the husband until May 15, 2007, or the end of the children’s school year, whichever occurs later and te [sic] cycle will then alternate.
b. The children shall spend each summer from the Saturday following the end of the school year until the Saturday before school resumes for the fall with the parent who did not have the children during the previous school year. During custody [sic] the children with one parent, generous access to the other parent will be provided without any reservation or obstacle.
Both parties subsequently moved to other states. Plaintiff ultimately settled in Michigan, and defendant moved to Virginia in December 2004. The parties adhered to the custody order, however, on May 5, 2005, defendant filed to register the custody order in Virginia and to modify the custody order. She specifically sought to modify the custody order to allow the children to spend the school year with her and summers with plaintiff.
The Virginia and Mississippi courts apparently communicated, and on June 21, 2005, the Mississippi court entered an order of dismissal, stating that the Mississippi court no longer had exclusive, continuing jurisdiction over the matter because neither the children nor either parent currently resided in Mississippi, nor did they have a substantial connection to the state. The order also indicated that the state of Virginia would be a more convenient forum for the custody determination. Accordingly, on July 18, 2005, the Virginia district court entered a custody order, which noted that the Mississippi court had declined to exercise jurisdiction. The order further stated that the Virginia district court was assuming jurisdiction, and “order[ed] to be registered the Mississippi decree determining custody and jurisdiction.”
After further proceedings on the custody issue, on April 10, 2006, the Virginia district court entered a consent order granting both parties joint legal custody of the children, but granting plaintiff primary physical custody of the children until the end of the 2006-2007 school year, while allowing defendant “liberal time with the children, including long weekends, extended holiday/break times, and the summer of 2006.” The order also provided that “[p]rior to the conclusion of the 2006/2007 school year, the parties shall attempt to relocate either to Michigan (Jahan) or Virginia (Jamil).” The order further provided that defendant would have physical custody of the children at the end of the 2006-2007 school year, and that, during the summer of 2007, the parties would attempt to “resolve the issue of with whom the children should live.” Finally, the order provided that if no agreement could be reached, the “current arrangement of two years with each parent shall continue for another two years, to be re-evaluated at the conclusion of the 2008/2009 school year upon either party’s motion.” Both parties then filed notices of appeal in the Virginia circuit court.
However, in November 2006, defendant filed a motion for voluntary nonsuit in the Virginia circuit court, requesting dismissal of her motion to amend the custody order. On April 5, 2007, the Virginia circuit court entered a final order granting defendant’s motion. In doing so, the Virginia court observed that, because plaintiff did not file a counterclaim, defendant had an absolute right to a nonsuit pursuant to Virginia statute. It thus ordered the matter removed from the Virginia court’s docket. Despite this dismissal, on April 6, 2007, defendant filed a petition to enforce the divorce decree in the Virginia district court.
On April 27, 2007, plaintiff filed an amended complaint for modification of the custody and parenting-time provisions of the foreign court order pursuant to the UCCJEA in the Michigan court. He asserted that the Michigan court had jurisdiction and should determine the modification of custody and parenting time. He further argued that the contemplated move of the children from Michigan to Virginia was a sufficient change of circumstances to warrant modification of a custody order. More specifically, plaintiff asked the Michigan court to modify the divorce decree to “continue the established custodial environment the children have had and enjoyed for the last two (2) years in Michigan.” He asked the Michigan court to accept jurisdiction, issue an order stating that it had temporary emergency jurisdiction, and communicate with the Virginia district court to determine whether Michigan was the most appropriate forum. Also, on May 15, 2007, plaintiff filed in the Virginia court a motion noting that there was a case pending in Michigan and challenging the Virginia court’s jurisdiction.
On May 31, 2007, defendant filed a motion to dismiss for lack of jurisdiction in the Michigan court. She argued that the Michigan court was not permitted to exercise jurisdiction because a child-custody proceeding had been commenced in Virginia that had not been terminated or stayed. She thus requested that the Michigan court dismiss plaintiffs complaint for modification, or, in the alternative, stay the proceedings pending a determination by the two courts regarding which court would assume jurisdiction of the matter. On June 13, 2007, the Virginia court entered an order scheduling a hearing regarding jurisdiction for August 31, 2007.
On June 25, 2007, plaintiff filed with the Michigan court a response to defendant’s motion to dismiss for lack of jurisdiction. Plaintiff essentially argued that, because of the nonsuit, the only pending action for modification was in Michigan, the state where the children had resided for the past two years. Plaintiff asked the Michigan court to “immediately communicate with [the Virginia district court] so that a determination can be made that Michigan is the most convenient forum under the UCCJEA; and that Virginia acknowledge that it has no continuing jurisdiction under the UCCJEA.”
On July 16, 2007, the Michigan court held a hearing on defendant’s motion to dismiss for lack of jurisdiction. On the record, the Michigan court stated that because there was a prior custody order in Virginia within the meaning of MCL 722.1206, Virginia had jurisdiction to amend the custody order. The Michigan court also stated that it had contacted the Virginia district judge, and the judge communicated his belief that Virginia had jurisdiction and that Virginia would likely retain jurisdiction. Thus, on July 23, 2007, the Michigan court entered an order dismissing plaintiffs complaint without prejudice and without costs. The order stated that Virginia had jurisdiction under the UCCJEA, but noted that plaintiff could bring a forum non conveniens motion before the Virginia district court arguing that Michigan was the appropriate forum.
On August 7, 2007, plaintiff filed a motion in the Michigan court for nunc pro tunc reinstatement of his complaint for modification of custody. He asserted that, after the Michigan court entered the order of dismissal, the Virginia Court of Appeals issued a published opinion holding that “a non-suit of a case in the Circuit Court which had been appealed from the Juvenile and Domestic Relations District Court has the effect to ‘nullify the entire suit as if it had never existed in either Court.’ ” He argued that, because of that decision, there was no action pending in Virginia because of defendant’s voluntary nonsuit. Noting the Michigan court’s ruling that it would reconsider reinstatement if the Virginia courts declined jurisdiction, plaintiff requested that the reinstatement “be nunc pro tunc to April and effective forthwith upon pronouncement by the Virginia Court, as being in furtherance of the best interest of the children.”
On August 31, 2007, the Virginia district court entered an order dismissing “the petitions to enforce.” It reasoned that, because the consent order was nullified by the April 5, 2007, nonsuit ordered on defendant’s motion, there was no order for defendant to petition to enforce. However, the Virginia district court also held that its July 18, 2005, order assuming jurisdiction and registering the Mississippi decree in Virginia remained in force. It reasoned, “It would be an empty academic exercise for this Court to hold that the nullification of the consent order also affects the jurisdictional orders, particularly when considering that the Mississippi Court will no longer retain jurisdiction.” The Virginia district court accordingly dismissed without prejudice defendant’s petition to enforce and granted the parties leave to pursue custody modification within 20 days. Defendant apparently filed a motion for modification of custody in Virginia after the August 31, 2007, ruling by the Virginia district court.
On September 14, 2007, the Michigan court held a hearing on plaintiffs motion for reinstatement. Defendant argued that a decision on the motion was premature because it was for the Virginia court to determine whether it retained jurisdiction and a forum non conveniens motion filed in Virginia had not yet been decided. On the basis of the language of the Virginia district court’s order of August 31, 2007, the Michigan court concluded that the Virginia district court was still asserting jurisdiction over the case. The Michigan court observed that the Virginia district court concluded that the consent order of April 10, 2007, was nullified but that the Virginia district court’s jurisdictional claim was not nullified. Accordingly, the Michigan court entered an order, dated September 14, 2007, denying plaintiffs motion to reinstate.
On October 15, 2007, plaintiff filed a claim of appeal in this Court, and on January 1, 2008, the Virginia district court entered an order denying plaintiffs plea in bar and determining the Virginia district court to be the most convenient forum.
II. JURISDICTION
A. standard of review
The question whether a court has subject-matter jurisdiction to hear a particular claim is a question of law that we review de novo. However, the determination whether to exercise jurisdiction under the UCCJEA is within the discretion of the trial court and will not be reversed absent an abuse of that discretion. Young v Punturo (On Reconsideration), 270 Mich App 553, 560; 718 NW2d 366 (2006). Generally, an appellate court should defer to the trial court’s judgment, and if the trial court’s decision results in an outcome within the range of principled outcomes, it has not abused its discretion. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). The abuse of discretion standard acknowledges that there are circumstances in which there is no one correct outcome. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
B. ANALYSIS
At the time this dispute arose, Michigan, Mississippi, and Virginia had adopted the UCCJEA. MCL 722.1101 et seq.-, Miss Code Ann 93-27-101 et seq.-, Va Code Ann 20-146.1 et seq.
It is clear that Michigan courts have jurisdiction to make an initial custody determination. Under MCL 722.1201(1), the Michigan court has jurisdiction to make an initial child-custody determination, if:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
Here, the children resided with plaintiff in Michigan for approximately two years before the commencement of this suit. Accordingly, under MCL 722.1201(l)(a) the Michigan court has jurisdiction to make an initial child-custody determination.
Less clear is whether the facts presented in this case permit a Michigan court to exercise jurisdiction to modify the custody order originally entered in Mississippi and registered in Virginia. MCL 722.1203 addresses the Michigan court’s jurisdiction to modify the custody order and provides in relevant part that
a court of this state shall not modify a child-custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial child-custody determination under section 201(l)(a) or Ob) and either of the following applies:
(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 202 or that a court of this state would be a more convenient forum under section 207.
(b) A court of this state or a court of the other state determines that neither the child, nor a parent of the child, nor a person acting as a parent presently resides in the other state.
As mentioned, the Michigan court has jurisdiction to make an initial child-custody determination under section MCL 722.1201(l)(a). Thus, if either MCL 722.1203(a) or (b) is met, a Michigan court can exercise jurisdiction to modify the current custody order. Because one parent resides in Michigan and the other in Virginia, MCL 722.1203(b) does not apply. Therefore, a Michigan court has jurisdiction to modify the existing custody order only if MCL 722.1203(a) applies.
The parties’ dispute centers on the status of the Virginia custody action. Plaintiff maintains that because the Virginia action is void ab initio, Virginia never had a basis for jurisdiction. Defendant ceded at oral argument that the Virginia court never issued a valid custody order. However, defendant asserted that “the registration of the prior Mississippi decree in Virginia, when combined with the Mississippi court’s relinquishment of jurisdiction, renders that document a ‘child-custody’ determination of the Virginia Court...We disagree with defendant’s assertion.
“Child-custody determination” means a judgment, decree, or other court order providing for legal custody, physical custody, or parenting time with respect to a child. Child-custody determination includes a permanent, temporary, initial, and modification order. Child-custody determination does not include an order relating to child support or other monetary obligation of an individual. [MCL 722.1102(c).]
We conclude that registration to enforce a child-custody determination from another state is distinct from actually making a child-custody determination. MCL 722.1102(d) plainly indicates that a “[c]hildcustody proceeding does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under article 3.” MCL 722.1102(d) (emphasis added). Further, nothing in MCL 722.1102(c) indicates that waiver of jurisdiction by Mississippi amounts to a child-custody determination. Thus, we conclude that the mere registration of the custody decree in Virginia and waiver of jurisdiction by Mississippi is not a childcustody determination.
We nonetheless conclude that the Michigan court did not err in declining to exercise jurisdiction to modify the custody order. Pursuant to the plain language of MCL 722.1203(a), the court of the other state, Virginia, has not determined it “no longer has exclusive, continuing jurisdiction ... or that a court of this state [Michigan] would be a more convenient forum ....” Regardless of the nonsuit, it cannot be contested that the Mississippi court, which at one time had exclusive, continuing jurisdiction, declined to exercise jurisdiction over this matter and expressly found Virginia the more appropriate forum. The record also shows that for some time the Virginia court properly exercised jurisdiction over this family. And while we appreciate that the effect of a nonsuit in Virginia is to render the action void ab initio, MCL 722.1203(a) expressly vests in Virginia the power to determine whether it “no longer has exclusive, continuing jurisdiction ....” Here, the Virginia district court expressly found that the nonsuit did not affect its jurisdiction. To the extent that plaintiff finds error in this determination, the appropriate remedy is not in the Michigan Court of Appeals. Rather, plaintiff should have sought a stay of the Michigan action, pending review of the Virginia district court’s determination by a higher court. See MCL 722.1206(3)(a). For these reasons, we conclude that the Michigan court did not abuse its discretion by declining to exercise jurisdiction under the UCCJEA to modify a foreign custody order.
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SAAD, C. J.
A jury convicted defendant of two counts of first-degree criminal sexual conduct, MCL 750.520b(l)(a) (victim under 13 years of age), and four counts of first-degree criminal sexual conduct, MCL 750.520b(l)(b)(iv) (victim aged 13 to 15 while defendant was a teacher at the victim’s school). He appeals his convictions and sentences. For the reasons set forth below, we remand this matter to the trial court for an evidentiary hearing.
I. FACTS AND PROCEEDINGS
Evidence showed that while defendant taught at Seventh-Day Adventist School in Onaway, he sexually molested a student, TJ, over a three-year period. Attorney Richard Steiger represented defendant at his preliminary examination. Before trial, Steiger accepted employment in the Presque Isle County prosecutor’s office. The prosecutor’s office employed only two prosecutors, Steiger, and Donald McLennan, who represented the people at trial. Defendant’s trial counsel, Janet Frederick-Wilson, failed to raise an objection to the potential conflict of interest and neither Steiger nor McLennan raised it in the trial court.
On appeal, defendant asserts a claim of ineffective assistance of counsel. Defendant argues, among other claims, that Frederick-Wilson was ineffective for failing to move for disqualification of the prosecutor’s office on the ground of conflict of interest. This Court granted defen dant’s motion for a Ginther hearing to create a factual record regarding his claim of ineffective assistance.
At the Ginther hearing, Frederick-Wilson testified that she knew that the preliminary examination transcript listed Richard Steiger as defendant’s attorney. She said she never spoke to Steiger, did not know Steiger, and did not know that Steiger ended his representation of defendant because he joined the prosecutor’s office. Frederick-Wilson said she never looked into any conflict with the prosecutor’s office because she “didn’t know any conflict existed.”
Defendant testified that, on two occasions, he told Frederick-Wilson that he did not know how he would get a fair trial because his former attorney was now working for the prosecutor’s office. Dean Tong, a forensic trial consultant who assisted Frederick-Wilson with trial preparation, testified that he discussed Steiger’s move to the prosecutor’s office with Frederick-Wilson and his concerns about the conflict of interest that created. James Samuels, an expert on the standard of care for legal practice, testified that there was no way that a small prosecutor’s office could have adequately screened McLennan from exposure to any information Steiger might have about the case. Samuels further opined that the prosecutor’s office should have referred the case to the Attorney General and that fundamental fairness should have compelled defense counsel to file a motion to disqualify the prosecutor’s office. No one from the Presque Isle County prosecutor’s office testified at the Ginther hearing.
The trial court ruled that defendant established the first part of his claim of ineffective assistance by demonstrating that, for numerous reasons, Frederick- Wilson’s performance fell below an objective standard of reasonableness. Yet, the court also ruled that defendant failed to establish that the error was outcome-determinative. The court observed that Steiger’s move to a two-attorney prosecutor’s office raised “a red flag which merited an inquiry which did not occur,” but held that defendant failed to establish the second aspect of the test for ineffective counsel by failing to present evidence that Steiger actually shared information with McLennan. The trial court found “overwhelming” evidence that defendant had “an inappropriate interest” in the complainant, and denied defendant’s motion for a new trial.
II. ANALYSIS
Generally, “[i]n order to establish a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance fell below an objective standard of reasonableness and that, but for defense counsel’s errors, there was a reasonable probability that the result of the proceeding would have been different” and the result that did occur was fundamentally unfair or unreliable. People v Ortiz, 249 Mich App 297, 311; 642 NW2d 417 (2001); see also People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). Here, we agree with the trial court that defense counsel committed a serious and inexcusable error when she failed to challenge the potential conflict of interest that arose from Steiger’s move to the prosecutor’s office. MRPC 1.9 prohibits an attorney from “switching sides” by representing a new client in a matter if the attorney’s former client has an interest adverse to the new client. The rule provides as follows:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.
(b) Unless the former client consents after consultation, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated has previously represented a client
(1) whose interests are materially adverse to that person, and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
MRPC 1.10 governs the limitations imposed on an attorney’s new firm with respect to representing parties whose interests are adverse to the new attorney’s former clients. It also requires the new firm to undertake and disclose safeguards against improper communications. It provides, in pertinent part, as follows:
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9(a) or (c), or 2.2.
(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or substantially related matter in which that lawyer, or a firm with which the lawyer was associated, is disqualified under Rule 1.9(b), unless:
(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule.
Further, MRPC 1.11(c) states:
Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter ....
In addition to the aforementioned sections of the Michigan Rules of Professional Conduct, Michigan caselaw also provides guidance on how trial courts should deal with these conflicts. The trial court should be promptly informed of a defense attorney’s move to the prosecutor’s office, and it should inquire into the matter and order an appropriate safeguard, such as disqualifying the individual attorney affected by the conflict of interest, or the entire prosecutor’s office, if necessary. See In re Osborne, 459 Mich 360, 368; 589 NW2d 763 (1999); see also People v Doyle, 159 Mich App 632, 644-645; 406 NW2d 893 (1987).
We affirm the trial court’s ruling that defense counsel’s failure to raise this matter constitutes an objectively unreasonable error. Clearly, a potential conflict of interest arose when Steiger joined the prosecutor’s office after representing defendant at the preliminary examination. Defense counsel was obligated to protect her client from the potential prejudice inherent in these circumstances. Had she raised a timely objection, the trial court would have been obligated to make an inquiry and fashion an appropriate safeguard.
We also agree with the trial court that defendant failed to show a reasonable probability that, absent defense counsel’s error, the result of his trial would be different. However, because during the pendency of this case, defendant’s former counsel joined the same two-attorney prosecutor’s office that pursued the case against him, we hold that it was plain error for the trial court to fail to explore the matter and to make a ruling that the prosecutor’s office employed appropriate safeguards to prevent Steiger from sharing information about defendant’s case with McLennan. Indeed, when confronted by an apparent conflict of interest of this magnitude, it is incumbent upon the trial court to fully explore the matter to determine whether disqualification of the prosecutor’s office is warranted and whether the failure to do so prejudiced defendant.
Defense counsel’s decision to “switch sides” by joining the two-attorney prosecutor’s office that prosecuted defendant raises serious concerns about the fair administration of justice. And, despite a clear obligation to do so, neither defense counsel nor the prosecutor took any steps that would allow the court to determine the extent of the conflict and what steps the prosecutor’s office took to minimize potential prejudice. Moreover, when confronted by evidence of this conflict, the trial court also failed to conduct a hearing to determine whether disqualification of the prosecutor’s office is necessary. This was plainly erroneous and, therefore, we remand this matter for an evidentiary hearing on this issue.
Our caselaw does not offer a wealth of guidance about the trial court’s inquiry with regard to a conflict of interest, but our Supreme Court has held that, in order to disqualify an entire prosecutor’s office, a court must consider “the extent to which knowledge has been shared by the disqualified lawyer and the disqualified lawyer’s role within the prosecutor’s office.” In re Osborne, 459 Mich 360, 369-370; 589 NW2d 763 (1999), citing Doyle, supra at 644-647. We further hold, as a majority of other jurisdictions have held, that, under these circumstances, in order “to ensure faith in the impartiality and integrity of the criminal justice system, and to prevent a chilling effect on a defendant’s willingness to confide in defense counsel, the entire prosecutor’s office will be presumed to be privy to the confidences obtained by the former defense lawyer.” State v McClellan, 179 P3d 825, 831 (Utah App, 2008). Thus, once a defendant has shown that a member of the prosecutor’s office counseled him or represented him in the same or related matter, a presumption arises that members of the prosecutor’s office have conferred about the matter. See, e.g., Lux v Commonwealth, 24 Va App 561, 575; 484 SE2d 145 (1997). To rebut the presumption of shared confidences, the prosecutor must show that “effective screening procedures have been used to isolate the defendant’s former counsel from the prosecution of the substantially related criminal charges.” McClellan, supra at 831.
In Manning v Waring, Cox, James, Sklar & Allen, 849 F2d 222, 225 (CA 6, 1988), the United States Court of Appeals for the Sixth Circuit rejected the district court’s automatic disqualification of a law firm based on one attorney’s conflict of interest, but it imposed on the firm the burden of establishing that no improper communications had been made, and that it had implemented adequate safeguards against future improper communications. We find the reasoning in Manning persuasive in the criminal context, especially in view of the heightened due process concerns. The court cited a presumption of shared confidences and directed the district court to determine whether that presumption had been rebutted. Id. The court observed:
Specifically, under the circumstances of this case as presented by the parties on appeal, it must be determined whether the confidences which [the attorney] acquired from the bank in the course of his prior representation and brought with him to [the firm] have been passed on, or are likely to be passed on, to members of the firm. Schiessle v. Stephens, 717 F. 2d 417, 421 (7th Cir. 1983). One method of rebutting the presumption is by demonstrating that specific institutional screening mechanisms have been implemented to effectively insulate against any flow of confidential information from the quarantined attorney to other members of his present firm. LaSalle Nat’l Bank v County of Lake, 703 F. 2d 252 (7th Cir. 1983). [Manning, supra at 225.]
To determine whether the prosecutor has rebutted the presumption of shared confidences, the court must consider whether the prosecutor’s office utilized formal screening procedures to insulate McLennan from Steiger’s knowledge of the case, whether Steiger participated in any aspect of the prosecution of the case, whether Steiger took part in discussions about the prosecution or otherwise revealed information to McLennan, and whether Steiger had access to defendant’s case file. See State v Davis, 141 SW3d 600, 612-615 (Tenn, 2004); Lux, supra. With regard to ap propriate insulation of counsel, the court should consider whether the prosecutor’s office implemented “effective, written screening procedures” that take into account “the structural organization of the law firm or office, the likelihood of contact between an attorney with a conflict of interest and the personnel involved in the ongoing representation, and the existence of rules that prevent the attorney with the conflict of interest from accessing files or information pertaining to a particular case . . . Davis, supra at 615 n 10. We also emphasize that the size of the prosecutor’s office is a factor that the trial court must consider to determine whether effective screening occurred.
Here, the trial did not require the prosecutor’s office to offer any proof of sufficient safeguards. Although this Court granted defendant’s motion for a remand for a Ginther hearing, the hearing was inadequate to resolve the conflict of interest question. The trial court erroneously focused on whether defendant could prove actual prejudice arising from the conflict of interest, instead of requiring the prosecutor to prove the absence of impropriety. Consequently, as the record currently stands, defendant’s conviction resulted from a trial involving a serious conflict of interest, with no proof that the prosecutor complied with necessary safeguards.
We therefore remand to the trial court for an evidentiary hearing on the question whether the prosecutor’s office undertook sufficient safeguards to prevent McLennan from receiving any communications from Steiger concerning defendant’s case. We emphasize that the prosecutor’s office bears the burden of establishing that it implemented measures to prevent improper communications and that it consistently followed through with these measures. Manning, supra at 227. The trial court’s inquiry must be thorough and in- depth, and take into consideration the prosecutor’s failure to come forward with this matter voluntarily, and the office’s ability to effectively quarantine the conflict of interest when the office employs only two attorneys. Unless the trial court finds sufficient evidence that the prosecutor’s office consistently undertook adequate safeguards to shield McLennan from the taint of Steiger’s conflict of interest, defendant’s convictions must be reversed and a new trial ordered.
Until the conflict of interest issue is resolved, it is not necessary to consider defendant’s remaining ineffective assistance of counsel claims and his sentencing claim.
We remand to the trial court for an evidentiary hearing in accordance with this opinion and we retain jurisdiction.
Defendant raised several other claims of ineffective assistance of counsel which, in light of our holding, need not be fully addressed at this time.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
In Doyle, this Court held that a conflict of interest affecting one prosecutor does not necessarily require disqualification of the entire prosecutor’s office, unless the conflict affects the elected county prosecutor himself. Doyle, 159 Mich App at 644-645. The Court explained:
When a court determines that a conflict of interest exists, the question then arises as to whether the circumstances require recusal of the prosecutor’s entire office or only of the particular prosecuting attorney. The general rule is that a conflict of interest involving the elected county prosecutor himself requires recusal of the prosecutor and the entire staff. Since assistant prosecutors act on behalf of the elected county prosecutor and are supervised by him, the policies of fairness to the defendant and the avoidance of an appearance of impropriety require this result. 31 ALR 3d 953. When the conflict of interest involves an assistant prosecuting attorney, as in these cases at bar, recusal of the entire prosecutor’s office is not automatic. [Id.]
We take judicial notice that the 2007 Michigan Bar Journal directory lists Steiger as the county prosecutor for Presque Isle. The 2006 directory lists McLennan in this position and defendant’s trial was held in April 2006. Defendant does not submit that Steiger was the elected county prosecutor at the time of trial. Assuming, for the present, that Steiger was not the elected prosecutor at the time of defendant’s trial, disqualification of the entire office would not be automatic under Doyle.
See also State v Kinkennon, 275 Neb 570, 576 n 9; 747 NW2d 437 (2008), citing United States v Goot, 894 F2d 231 (CA 7, 1990); United States v Caggiano, 660 F2d 184 (CA 6, 1981); Hart v State, 62 P3d 566 (Wy, 2003); Matter of RB, 583 NW2d 839 (SD, 1998); State v Dambrell, 120 Idaho 532; 817 P2d 646 (1991); State v Camacho, 329 NC 589; 406 SE2d 868 (1991); Frazier v State, 257 Ga 690; 362 SE2d 351 (1987); State v Bunkley, 202 Conn 629; 522 A2d 795 (1987); State v McKibben, 239 Kan 574; 722 P2d 518 (1986); State v Fitzpatrick, 464 So 2d 1185 (Fla, 1985); Young v State, 297 Md 286; 465 A2d 1149 (1983); Collier v Legakes, 98 Nev 307; 646 P2d 1219 (1982); State v Tippecanoe Co Court, 432 NE2d 1377 (Ind, 1982); State v Cline, 122 RI 297; 405 A2d 1192 (1979); State v Bell, 346 So 2d 1090 (La, 1977); Upton v State, 257 Ark 424; 516 SW2d 904(1974).
In Caggiano, the Sixth Circuit noted that government employees generally have less reason to share confidential information because they have no financial interest in the success of the prosecutor’s office. However, when it so ruled, the Court had before it ample evidence regarding the circumstances of counsel’s decision to join the large prosecutor’s office and the safeguards that were in place to prevent the sharing of confidential information. Caggiano, supra at 186-188. Thus, notwithstanding the Court’s observation about the motivations of government counsel, Caggiano supports our holding that an inquiry is necessary to determine whether the circumstances of the case require disqualification or whether the failure to conduct such an inquiry resulted in prejudice.
We noted earlier that the 2007 Michigan Bar Journal directory lists Steiger as the elected prosecutor for Presque Isle County, although it does not appear he assumed this position until after defendant’s trial. If he was the county prosecutor at the time of the trial, defendant is automatically entitled to a new trial. | [
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The Court orders that the relief sought in the complaint for a writ of mandamus is granted. Michigan United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359, 365-366 (2001). Reform Michigan Government Now! (RMGN) has submitted its proposal under the initiative petition procedure that Const 1963, art 12, § 2, establishes for amending the constitution. However, the proposal is a “general revision” of the constitution that can be accomplished only under Const 1963, art 12, § 3. Therefore, the constitutional power of initiative does not extend to the proposal. Consequently, the RMGN initiative petition does not meet the constitutional prerequisites for acceptance. As a result, the Secretary of State and the Board of State Canvassers are ordered and directed to stop the canvass, to reject the RMGN initiative petition, and to not allow the proposal to be placed on the ballot. Leininger v Secretary of State, 316 Mich 644 (1947); City of Jackson v Comm’r of Revenue, 316 Mich 694 (1947), citing Leininger, supra; see Michigan United Conservation Clubs, supra. See also MCR 7.216(A)(7).
The motion for stay is denied. This order shall be effective immediately. We retain jurisdiction. | [
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PER CURIAM.
Our Supreme Court has remanded this case for consideration as on leave granted. Defendant appeals that portion of the judgment of sentence requiring him to pay $300 for the cost of appointed counsel. We vacate that portion of the judgment and remand this matter for further proceedings. We have decided this appeal without oral argument, pursuant to MCR 7.214(E).
Defendant pleaded guilty of possession of child sexually abusive material, MCL 750.145c(4). The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to a term of two to six years in prison. The trial court also ordered defendant to pay statutory and court costs and $300 in appointed counsel costs.
This Court denied defendant’s delayed application for leave to appeal, but our Supreme Court, in lieu of granting leave to appeal, remanded this matter for consideration of the issue whether the trial court, before ordering reimbursement of the cost of court- appointed counsel, was required to consider defendant’s present and future ability to pay those costs.
A person who was afforded appointed counsel might be ordered to reimburse the county for the costs of that representation, if such reimbursement could be made without substantial hardship. A court need not make specific findings on the record regarding the defendant’s ability to pay, but must provide some indication that it considered the defendant’s financial situation before ordering reimbursement. The amount to be reimbursed must be related to the defendant’s present and future ability to pay. A court must afford the defendant notice and an opportunity to be heard before ordering payment of appointed counsel expenses. People v Dunbar, 264 Mich App 240, 251-255; 690 NW2d 476 (2004); MCR 6.005(B).
MCL 769.1k(l), which became effective on January 1, 2006, provides in pertinent part:
If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred pursuant to statute or sentencing is delayed pursuant to statute:
(a) The court shall impose the minimum state costs as set forth in [MCL 769. lj],
(b) The court may impose any or all of the following:
(i) Any fine.
(ii) Any cost in addition to the minimum state cost set forth in subdivision (a).
(iii) The expenses of providing legal assistance to the defendant.
(iu) Any assessment authorized by law.
(v) Reimbursement under [MCL 769.If].
This statute does not eliminate the requirement set forth in Dunbar that the trial court consider a defendant’s ability to pay before ordering reimbursement of appointed counsel costs. See People v Arnone, 478 Mich 908 (2007).
Defendant failed to object to the order requiring him to pay attorney fees; therefore, our review is for plain error. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). A review of the sentencing transcript shows that the trial court gave no indication that it considered defendant’s ability to pay before ordering reimbursement.
Defendant asserts that he owes the county and the state more than $10,000 and maintains that he has no ability at present, and will have no ability in the future, to reimburse the county for the cost of his appointed counsel in this case. The trial court gave no indication that it considered any such information when ordering defendant to reimburse the county for the cost of appointed counsel. Therefore, a remand for further proceedings is necessary. Dunbar, supra at 251-255.
We vacate that portion of the judgment of sentence requiring defendant to pay the county $300 for the cost of his appointed counsel and remand this matter to the trial court for consideration of defendant’s present and future ability to reimburse the county for the cost of representation.
An evidentiary hearing is not required on remand. The trial court may rely on an updated report from the probation department. See id. at 255 n 14. If the trial court concludes that the reimbursement requirement should be eliminated or modified, it should enter an amended judgment of sentence to that effect. MCL 769.1k(b)(iii) provides legislative authorization for an order requiring payment of fees for a court-appointed attorney; therefore, such an order may be made part of the judgment of sentence, if appropriate.
We affirm the judgment in all other respects. We do not retain jurisdiction. | [
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PER CURIAM.
Plaintiff, Stephanie Empson-Laviolette (Empson), an enrolled member of the Pokagon Band of Potawatomi Indians (Tribe), appeals by right the trial court’s order granting sole custody of her son, Z.E., to appellees Shannon and Tricia Scott. Below, pursuant to the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., Empson moved the trial court to dismiss the Scotts’ motion for custody and to return Z.E. to her custody because she had withdrawn her consent to the Scotts’ guardianship of Z.E. Because the ICWA allows the parent of an Indian child who consents to a foster care placement of the child to withdraw consent to the placement at any time and to have the child returned to the parent’s custody, we agree with Empson that she was entitled to have Z.E. returned to her custody. Therefore, we vacate the trial court’s order granting custody of Z.E. to the Scotts and remand this case for an order terminating the Scotts’ guardianship of Z.E. and for the effectuation of the return of Z.E. to Empson.
I. BASIC FACTUAL AND PROCEDURAL HISTORY
On July 21, 1996, Z.E. was born to Empson and defendant Nathaniel Crago. It is undisputed that Z.E., like his mother, is an enrolled member of the Tribe.
On August 16, 2004, Shannon and Tricia Scott filed a petition for guardianship of Z.E. The box next to question 5 of the petition, which read, “The minor is a member of/eligible for membership in an American Indian tribe/band,” was not checked. Consent waivers to the guardianship signed by Empson and Crago accompanied the Scotts’ petition. On August 31, 2004, the trial court appointed the Scotts temporary guardians of Z.E. The guardianship order specifically stated that Z.E.’s custody could not be changed from the Scotts without the consent and order of the trial court.
On December 1, 2004, Empson, claiming that her consent to the Scotts’ guardianship of Z.E. had been fraudulently obtained, moved to terminate the guardianship and to have Z.E. returned to her custody. Empson’s motion contained no indication that Z.E. was Native American. On February 2, 2005, the Scotts moved for sole custody of Z.E. The trial court subsequently stayed the guardianship proceedings. It ordered that the Scotts were to remain Z.E.’s guardians until further order of the court.
Several months later, on August 15, 2005, Empson filed a second petition to terminate the Scotts’ guardianship of Z.E. This petition provided the first notice to the trial court that Z.E. was Native American. It stated that Z.E.’s race was “Native American.” The trial court denied the petition because the guardianship proceedings had been stayed pending the resolution of the Scotts’ motion for custody.
Testimony on the Scotts’ motion for custody of Z.E. commenced in January 2006. After Empson testified, the trial court adjourned the hearing in order that the submitted psychological evaluation report could be amended to include the Scotts. The trial court did not hear further testimony on the Scotts’ motion for custody until February 2008.
In the meantime, Empson moved the trial court to dismiss the Scotts’ motion for custody. Empson asserted that because Z.E. was Native American, the ICWA governed the proceedings. She contended that because the Scotts’ motion effectively removed Z.E. from her custody and because the heightened standards under 25 USC 1912(d) and (e) regarding the removal of an Indian child from the care of a parent or Indian custodian had not been satisfied, the Scotts’ motion had to be dismissed. Empson also moved for the return of Z.E. to her custody. She claimed that the return of Z.E. to her custody was mandated by 25 USC 1913(b), which allowed her to revoke her consent to the Scotts’ guardianship of Z.E. The trial court denied the motions. It held that because the guardianship proceedings were initially consensual, the ICWA did not apply to the guardianship proceedings. The trial court further held that because the Scotts were the guardians of Z.E., the Scotts’ motion for custody of Z.E., if granted, would not remove Z.E. from the custody of Empson. Therefore, according to the trial court, the ICWA did not apply to the custody proceedings.
In February 2008, after hearing further testimony on the Scotts’ motion for custody, the trial court granted sole custody of Z.E. to the Scotts.
II. STANDARD OF REVIEW
Issues involving application of the ICWA present questions of law that we review de novo. In re Fried, 266 Mich App 535, 538; 702 NW2d 192 (2005); In re NEGP, 245 Mich App 126, 130; 626 NW2d 921 (2001). Issues of statutory interpretation are also questions of law that we review de novo. Apsey v Mem Hosp, 477 Mich 120, 127; 730 NW2d 695 (2007). When interpreting a federal statute, our goal is to give effect to the intent of Congress. Walters v Nadell, 481 Mich 377, 381; 751 NW2d 431 (2008).
III. ISSUES ADDRESSED ON APPEAL
On appeal, Empson argues that the trial court erred by holding that the ICWA did not apply to either the guardianship proceedings or the custody proceedings and that the trial court violated the ICWA at various times throughout the proceedings. We do not address all of Empson’s arguments on appeal because we agree with Empson that the ICWA applied to the guardianship proceedings and that the trial court violated the ICWA when it failed to return Z.E. to her custody after she revoked her consent to the Scotts’ guardianship of Z.E. To reach this conclusion, we were required to address the following three issues: (1) whether the ICWA applied to the guardianship proceedings, (2) whether Empson was allowed to withdraw her consent to the Scotts’ guardianship of Z.E., and (3) whether the ICWA preempted the stay mandated by MCL 722.26b(4).
IV THE INDIAN CHILD WELFARE ACT
In adopting the ICWA, Congress sought to establish “minimum Federal standards for the removal of Indian children from their families” in order to protect the best interests of Indian children and to promote the stability and security of Indian tribes and their families. 25 USC 1902; In re Elliott, 218 Mich App 196, 201; 554 NW2d 32 (1996). In a custody proceeding involving an Indian child, a state court shall apply the minimum standards articulated in the ICWA unless the applicable state law provides a higher standard of protection to the Indian child’s parent or Indian custodian. 25 USC 1921 provides:
In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this title, the State or Federal court shall apply the State or Federal standard.
The Michigan Legislature has not enacted any standards providing greater protections than the ICWA to the parent or Indian custodian of an Indian child. Accordingly, the provisions of the ICWA apply to custody proceedings involving Indian children in Michigan.
We now turn to the three issues necessary to reach our conclusion that the trial court erred by failing to return Z.E. to Empson’s custody after she revoked her consent to the Scotts’ guardianship of Z.E.
A. DID THE ICWA APPLY TO THE GUARDIANSHIP PROCEEDINGS?
There are two prerequisites to invoking the protections of the ICWA. In re Johanson, 156 Mich App 608, 612; 402 NW2d 13 (1986). First, the child must be an “Indian child” as defined by 25 USC 1903(4). Id. There is no dispute that Z.E. is an Indian child as the term is defined by the ICWA. Second, the custody proceeding must be “a child custody proceeding” as defined by § 1903(1). Id. A “child custody proceeding” is defined to include the “foster care placement” of an Indian child. 25 USC 1903(1). A “foster care placement” is defined as
any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated. [25 USC 1903(l)(i).]
The ICWA definition of a “foster care placement” contains four requirements: (1) the action removes an Indian child from his parent or Indian custodian, (2) the Indian child is temporarily placed in a foster home, institution, or the home of a guardian or conservator, (3) the parent or Indian custodian is unable to have the child returned upon demand, and (4) the parent’s rights were not terminated. 25 USC 1903(l)(i); JW v RJ, 951 P2d 1206, 1212 (Alas, 1998), overruled in part on other grounds by Evans v McTaggert, 88 P3d 1078 (Alas, 2004). In this case, the last three requirements were clearly met. The trial court named the Scotts temporary guardians of Z.E., ordered that Z.E. shall not be removed from the custody of the Scotts absent the consent and order of the court, and did not terminate the parental rights of Empson. In addition, because Empson had legal custody of Z.E. before the trial court appointed the Scotts as Z.E.’s guardians, the guardianship order removed Z.E. from Empson’s custody. See JW, supra at 1213. Accordingly, the guardianship proceedings involved a “foster care placement” of Z.E., and, therefore, the ICWA applied to the proceedings. In re Johanson, supra.
Nevertheless, the trial court ruled that the ICWA did not apply to the guardianship proceedings because, at their start, the proceedings were voluntary. This ruling by the trial court misconstrues the ICWA. Voluntariness of the proceedings is only a consideration for purposes of determining whether the Indian child’s tribe is entitled to notice of a child custody proceeding. See 25 USC 1912(a). No other provision in the ICWA limits its application to a proceeding based on the voluntariness of the proceeding. The ICWA, by its terms, applies to voluntary and involuntary child custody proceedings. Mississippi Band of Choctaw Indians v Holyfield, 490 US 30, 50 n 25; 109 S Ct 1597; 104 L Ed 2d 29 (1989). Thus, the fact that Empson consented to the Scotts’ being appointed guardians of Z.E. was irrelevant in the determination whether the ICWA applied to the guardianship proceedings.
B. WAS EMPSON ALLOWED TO WITHDRAW HER CONSENT TO THE SCOTTS’ GUARDIANSHIP?
Having concluded that the ICWA applied to the guardianship proceedings, we must determine whether, pursuant to 25 USC 1913(b), Empson was allowed to withdraw her consent to the Scotts’ guardianship of Z.E.
Section 1913(b) provides: “Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.” The language of § 1913(b) appears to be unambiguous. Unambiguous statutory language is to be enforced as written. Ayar v Foodland Distributors, 472 Mich 713, 716; 698 NW2d 875 (2005). Thus, § 1913(b) appears to grant Empson the ability to withdraw her consent “at any time” to the trial court’s appointment of the Scotts as Z.E.’s guardians and to have Z.E. returned to her custody.
However, apparently plain statutory language can be rendered ambiguous by its interaction with other statutes. Ross v Modern Mirror & Glass Co, 268 Mich App 558, 562; 710 NW2d 59 (2005). By definition, a “foster care placement” involves a situation where the parent of an Indian child cannot have the child back on demand. 25 USC 1903(l)(i). Thus, when read together, § 1903(l)(i) and § 1913(b) appear to be in conflict: the former provides that an Indian child in a “foster care placement” cannot be returned to his parent or Indian custodian upon demand by the parent or custodian, while the latter provides that the parent or Indian custodian of the Indian child may withdraw her consent to a “foster care placement” at any time and have the child returned to her custody. A statutory provision is ambiguous if it irreconcilably conflicts with another provision. Lansing Mayor v Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840 (2004). However, we will only find a statutory provision ambiguous if all other means of interpretation have been applied and found wanting. Elida v Braman, 278 Mich App 60, 66; 748 NW2d 244 (2008).
In resolving whether §§ 1903(l)(i) and 1913(b) irreconcilably conflict, we are guided by the following rules of statutory construction. We liberally construe remedial statutes in favor of the persons intended to be benefited. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 77; 503 NW2d 645 (1993). The ICWA is a remedial statute designed to protect Indian children and the stability and security of Indian tribes and families. 25 USC 1902; see also Mississippi Band of Choctaw Indians, supra at 37 (“It does so by establishing a Federal policy that, where possible, an Indian child should remain in the Indian community.”) (quotation marks and citation omitted). Accordingly, we are to construe the ICWA in favor of Empson, as she is the intended beneficiary of the ICWA. In addition, we must avoid a construction that would render any part of the statute surplusage or nugatory. In re Complaint of McLeodUSA Telecom Services, Inc, 277 Mich App 602, 611; 751 NW2d 508 (2008). A statutory provision is rendered nugatory when an interpretation fails to give the provision meaning or effect. Apsey, supra at 131. Further, we must consider the placement of the apparent conflicting provisions within the act and the purpose of each provision. Sturgis Bank & Trust Co v Hillsdale Community Health Ctr, 268 Mich App 484, 489; 708 NW2d 453 (2005). Finally, we must give the statutory language a reasonable construction that best accomplishes the purpose of the statute. King v Reed, 278 Mich App 504, 515; 751 NW2d 525 (2008).
In applying these principles, we note that § 1903 is the definitional section of the ICWA. Because the ICWA only applies if the proceeding is a “child custody proceeding” as defined by § 1903(1), In re Johanson, supra, the purpose of § 1903(1) is to define the proceedings to which the ICWA applies. In contrast, § 1913 identifies the rights provided to the parent or Indian custodian of an Indian child when the parent or custodian voluntarily consents to a foster care placement of the child or the parent agrees to the termination of parental rights. Relevant to our consideration, we note that, in addition to § 1913(b), which allows the parent or Indian custodian to withdraw consent to a foster care placement, § 1913(c) allows the parent, for any reason, to withdraw consent to the termination of parental rights to, or adoptive placement of, the Indian child at any time before the entry of a final decree of termination or adoption and, pursuant to § 1913(d), after the entry of a final decree of adoption, the parent may withdraw consent on the basis that the consent was obtained through fraud or duress. Thus, the question is whether a definitional provision can render nugatory a provision setting forth a party’s substantive rights, because if we were to conclude that § 1903(l)(i) prevents a parent or Indian custodian from withdrawing consent to a foster care placement of an Indian child, § 1913 would be rendered nugatory. It would have no effect.
As stated above, we must avoid a construction of the ICWA that renders any portion of it surplusage or nugatory. Accordingly, we conclude that § 1903(l)(i) is only applicable when determining whether the ICWA applies to a custody proceeding. It is not applicable when determining the rights of a parent or Indian custodian after the parent or custodian has voluntarily consented to a “foster care placement” of an Indian child. Rather, it is § 1913 that delineates the rights of the parent or Indian custodian who has consented to a “foster care placement” of an Indian child. In other words, if a parent or Indian custodian of an Indian child has consented to a “foster care placement,” as the term is defined in § 1903(l)(i), the parent or custodian may “at any time” thereafter withdraw consent to the placement under § 1913(b) and have the Indian child returned to his or her custody. This construction gives effect to both provisions and accomplishes Congress’s goal in adopting the ICWA of protecting Indian families. Thus, Empson, even though she voluntarily consented to the trial court’s appointment of the Scotts as Z.E.’s guardians, which constituted a “foster care placement” under § 1903(l)(i), had the right to withdraw her consent to the guardianship and to have Z.E. returned to her custody.
C. DID THE ICWA PREEMPT THE STAY MANDATED BY MCL 722.26b(4)?
Empson withdrew her consent to the Scotts’ guardianship of Z.E. on December 1, 2004, and August 15, 2005. However, because of the stay imposed by MCL 722.26b(4) in the guardianship proceedings, the trial court never heard Empson’s petitions, much less did it return Z.E. to Empson’s custody. MCL 722.26b(4) provides in pertinent part:
Upon the filing of a child custody action brought by a child’s guardian or limited guardian, guardianship proceedings concerning that child in the probate court are stayed until disposition of the child custody action. A probate court order concerning the guardianship of the child continues in force until superseded by a circuit court order.
The final issue in reaching our conclusion that the trial court erred by failing to return Z.E. to Empson’s custody after Empson withdrew her consent to the Scotts’ guardianship of Z.E. is whether the ICWA preempted the stay mandated by MCL 722.26b(4). Federal law preempts a state law if the state law stands as an obstacle to the accomplishment of the full objectives of Congress. Ammex, Inc v Dep’t of Treasury, 272 Mich App 486, 497; 726 NW2d 755 (2006).
The ICWA provides minimum standards for the removal of Indian children from their families, 25 USC 1902, and a state court must apply those standards unless state law provides a higher standard of protection to the Indian child’s parent or Indian custodian, 25 USC 1921. Included within the ICWA’s minimum protections for an Indian child’s parent is the parent’s right to “withdraw consent to a foster care placement under State law at any time.” 25 USC 1913(b) (emphasis added). Thus, the stay mandated by MCL 722.26b(4) infringed on the minimum protections Empson was afforded under § 1913(b) because once the Scotts moved for sole custody of Z.E. and the guardianship proceedings were stayed, Empson no longer had the ability to withdraw her consent to the Scotts’ guardianship of Z.E. and to have Z.E. returned to her custody. In other words, the stay prevented Empson from withdrawing her consent to the guardianship “at any time.” Because the stay mandated by MCL 722.26b(4) stood as an obstacle to providing Empson the minimum protections she was afforded by Congress, the ICWA preempted the stay imposed in the guardianship proceedings. Accordingly, upon receiving Empson’s August 15, 2005, petition to terminate the Scotts’ guardianship of Z.E., the trial court should have lifted the stay and addressed the merits of the petition seeking the return of Z.E. to Empson’s custody pursuant to 25 USC 1913(b).
V CONCLUSION
The ICWA applied to the guardianship proceedings. Consequently, Empson retained the right to revoke her consent to the Scotts’ guardianship of Z.E. at any time, and, on August 15, 2005, Empson revoked her consent. Because the ICWA preempted the stay imposed by MCL 722.26b(4) in the guardianship proceedings, the trial court should have terminated the guardianship order and returned Z.E. to Empson’s custody as required by 25 USC 1913(b). We therefore vacate the trial court’s February 19, 2008, order granting custody of Z.E. to the Scotts and remand this case for the entry of an order terminating the Scotts’ guardianship of Z.E. On remand, within a reasonable time, the trial court shall also effectuate the return of Z.E. to Empson.
Vacated and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Before living with the Scotts, Z.E. lived with his maternal grandparents, Empson’s parents. Empson placed Z.E. in the care of the Scotts in the summer of 2004 after allegations arose that her father had abused Z.E.
We recognize that the guardianship proceedings were before the probate court, see MCL 700.1302(c), which provides that a probate court has exclusive jurisdiction over guardianship proceedings, and that the subsequent custody proceedings were before the circuit court. However, because the probate judge presided over the custody proceedings, see MCL 722.26b(5), we refer to the probate court and the circuit court as the trial court.
Crago consented to the Scotts’ motion for custody of Z.E.
Certain provisions of the ICWA are codified in the court rules. See MCR 3.980.
A temporary guardianship is limited to six months. MCL 700.5213(3).
In reaching this conclusion, we note that the Scotts do not assert, and have never asserted, that the guardianship order did not remove Z.E. from Empson’s custody.
25 USC 1912(a) provides in relevant part:
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of... an Indian child shall notify the parent or Indian custodian and the Indian child’s trihe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.
See, e.g., 25 USC 1913(c) (“In any voluntary proceeding for termination of parental rights to ... an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination ....”).
We limit our analysis to whether Empson was entitled to have Z.E. returned to her custody after the filing of the August 15, 2005, petition. Before this petition, no filings indicated that Z.E. was Native American.
The Scotts only had standing to seek custody of Z.E. because they were his guardians. See MCL 722.26b(l); Kater v Brausen, 241 Mich App 606, 610; 617 NW2d 40 (2000). Because the Scotts’ guardianship of Z.E. should have been terminated after Empson withdrew her consent to the guardianship in August 2005, the Scotts thereafter had no standing to seek custody of Z.E. See MCL 722.26c (setting forth when a third party may bring an action for custody of a child). | [
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Talbot, J.
Defendants, Ericka Nichole Jackson and Keisa Yvette Cooper, appeal by delayed leave granted. Defendants were charged in the district court with violating MCL 333.21771(1), which is a misdemeanor pursuant to MCL 333.21799c(l)(e). The district court denied defendants’ motion to quash the complaints and dismiss the charges against them. Defendants appealed to the circuit court, which affirmed the district court’s ruling. We reverse and remand.
I. FACTUAL HISTORY
Defendants worked as nurse’s aides at Cherrywood Nursing and Living Center. On October 13, 2004, a resident of the nursing home, Lillian McIntyre, passed away. Although other nurse’s aides had been assigned to clean and prepare McIntyre’s body for transport to a funeral home, defendants entered the room and took over the task. Defendants posed McIntyre’s body by raising her hands in the air, putting her arms behind her head, and bending her knees. They also patted McIntyre’s hand and told her to “wake up.” Defendant Tahirah H. Shakur, using the camera on her cellular phone, took a picture of defendants Keisha Y. Cooper and Ericka N. Jackson hugging McIntyre’s dead body.
Defendants were suspended from employment pending an investigation and were subsequently fired. The Department of Community Health (DCH), Health Investigation Division, launched an investigation and determined that there was insufficient evidence that defendants had violated the Public Health Code (PHC) and, therefore, did not revoke their nurse’s aides licenses. However, the DCH Bureau of Health Systems cited the nursing home for “a violation of patient dignity.”
II. LOWER COURT ARGUMENTS AND RULINGS
Although the DCH ended its investigation against defendants, the Attorney General subsequently charged defendants with physically mistreating a patient in violation of MCL 333.21771(1) of the nursing-homes section of the PHC. Defendants denied the veracity of the allegations and filed motions in the district court to quash the criminal complaints and dismiss the charges against them, asserting, under the plain language of the statute, that McIntyre ceased being a patient when she died. Defendants contended that a deceased person cannot feel and, therefore, cannot be mentally or emotionally abused, mistreated, or harmfully neglected. Moreover, defendants argued that the alleged conduct, i.e., taking pictures of people hugging the deceased, did not amount to abuse or mistreatment.
The district court denied defendants’ motions and noted that MCL 333.21703(1) defines a “patient” as a “person who receives care or services at a nursing home.” “Person,” in turn, is defined as an “individual, partnership, association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity” under MCL 333.1106(2). The district court then reviewed dictionary definitions and determined that a “patient” is “an object that is capable of receiving treatment.” The court noted that the definition did not require the object to be living. The court further reasoned that, if an object is capable of receiving treatment, it is also capable of being mistreated. More specifically, a dead body is capable of receiving treatment such as involving preparation for burial. The district court ruled that the Legislature could have limited MCL 333.21771(1) to living persons had it so intended and the court declined to read such limiting language into the statute. The court further noted that it was the jury’s job to determine whether defendants’ specific conduct rose to the level of abuse or mistreatment. Thereafter, all three defendants filed applications for leave to appeal to the Macomb Circuit Court, which were granted, and the cases were consolidated.
In the circuit court, defendants argued that MCL 333.21771(1) was inapplicable to their alleged conduct because the victim must be a “patient” and, therefore, must be living. Defendants incorrectly asserted that the term “patient” is not defined under the statute and resorted to dictionary definitions of the term to plead their case. Defendants relied on the definition of “patient” in Black’s Law Dictionary (4th ed) as “one who has been committed to the asylum and has remained there for care and treatment,” and Merriam-Webster Dictionary’s definition as “a person under medical care.” Defendants also relied on dictionary definitions of “mistreat” as “to treat badly; abuse” and “neglect” as “disregard; to leave undone or unattended, especially through carelessness; omit; ignore; overlook; forget.” Defendants then argued that the plain language of the statute evinces the Legislature’s intent to protect only living nursing-home residents because it does not specifically mention deceased residents. Further, the statute speaks of physical, mental, or emotional harm, which defendants asserted could only be inflicted on a living person. On the basis of this language, defendants argued that the body of a recently deceased person cannot be a “patient” and, therefore, is not protected by the statute. Defendants also relied on People v Hutner, 209 Mich App 280; 530 NW2d 174 (1995), in which this Court found that a dead body could not consent, or deny consent, to sexual acts to support their assertion that a person must be alive to suffer the physical and emotional effects of mistreatment in order to be covered by the statute.
In response, the prosecutor noted that McIntyre clearly received care or services from Cherrywood while she was alive. The question remained whether MCL 333.21771(1) required a “person” to be living to continue to receive the protections of the statute. Specifically, the prosecutor noted that, contrary to defendants’ reliance on Hutner, “mistreatment” does not require an injury or suffering by the victim. Accordingly, the victim need not be alive like the victim of criminal sexual conduct (CSC), who must deny consent to a sexual act. Therefore, a dead body should be considered a patient pursuant to MCL 333.21771(1).
The circuit court affirmed the district court’s order denying defendants’ motions to quash the complaints and dismiss the charges. The circuit court reviewed the statutory definitions and further noted that the PHC defines “individual” as “a natural person.” MCL 333.1105(1). Although the Legislature failed to define “natural person” and, therefore, did not specifically indicate whether he or she could be deceased, the circuit court noted that the Legislature did differentiate between living and dead persons in numerous statutes in the PHC. Accordingly, the court determined that the Legislature must have purposefully omitted such language in MCL 333.21771(1). The circuit court then noted that McIntyre continued to be a “patient” under the definition of MCL 333.21703(1) because she was still receiving treatment when her body was being prepared for transfer to a funeral home.
The circuit court also rejected defendants’ reliance on Hutner, supra, for the proposition that a deceased person cannot suffer physically, mentally, or emotionally and, therefore, is not protected under MCL 333.21771(1). The court first noted that Hutner involved a charge of third-degree CSC. An element of that offense is a nonconsensual sexual act, which requires a living person to either consent or deny consent. The circuit court parsed out the phrases in MCL 333.21771(1) and determined that the qualifying phrase “physically, mentally or emotionally” applies only to “abuse.” Similarly, the phrase “harmfully” applies only to “neglect.” Accordingly, the circuit court determined that the prosecutor needed only to demonstrate that defendants “mistreated” McIntyre to pursue the current charges. The court then found, “While a person would arguably have to be alive to suffer physical, mental or emotional abuse, a person need not be alive to suffer mistreatment” and that an inanimate object might be “treated badly.”
III. STANDARD OP REVIEW
We review questions of statutory interpretation de novo. People v Buehler, 477 Mich 18, 23; 727 NW2d 127 (2007).
IV ANALYSIS
The sole issue on appeal involves the interpretation of MCL 333.21771(1) of the PHC. Specifically, the dispute centers on whether a deceased person can be considered a “patient” subject to mistreatment, abuse, or neglect. As previously discussed by this Court:
The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. However, if reasonable minds can differ regarding the meaning of the statute, judicial construction is appropriate. [USAA Ins Co v Houston Gen Ins Co, 220 Mich App 386, 389-390; 559 NW2d 98 (1996) (citations omitted).]
In addition:
Statutes that relate to the same subject or that share a common purpose are in pari materia and must be read together as one law, even if they contain no reference to one another and were enacted on different dates. “Statutes relate to the same subject if they relate to the same person or thing or the same class of persons or things.” The object of the in pari materia rule is to give effect to the legislative intent expressed in harmonious statutes. If statutes lend themselves to a construction that avoids conflict, that construction should control. [Walters v Leech, 279 Mich App 707, 709-710; ___ NW2d ___ (2008) (citations omitted).]
When interpreting a statute, we rely on its plain language and are precluded from “read[ing] into a statute language that was not placed there by the Legislature.” Risk v Lincoln Charter Twp Bd of Trustees, 279 Mich App 389, 399; ___ NW2d ___ (2008).
Defendants were charged with violating MCL 333.21771(1), which provides, in part: “A licensee, nursing home administrator, or employee of a nursing home shall not physically, mentally, or emotionally abuse, mistreat, or harmfully neglect a patient.” The subsequent debate and rulings from the lower courts focused on whether a deceased individual qualified as a “patient” for invocation of the statute. MCL 333.21703(1) defines “patient” as “a person who receives care or services at a nursing home.” MCL 333.1106(2) defines a “person” as “an individual, partnership, cooperative, association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity.” An “individual” is further defined by MCL 333.1105(1) as a “natural person.” Unfortunately, the Legislature failed to define the term “natural person” within the PHC. This omission led the lower courts and parties to pursue a definition of the term “natural person,” through use of a variety of dictionaries, to determine whether the term encompasses both living and deceased individuals. We note that these efforts were not particularly fruitful as the various definitions cited by the respective parties and the courts were circular in nature and provided no meaningful insight into the intent or meaning of the statutory language.
Instead, we look solely to the provisions of the statute to determine the meaning of these ordinary terms and whether they were intended to apply to the specific factual circumstances presented in this case. As noted, a “patient” is defined as “a person who receives care or services at a nursing home.” MCL 333.21703(1). What a nursing home is mandated to provide with regard to “care and services” is delineated in MCL 333.21715, which states, in relevant part:
(1) A nursing home shall provide:
(a) A program of planned and continuing nursing care under the charge of a registered nurse in a skilled facility and a licensed practical nurse with a registered nurse consultant in an intermediate care facility.
(b) A program of planned and continuing medical care under the charge of physicians.
(2) Nursing care and medical care shall consist of services given to individuals who are subject to prolonged suffering from illness or injury or who are recovering from illness or injury. The services shall be within the ability of the home to provide and shall include the functions of medical care such as diagnosis and treatment of an illness; nursing care via assessment, planning, and implementation; evaluation of a patient’s health care needs; and the carrying out of required treatment prescribed by a physician.
Given the clear and unambiguous language of MCL 333.21715(2), the care and services that a patient receives in a nursing-home setting are necessarily those provided to a live individual for medical treatment, care, and diagnosis. Because the deceased was not receiving statutorily defined “care and services” at the time relevant to this case, she cannot be construed as a “patient” for purposes of MCL 333.21771(1). Consequently, while we condemn the behavior of defendants and find their actions reprehensible and disrespectful to the deceased, they do not comprise a violation of the statute. This interpretation is further supported by a separate provision of the PHC that defines a “dead body” as “a human body or fetus, or part of a dead human body or fetus, in a condition from which it may reasonably be concluded that death has occurred.” MCL 333.2803(1). Notably, the PHC does not use the term “patient,” “person,” “individual,” or “natural person” to define what constitutes a “dead body.” This is consistent with our interpretation of the statutory language as demonstrating the Legislature’s intent to protect living patients or residents of nursing homes and provide a mechanism for addressing instances of abuse, mistreatment, and neglect when they occur.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Although defendant Tahirah Haseena Shakur was involved in the circuit-court appeal, she does not participate in the appeal before this Court.
We use the terminology “to quash” because it was employed by the parties in the lower courts, but construe defendants’ respective motions to be more properly considered as motions to dismiss.
The statutory subsection provides, in relevant part: “A[n]... employee of a nursing home shall not physically, mentally, or emotionally abuse, mistreat, or harmfully neglect a patient.” MCL 333.21771(1).
Specifically, this Court ruled, “A dead body is not a person .... A dead body has no will to overcome. It does not have the same potential to suffer physically or mentally as a live or even an unconscious or dying victim.” Hutner, supra at 284. | [
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ZAHRA, P.J.
Flaintiffs, Rochelle Nash and Jeffrey Salter, appeal as of right the order of the circuit court dismissing their complaint for determination of custody. On appeal, they argue that the circuit court erred in finding that it lacked subject-matter jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1201, to make a child-custody determination with respect to their daughter. Flaintiffs had asked the circuit court to take jurisdiction of this custody dispute and deny enforcement of a Texas custody order that plaintiffs contend was rendered without jurisdiction. We conclude that plaintiffs cannot establish home- state jurisdiction under the UCCJEA. We also conclude that the circuit court properly determined that the Texas court established jurisdiction substantially in conformity with the UCCJEA. Further, we conclude that defendants, Steve Salter and Karen Salter, properly intervened in the custody action in Texas instituted by plaintiff Jeffrey Salter. We affirm.
I. BASIC FACTS AND PROCEEDINGS
This case arises from a custody dispute between plaintiffs, the parents of the child, and defendants, who are Jeffrey Salter’s parents. Plaintiffs and the child, who was born August 3, 2006, lived with defendants in Texas from approximately August 5, 2006, until March 20, 2007. On March 20, 2007, Rochelle Nash moved to Michigan, and, the next day, Jeffrey Salter filed a petition in the 356th Judicial District Court of Texas (“the Texas court”) asking that court to enter an order making him “sole managing conservator” of the child. On or about May 20, 2007, Jeffrey Salter moved to Michigan with the child. He apparently did not further pursue the petition for custody. The child resided in Michigan with both plaintiffs commencing on or about May 21, 2007. On July 23, 2007, defendants filed a “Petition in Intervention of Grandparents in Suit Affecting the Parent-Child Relationship” in the Texas court. They claimed that “appointment of [plaintiffs] as joint managing conservators would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development,” and asked the Texas court to appoint them joint managing conservators with the “exclusive right to designate the primary residence of the child.”
Plaintiffs filed their complaint for determination of jurisdiction and custody in the Wayne Circuit Court (“the Michigan court”) on August 22, 2007. They argued that the Texas court did not have jurisdiction under the UCCJEA and that the Michigan court had jurisdiction. Accordingly, plaintiffs asked the Michigan court to award them custody of the child.
On October 1, 2007, the Texas court entered an order appointing defendants temporary sole managing conservators and plaintiffs temporary possessory conservators of the child. The Texas court’s order provided that defendants had the right to physical custody of the child and that plaintiffs were to have possession of the child at times mutually agreed upon in advance by the parties. The order further provided that defendants “shall take immediate possession of the child at [plaintiffs’] residence” in Michigan. Defendants successfully moved to dismiss plaintiffs’ complaint in the Michigan court. An order dismissing the Michigan action for lack of subject-matter jurisdiction was entered on November 7, 2007. The child moved back to Texas and has resided with defendants since December 3, 2007. Plaintiffs returned to Texas to be near the child.
II. STANDARD OF REVIEW
“Whether a trial court has subject-matter jurisdiction presents a question of law that this Court reviews de novo.” Atchison v Atchison, 256 Mich App 531, 534; 664 NW2d 249 (2003). However, “the determination whether to exercise jurisdiction under the UCCJEA [is] within the discretion of the trial court, and would not be reversed absent an abuse of that discretion.” Young v Punturo (On Reconsideration), 270 Mich App 553, 560; 718 NW2d 366 (2006). The jurisdictional determination in this case involves the UCCJEA, codified in Michigan as MCL 722.1101 et seq. We review issues of statutory construction de novo as questions of law. Atchison, supra at 534-535. We also review constitutional questions de novo. Blackburne & Brown Mortgage Co v Ziomek, 264 Mich App 615, 620; 692 NW2d 388 (2004).
III. ANALYSIS
A. JURISDICTION IN MICHIGAN
Plaintiffs first argue on appeal that the Michigan court erred in determining that it lacked subject-matter jurisdiction for the sole reason that Michigan did not have home-state jurisdiction under the UCCJEA, MCL 722.1201. Although plaintiffs are correct that this is not the only basis for jurisdiction, we nevertheless conclude that the Michigan court properly dismissed plaintiffs’ complaint.
The UCCJEA became effective in Michigan on April 1, 2002. Section 201, codified in Michigan as MCL 722.1201, sets forth the basic jurisdictional requirement for making an initial custody determination:
(1) Except as otherwise provided in section 204,[ ]1 a court of this state has jurisdiction to make an initial child-custody determination only in the following situations:
(a) This state is the home state[ ] of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
(b) A court of another state does not have jurisdiction under subdivision (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 207 or 208, and the court finds both of the following:
(1) The child and the child’s parents, or the child and at least 1 parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(ii) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
(c) All courts having jurisdiction under subdivision (a) or (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under section 207 or 208.
(d) No court of another state would have jurisdiction under subdivision (a), (b), or (c).
(2) Subsection (1) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child-custody determination.
As plaintiffs concede, the Michigan court correctly determined that Michigan was not the child’s home state on the date of the commencement of the Michigan proceeding, nor had Michigan been the child’s home state within six months before the commencement of the proceeding. The Michigan proceeding was commenced on August 22, 2007, when plaintiffs filed a complaint in the Michigan court. The child lived in Texas from the time she was born on August 3, 2006, until May 20, 2007, when she moved to Michigan with her father. Accordingly, Texas was the child’s home state. MCL 722.1201(l)(a). When the Michigan proceeding was commenced, the child had only lived in Michigan for approximately three months and had not lived in Michigan previously.
Plaintiffs nonetheless argue that the Michigan court erred by ruling that Michigan lacked subject-matter jurisdiction to make a custody determination solely because the Michigan court did not have home-state jurisdiction. Home-state jurisdiction under MCL 722.1201(l)(a) is not the only jurisdictional basis for making an initial custody determination. Plaintiffs argue that MCL 722.1201(l)(b) provides an alternative ground to support a finding of jurisdiction in Michigan. Plaintiffs refer to this jurisdictional ground as “significant connection” jurisdiction. Plaintiffs’ argument is without legal merit.
Jurisdiction cannot be premised on the family’s significant connection to Michigan unless the court first establishes: (1) there is no “home state” as that term is used in MCL 722.1201(l)(a), or (2) “a court of the home state of the child has declined to exercise jurisdiction ....” MCL 722.1201(l)(b). Neither of the above circumstances exists in the present case. Texas is the child’s home state and the Texas court did not decline to exercise jurisdiction. Thus, Michigan does not have significant connection jurisdiction over this matter.
B. DISMISSAL AFTER CONCLUDING TEXAS HAD JURISDICTION IN SUBSTANTIAL CONFORMITY WITH THE UCCJEA
Plaintiffs’ second argument on appeal is that the Michigan court erred in determining that, because the Texas court had jurisdiction substantially in conformity with the UCCJEA, it was required to dismiss plaintiffs’ complaint. We again find no merit to plaintiffs’ argument.
MCL 722.1206, which governs simultaneous proceedings, provides in pertinent part:
(1) Except as otherwise provided in section 204, a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement[ ] of the proceeding, a child-custody proceeding has heen commenced in a court of another state having jurisdiction substantially in conformity with this act, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section 207.
(2) Except as otherwise provided in section 204, before hearing a child-custody proceeding, a court of this state shall examine the court documents and other information supplied by the parties as required by section 209. If the court determines that, at the time of the commencement of the proceeding, a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this act, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this act does not determine that a court of this state is a more appropriate forum, the court of this state shall dismiss the child-custody proceeding.
Thus, because a child-custody proceeding had been commenced in Texas at the time of the commencement of the Michigan proceeding on August 22, 2007, the issue is whether Texas had “jurisdiction substantially in conformity with this act.” MCL 722.1206(1). When Jeffrey Salter filed his petition in the Texas court on March 21, 2007, the child had lived with one or both plaintiffs in defendants’ home since she was born on August 3, 2006 — more than six months. Accordingly, Texas was the child’s home state on the date of the commencement of the proceeding and therefore had subject-matter jurisdiction under section 201 of the UCCJEA.
Plaintiffs also argue that the Michigan court was required to find that the temporary restraining order of the Texas court violated §§ 106 and 205(1) of the UCCJEA. Section 106 provides:
A child-custody determination made by a court of this State that had jurisdiction under this [Act] binds all persons who have been served in accordance with the laws of this State or notified in accordance with Section 108 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified. [Brackets in original.]
Section 205(a) provides that, “[b]efore a child-custody determination is made under this [Act], notice and an opportunity to be heard in accordance with the standards of Section 108 must be given to each person entitled to notice under the law of this State. ...” Subsection b makes clear that “[t]his [Act] does not govern the enforceability of a child-custody determination made without notice or an opportunity to be heard.” Under § 108(a), “[n]otice required for the exercise of jurisdiction when a person is outside this State may be given in a manner prescribed by the law of this State for service of process or by the law of the State in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.” Section 108 “authorizes notice and proof of service to be made by any method allowed by either the State which issues the notice or the State where the notice is received.” Comment, UCCJEA § 108.
The Texas court issued temporary restraining orders on March 21, 2007, and July 25, 2007, but these were not “child-custody determinations.” “ ‘Child-custody determination’ means a judgment, decree, or other order of a court providing for legal custody, physical custody, or visitation with respect to a child.” UCCJEA § 102(3); see also MCL 722.1102(c). Although the definition of “child-custody determination” under this provision does include a temporary custody order, the temporary restraining orders entered by the Texas court on March 21, 2007, and July 25, 2007, “did not provid[e] for legal custody, physical custody, or parenting time.” They merely ordered the parties to appear at later hearings to determine whether provisions for temporary custody should be made while the custody case was pending.
Also, it appears that plaintiffs waived the issue of personal jurisdiction, and, accordingly, any due-process objection based on inadequate service of process. Service of process is an issue of personal jurisdiction, objections to which may be waived by filing a general appearance. See Seals v Upper Trinity Regional Water Dist, 145 SW3d 291, 296 (Tex App, 2004) (“Without notice via the required service of citation or a waiver thereof, nothing short of a general appearance will confer personal jurisdiction upon the trial court.”). “A general appearance is normally in the form of an answer to the claims made in the suit.” Id. See also Rule 121 of the Texas Rules of Civil Procedure (“An answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him.”). Although the parties stipulated that Rochelle Nash was never served properly in connection with Jeffrey Salter’s original petition in the Texas court, defendants allegedly personally served plaintiffs when they filed their petition in intervention on July 23, 2007. They claimed that plaintiffs were served, on July 30, 2007, with the petition, the temporary orders, and the order to appear. Defendants ¿so claim that plaintiffs filed a response to defendants’ petition in intervention, which they have attached to their brief on appeal as Exhibit 2. This document bears a filing date of August 21, 2007. This is not part of the lower-court file; however, plaintiffs do not contest its authenticity. Thus, by their general appearance in the form of their response to defendants’ petition in intervention, plaintiffs waived the issue of personal jurisdiction, and, accordingly, any due-process objection based on inadequate service of process.
Plaintiffs also argue that defendants’ petition in intervention failed to meet several pleading requirements of § 209 of the UCCJEA, and, accordingly, that “the Texas court failed to conduct the proceeding in substantial conformity with the UCCJEA.” Section 209(a), as codified in Texas, provides, in part:
[E]ach party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(1) has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child-custody determination, if any;
(2) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(3) knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
Jeffrey Salter’s initial petition in the Texas court contains only the child’s county of residence. Further, the petition states only that “[n]o court has continuing jurisdiction of this suit or of the child [sic] the subject of this suit” and that “[t]here are no court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships affecting the child [sic] the subject of this suit.” The record does not reflect that there is an affidavit included with this petition, and it is not clear whether an affidavit was filed with the petition in the Texas court. Defendants’ petition in intervention contains exactly the same information, and, again, it is not clear whether an affidavit was also filed.
Nevertheless, the Texas court was not required, under § 209 of the UCCJEA, to take any action as a result of the deficiency of the parties’ pleadings. Under subsection b, a court “may” stay the proceedings if the information set forth in subsection a is not provided. There is nothing in the language of the provisions of the UCCJEA cited by plaintiffs to indicate that the inadequacy of the pleadings under § 209 deprived the Texas court of subject-matter jurisdiction, and that the Michigan court therefore erred in declining to exercise jurisdiction on this basis.
C. DEFENDANTS’ INTERVENTION IN THE TEXAS COURT PROCEEDINGS
Plaintiffs’ third argument on appeal is that defendants could not validly intervene in the custody action commenced by Jeffrey Salter and that the date of the commencement of the Texas proceeding could not, therefore, be considered March 21, 2007. We disagree.
Jeffrey Salter filed his petition in the Texas court on March 21, 2007. Thus, as already discussed, Texas was the child’s home state on the date of the commencement of the proceeding, UCCJEA § 201, because the child had resided in Texas for at least six months immediately before the commencement of that proceeding. UCCJEA § 102(7). This means that Texas had jurisdiction to make an initial child-custody determination. Plaintiffs argue, however, that July 23, 2007, the date defendants filed their petition in intervention, should be considered the date of the commencement of the proceeding. They base this argument on the claim that process was never served in connection with Jeffrey Salter’s petition (the parties stipulated that Rochelle Nash was not properly served), and “because the matter had become completely moot as of May 21, 2007[,] when Jeffrey Salter and the child arrived at their new residence in Michigan,” and Jeffrey Salter “abandoned” his petition. They therefore argue that defendants’ petition in intervention should be treated as an original filing, and the relevant date for determining whether Texas had jurisdiction was July 23, 2007. Because plaintiffs cite no legal authority that compels the conclusion that the Michigan court was required or permitted to disregard the date of the initial filing, they have abandoned this issue. See Houghton v Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003) (“An appellant may not. . . give issues cursory treatment with little or no citation of supporting authority. ... [FJailure to properly address the merits of [the appellant’s] assertion of error constitutes abandonment of the issue.”).
Plaintiffs essentially ask this Court to determine that the Texas court should have dismissed Jeffrey Salter’s petition as moot, or otherwise disregarded it for purposes of determining the date of the commencement of the Texas proceeding. However, this Court’s role in this appeal is not to consider the propriety of the Texas proceedings under Texas law. It is simply to determine whether the Michigan court properly declined to exercise jurisdiction to determine the custody issue between the parties. The only relevance of plaintiffs’ arguments in connection with this issue to the questions before the Michigan court below and this Court on appeal is as they pertain to § 206 of the UCCJEA: the Michigan court was not permitted to exercise its jurisdiction if, at the time of the commencement of the proceeding, a child-custody proceeding had been commenced in a court of another state having jurisdiction substantially in conformity with this act. For purposes of this inquiry, the Texas proceeding was commenced when Jeffrey Salter filed his petition on March 21, 2007. “ ‘Commencement’ means the filing of the first pleading in a proceeding.’ ” UCCJEA § 102(5). Thus, a proceeding had been commenced within the meaning of MCL 722.1206(1) at the time plaintiffs filed their complaint in the Michigan court, and, on March 21, 2007, Texas was the child’s home state and Texas therefore had jurisdiction to make an initial custody determination under § 201 of the UCCJEA. Accordingly, the Michigan court was not permitted to exercise jurisdiction.
D. PLAINTIFFS’ REMAINING ISSUES
Plaintiffs’ fourth argument on appeal is that the Texas court did not have “extended home state jurisdiction” or “significant connection” jurisdiction under the UCCJEA. Because we conclude, as discussed earlier, that the Texas court had jurisdiction substantially in conformity with § 206 of the UCCJEA, because it was the child’s home on the date of the commencement of the Texas proceeding, we need not address this argument.
Plaintiffs’ fifth argument on appeal is that the Texas court lacked jurisdiction because defendants did not have standing to intervene in Jeffrey Salter’s petition for custody. We disagree.
Although the Full Faith and Credit Clause, in addition to § 303 of the UCCJEA and 28 USC 1738A, requires recognition of sister-state judgments, the con stitution does not compel Michigan courts to recognize such judgments where the issuing court lacked jurisdiction over the subject matter or the parties. Blackburne, supra at 620-621; 28 USC 1738A(a) and (c). “[Cjollateral attack may be made in the courts of this state by showing that the judgment sought to be enforced was void for want of jurisdiction in the court which issued it.” Blackburne, supra at 620-621 (quotation marks and citation omitted). Thus, if plaintiffs can demonstrate that the Texas court lacked personal or subject-matter jurisdiction over this matter, its child-custody order is not entitled to full faith and credit by the courts of this state.
“Standing, as a necessary component of a court’s subject-matter jurisdiction, is a constitutional prerequisite to maintaining a suit under Texas law.” In re CMC, 192 SW3d 866, 869 (Tex App, 2006). “If a party lacks standing, a court lacks subject-matter jurisdiction to hear a case.” Id. Under Texas law, grandparents do not generally have standing to file an original suit requesting managing conservatorship. Tex Fam Code Ann § 102.004(a). However, under certain circumstances, a Texas court may grant a grandparent leave to intervene. Section 102.004(b) of the Texas Family Code permits a court to grant a grandparent leave to intervene in a pending, properly commenced suit where “there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.”
In this case, defendants, in their July 23, 2007, petition in intervention, alleged as follows:
Conservatorship
It is in the best interest of the child that Intervenors be appointed joint managing conservators of the child. Further, the appointment of the parents as joint managing conservators would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.
While neither the temporary restraining order issued by the Texas court following defendants’ filing of their petition in intervention, nor its October 1, 2007, order granting defendants temporary custody, explicitly addresses the issue of defendants’ standing to intervene, there is no basis on which this Court can conclude that the Texas court erred in allowing defendants to intervene because no record of the Texas proceedings has been provided. It is therefore not clear whether there was evidence to support a finding that “appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.” Tex Fam Code Ann § 102.004(b). Accordingly, plaintiffs have not shown that the judgment of the Texas court “was void for want of jurisdiction.” Blackburne, supra at 620-621.
Plaintiffs’ final argument on appeal is that they were denied their due-process rights under the Fourteenth Amendment by virtue of the proceedings in the Texas court and that court’s temporary custody order. We disagree.
Plaintiffs allege that the temporary order of the Texas court violated their due-process rights under the Fourteenth Amendment because “competent evidence was not presented to demonstrate that both parents were unfit and [to] overcome the presumption that the parent of the child is fit to raise the child” at the hearing on September 24, 2007, and they were denied the presumption that they were fit parents. They also argue that the Texas court deprived them of custody of the child on the basis of the “lone allegation” that “Mppointment of the parents as joint managing conservators would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development,” which “did not inform Plaintiffs as to what charges they would have to defend at the hearing on temporary custody.”
As noted by the Michigan Supreme Court, the United States Supreme Court has recognized that parents have a “fundamental right” to make decisions concerning the upbringing of their children and that these decisions are entitled to deference. DeRose v DeRose, 469 Mich 320, 331-332; 666 NW2d 636 (2003), citing Troxel v Granville, 530 US 57, 66, 75, 80; 120 S Ct 2054; 147 L Ed 2d 49 (2000). However, even assuming that it is appropriate for this Court to consider whether the Texas court denied a presumption to which they were constitutionally entitled or rendered its decision without “competent evidence,” we are unable to do so because plaintiffs have not provided a transcript of the Texas proceedings.
Plaintiffs also argue that, because defendants “did not file the case under the UCCJEA,” they “did not give [p]laintiffs customary notice of their right to make application to appear by telephone or other electronic means pursuant to Section 111 of the UCCJEA,[ ] MCL 722.1111,” and, because plaintiffs lived 1,280 miles from the Texas court and could not afford to travel to Texas or hire a Texas attorney, they were effectively denied the opportunity for a hearing. While it is clear that this custody dispute is governed by the UCCJEA, plaintiffs cite no authority for the proposition that defendants were required to “file the case under the UCCJEA” (emphasis added), or articulate precisely what they mean by that, and although § 209 of the UCCJEA contains certain pleading requirements, the remedy for lack of such information in the pleadings is a stay of the proceedings, either upon motion of a party or the court. UCCJEA § 209(b).
Under § 108(a) of the UCCJEA, plaintiffs could properly be given notice under either Michigan or Texas rules for service of process. MCR 2.119(C)(1)(a) provides that, “[u]nless a different period is set by these rules or by the court for good cause, a written motion (other than one that may be heard ex parte), notice of the hearing on the motion, and any supporting brief or affidavits must be served ... at least 9 days before the time set for the hearing, if served by mail.” Under MCR 2.107(C) service on a party may be made by mail, and “[s]ervice by mail is complete at the time of mailing.” Given plaintiffs’ admission, in their brief on appeal, that they received notice of the September 24, 2007, hearing by mail on September 7, 2007, there are no grounds to conclude that they did not receive proper notice under Michigan law.
Affirmed.
Section 204, MCL 722.1204, provides for temporary emergency jurisdiction in a court of this state “if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” This provision is not relevant here because plaintiffs made no such allegation in their complaint.
“ ‘Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding.” MCL 722.1102(g).
“ ‘Commencement’ means the filing of the first pleading in a proceeding.” MCL 722.1102(e).
Tex Fam Code Ann § 152.201(a) is the similar Texas provision.
The Texas court actually entered two temporary restraining orders, one on March 21, 2007, following Jeffrey Salter’s filing of his petition, and one on July 25, 2007, following defendants’ filing of their motion to intervene. Plaintiffs do not specify whether they are referring here to one or both temporary restraining orders.
MCL 722.1106 is the similar Michigan provision.
MCL 722.1205(1) is the similar Michigan provision.
Under § 201 of the UCCJEA, a state has “extended home state jurisdiction” where it “was the home state of the child within six months before the commencement of the proceeding and child is absent from this State but a parent or person acting as a parent continues to live in this State.” UCCJEA § 201(a)(1); Comment, § 201. A state has “significant connection” jurisdiction where no other state has home state or extended home-state jurisdiction, or “a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum,” and “the child and the child’s parents, or the child and at least one parent or person acting as a parent, have a significant connection with this State other than mere physical presence,” and, “substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships.” UCCJEA § 201(a)(2).
Section 111 of the UCCJEA provides:
(a) In addition to other procedures available to a party, a party to a child-custody proceeding may offer testimony of witnesses who are located in another State, including testimony of the parties and the child, by deposition or other means allowable in this State for testimony taken in another State. The court on its own motion may order that the testimony of a person be taken in another State and may prescribe the manner in which and the terms upon which the testimony is taken.
(b) A court of this State may permit an individual residing in another State to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that State. A court of this State shall cooperate with courts of other States in designating an appropriate location for the deposition or testimony.
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GLEICHER, J.
Plaintiff Zaremba Equipment, Inc., commenced this insurance coverage lawsuit after a fire destroyed its premises. A jury awarded plaintiff $2,353,778, exclusive of costs, attorney fees, interest, and case evaluation sanctions. We affirm in part, reverse in part, vacate in part, and remand this case for further proceedings.
I. UNDERLYING FACTS AND PROCEEDINGS
On February 21, 2003, a fire consumed the primary building occupied by plaintiff, a family-owned business that sells and services agricultural equipment, commercial vehicles, and seasonal items, such as snow blowers and lawn mowers. Defendant Harco National Insurance Company sold plaintiff the insurance policy at issue in this case, which took effect on February 1, 2003, and constituted plaintiffs seventeenth consecutive Harco policy. Defendant Patrick Musall, Harco’s agent, took plaintiffs order for the most recent commercial insurance policy considered here.
Plaintiff filed suit seeking to recover (1) damages for breach of the commercial-insurance contract, (2) penalty interest pursuant to MCL 500.2006, and (3) damages for defendants’ failure to provide plaintiff with sufficient “replacement cost insurance coverage” of plaintiffs business building and its contents. The primary issues on appeal involve the coverage of the building and its contents. The 2003-2004 policy stated limits of $525,000 for the building, and $700,000 for its contents. After the fire, plaintiff learned that it would cost $1,192,000 to replace the building.
Plaintiffs complaint alleged that at an unspecified time before the fire, it informed defendants that “it wanted to be fully insured so it could rebuild and replace its property in the event of a complete loss.” According to the complaint, Musall represented that Harco could issue a policy for “replacement cost insurance coverage” adequate to rebuild plaintiffs building and replace its contents. The complaint additionally alleged that Harco’s failure to provide replacement cost coverage as promised constituted fraud and innocent misrepresentation. The complaint also pleaded a promissory estoppel claim and contained counts entitled “Breach of Fiduciary Duty,” “Breach of Duty to Advise,” and “Negligence,” all similarly premised on Mus-all’s inaccurate representation concerning the sufficiency of the promised insurance coverage. The negligence count set forth seven duties allegedly breached by Musall, including failures to accurately advise plaintiff and to “accurately represent the nature and extent” of the building and contents coverage.
Defendants moved for partial summary disposition under MCR 2.116(C)(8), arguing that pursuant to Harts v Farmers Ins Exch, 461 Mich 1; 597 NW2d 47 (1999), Musall owed plaintiff no duty to advise it regarding the adequacy of the insurance it requested and, consequently, the complaint failed to state any claims other than those for breach of contract and recovery of penalty interest. Defendants explained that plaintiffs complaint lacked specific allegations establishing the existence of a special relationship between plaintiff and Musall and that in the absence of any special relationship, Musall owed plaintiff no duty other than to provide it the insurance it sought. Defendants withdrew this motion after plaintiff filed an amended complaint alleging that Musall had misrepresented the “nature and extent of [plaintiffs] coverage . .. .” The amended complaint asserted that Musall’s misrepresentations gave rise to a “special relationship” between the parties and imposed on defendants the duty to “accurately advise [plaintiff] about the coverage provided” under its policy.
Shortly before the scheduled trial date, defendants filed motions in limine seeking to prohibit the introduction at trial of (1) communications between plaintiffs attorneys and Ed Whalen, Harco’s adjuster, (2) testimony that the Harco policy was “too long or too difficult to read,” and (3) any opinions regarding “adjusting” offered “by anyone other than a licensed adjuster.” The trial court denied the motions in limine, and the case proceeded to trial.
The evidence revealed that plaintiffs Harco policies for 2002-2003 and 2003-2004 stated a policy limit of $525,000 on plaintiffs building and shared identical language describing the building and contents coverage:
C. Limits of Insurance
The most we will pay for loss or damage in any one occurrence is the applicable Limit of Insurance shown in the Declarations.
G. Optional Coverages
If shown as applicable in the Declarations, the following Optional Coverages apply separately to each item.
3. Replacement Cost
e. We will not pay more for loss or damage on a replacement cost basis than the least of (1), (2) or (3), subject to f. below:
(1) The Limit of Insurance applicable to the lost or damaged property;
(2) The cost to replace the lost or damaged property with other property:
(a) Of comparable material and quality; and
(b) Used for the same purpose; or
(3) The amount actually spent that is necessary to repair or replace the lost or damaged property.
If a building is rebuilt at a new premises, the cost described in e.(2) above is limited to the cost which would have been incurred if the building had been rebuilt at the original premises.
f. The cost of repair or replacement does not include the increased cost attributable to enforcement of any ordinance or law regulating the construction, use or repair of any property.
Musall testified that since 1998 or 1999 he had met with Jimmy Zaremba, plaintiffs business manager, at least twice a year to discuss plaintiffs insurance needs, Harco’s available coverages, and potential policy limits. Musall admitted that at some point before plaintiff accepted Harco’s 2002-2003 insurance proposal, Jimmy presented a “Customgard John Deere Insurance Proposal” prepared for plaintiff. The Deere insurance proposal included a “Building Coverage” limit of $450,000 and identified an applicable “Extended Recovery Endorsement” that included “Guaranteed Replacement Cost.” Musall conceded that Jimmy had asked him to “meet or beat” the Deere proposal and expressed a desire “to be fully insured.” Musall utilized a software program called “Marshall & Swift” to prepare a “cost estimate” for reconstructing plaintiffs building, which calculated a building value of $494,449. According to Jimmy, Musall represented that Marshall & Swift was “the leader in the industry, and this is what insurance agents use all the time to come up with evaluations on a building.” Although Musall did not recall telling Jimmy about the Marshall & Swift estimate, he admitted that after its preparation, plaintiff increased its building coverage limit to $525,000.
Musall also conceded that he made specific recommendations in response to Jimmy’s request that plaintiff be “fully insured.” He admitted that he would have recommended more coverage if he had known that it would cost $1,192,000 to replace the building because the “intent was there” to insure plaintiff “for the cost of replacing the building.” Musall further explained that if Jimmy had asked for $1.5 million of building coverage, Musall would have advised him that “I didn’t feel he needed that much coverage.”
Jimmy recalled that in July 2001 a car had run into a nearby restaurant, killing some customers. Jimmy heard that the restaurant owner “had a holy nightmare” with his insurance company and realized that if something happened to plaintiffs building, zoning issues would preclude rebuilding in the same location. At about the same time, Jimmy learned of Deere’s “guaranteed replacement coverage” and consulted Musall to discuss the adequacy of plaintiffs coverage and to communicate his desire that plaintiff be “fully insured.” Jimmy asked Musall to compare plaintiffs 2001 Harco coverage, which included an 80 percent coinsurance provision that obligated plaintiff to cover 20 percent of its own insured losses, with the Deere proposal. According to Jimmy, Musall represented that for $500 less than the Deere quotation, Harco would provide a building policy limit of $525,000 and that “with the replacement costs, we would be fully insured.”
On April 18, 2002, Jimmy signed a two-year “Harco Dealer Package Application,” which included a “Property Limits Schedule.” The schedule described limits of $525,000 for the building and eliminated coinsurance. On the same schedule, Musall wrote, “All are agreed value,” and checked a box indicating that the coverage was based on “replacement” value. Jimmy admitted that all of Musall’s representations regarding the adequacy of plaintiffs coverage, including the Deere and appraisal discussions, concerned the 2002-2003 policy issued the year before the policy covering the fire loss.
On January 10, 2003, Jimmy met with Musall and accepted Harco’s insurance proposal for the policy year beginning February 1, 2003. The parties agreed that neither Musall nor Harco delivered the 2003 policy to plaintiff before the February 21, 2003, fire. Jimmy conceded that he had not read any of the previous Harco policies, the two-year coverage application that he signed in 2002, or the renewal application signed in 2003.
The jury found for plaintiff on all claims and awarded damages exactly as itemized by plaintiffs accounting expert, including an award of $496,185 for breach of contract, $258,554 in penalty interest, and $42,481 for “recovery of insurance proceeds.” For plaintiffs building and contents, the jury awarded $1,556,558 under three theories separately entitled on the verdict form: negligence, fraud or innocent misrepresentation, and promissory estoppel. The trial court denied defendants’ motions for judgment notwithstanding the verdict and a new trial.
On appeal, defendants raise several challenges to the jury’s award relating to the building and contents coverage. We now address individually each theory supporting those aspects of the jury’s award.
II. CHALLENGES TO THE NEGLIGENCE VERDICT
A. COMPARATIVE NEGLIGENCE AND PLAINTIFF’S DUTY TO READ ITS INSURANCE POLICY
Defendants challenge the trial court’s refusal to instruct the jury that plaintiff had a duty to read its insurance policies. Although plaintiff did not receive a copy of the 2003-2004 Harco policy before the fire, defendants insist that plaintiff owed a duty to read its 2002-2003 insurance policy and the 2003-2004 insurance quotation it possessed, both of which set forth identical and specific limitations of building coverage. According to defendants, the earlier policy and the current quotation language expressly contradict any notion that the policy provided “full replacement value” coverage. Defendants maintain that plaintiffs admitted failure to read the prior policy and the 2003-2004 quotation constituted comparative negligence and was a proximate cause of plaintiffs damages. Defendants reason that the trial court thus erred by failing to instruct the jury regarding plaintiffs duty to read its policy and by refusing to permit the jury to assess comparative fault. Plaintiff responds that it cannot be held to a duty to read the 2003-2004 policy that it did not yet possess and contends that Harco cannot “hide behind” policy language when a special relationship existed between the insurer and the insured.
This Court reviews de novo the content of a trial court’s jury instructions. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). “In doing so, we examine the jury instructions as a whole to determine whether there is error requiring reversal. The instructions should include all the elements of the plaintiffs claims and should not omit material issues, defenses, or theories if the evidence supports them.” Id. Whether a duty exists also involves a question of law, which we consider de novo. Dyer v Trachtman, 470 Mich 45, 49; 679 NW2d 311 (2004).
At trial, plaintiff premised its negligence claims on Jimmy Zaremba’s meetings with Musall in 2002, in which they discussed plaintiffs interest in “full, replacement coverage” for its building, the John Deere quotation, and the Marshall & Swift “appraisal.” Plaintiff advanced three theories of liability arising from the 2002 encounters: (1) Musall negligently appraised the value of plaintiffs building as $496,000, which represented less than half the building’s actual replacement value, (2) Musall negligently failed to procure the requested replacement-value coverage so that plaintiff would be “fully insured,” and (3) Musall negligently failed to advise plaintiff that the coverage contained in the Harco policy did not provide guaranteed “full replacement value” in the event of a catastrophic loss, but instead required Harco to pay only a defined limit of $525,000.
The parties agreed that Harts controlled plaintiffs ability to prosecute its negligence claims. In Harts, our Supreme Court considered whether an insurance agent owes a duty to advise an insured regarding the adequacy of coverage. Harts, 461 Mich at 2. “[U]nder the common law, an insurance agent whose principal is the insurance company owes no duty to advise a potential insured about any coverage” because the agent’s job consists merely of “presenting] the product of his principal and tak[ing] such orders as can be secured from those who want to purchase the coverage offered.” Id. at 8. In a footnote, the Supreme Court observed: “This limited role for the agent may seem unusually narrow, but it is well to recall that this is consistent with an insured’s obligation to read the insurance policy and raise questions concerning coverage within a reasonable time after the policy has been issued. ” Id. at 8 n 4, citing Parmet Homes, Inc v Republic Ins Co, 111 Mich App 140, 145; 314 NW2d 453 (1981).
Notwithstanding the general no-duty-to-advise rule, the Supreme Court concluded in Harts that “when an event occurs that alters the nature of the relationship between the agent and the insured,” a special relationship may result, creating a duty on the part of the agent to advise an insured in some respect regarding insurance issues. Harts, 461 Mich at 10. The change in the agent-insured relationship becomes manifest when
(1) the agent misrepresents the nature or extent of the coverage offered or provided, (2) an ambiguous request is made that requires a clarification, (3) an inquiry is made that may require advice and the agent, though he need not, gives advice that is inaccurate, or (4) the agent assumes an additional duty by either express agreement with or promise to the insured. [Id. at 10-11.][ ]
When a special relationship exists, an agent assumes a duty to advise the insured regarding the adequacy of insurance coverage. Id. at 10-11.
At trial, defendants conceded that the jury could properly decide whether Musall had adequately advised plaintiff. A supplemental jury instruction modeled on the Harts special-relationship criteria, given without objection, began: “[Generally, an insurance agent has no duty to advise a potential insured about any insurance coverage. However, the existence of a special relationship between an agent and his insured will give rise to a duty to advise.” The instruction continued by quoting the four Harts criteria for a special relationship, and concluded: “If you find that a special relationship existed between Plaintiff and Defendant Musall because of one or more of the four circumstances exists, then the law places upon Mr. Musall a duty to advise Plaintiff.”
Although the jury determined that Musall and plaintiff shared a special relationship, we reject plaintiffs contention that this finding, standing alone, eliminated any claim of comparative fault associated with or arising from plaintiffs duty to read its insurance documents. Under Harts, an insurance agent may create a special relationship by engaging in conduct inconsistent with merely taking a customer’s order. But we view as simply illogical the suggestion that an agent’s decision to undertake additional responsibilities on behalf of an insured immunizes the insured from the consequences of its own negligence. The negligence of one party does not eliminate the legal requirement that an opposing party use ordinary care. See Mi Civ JI 10.04.
Further, the law applied in Michigan leaves no room to doubt that as a general rule, an insured must read his or her insurance policy. As the Supreme Court summarized in Farm Bureau Mut Ins Co of Michigan v Nikkel, 460 Mich 558, 567; 596 NW2d 915 (1999): “ This court has many times held that one who signs a contract will not be heard to say, when enforcement is sought, that he did not read it, or that he supposed it was different in its terms.’ ” (Citation omitted.) In Casey v Auto-Owners Ins Co, 273 Mich App 388, 394-395; 729 NW2d 277 (2006), this Court similarly observed:
It is well established that an insured is obligated to read his or her insurance policy and raise any questions about the coverage within a reasonable time after the policy is issued. Consistent with this obligation, if the insured has not read the policy, he or she is nevertheless charged with knowledge of the terms and conditions of the insurance policy.[ ]
In Harts, our Supreme Court specifically and favorably referred to this Court’s decision in Parmet Homes, in support of the general rule that an agent has no responsibility to advise a customer regarding coverage. In Parmet Homes, the plaintiff filed suit seeking to recover fire loss benefits under a builder’s risk policy. Shortly before the plaintiffs prior policy expired, the defendant, an independent insurance agency, had switched insurance companies to “better meet the needs of plaintiff.” Some evidence demonstrated that the agent had not consulted the plaintiff about the change, but had simply mailed it a copy of the new policy with premium invoices bearing the new insurance company’s name. While the plaintiffs former policy required reports of construction starts every 90 days, the new policy required notice of construction starts every 30 days. Parmet Homes, 111 Mich App at 143. The defendant insurance company denied coverage for a fire loss, relying on the 30-day notice provision. Id. at 143-144.
The plaintiff, insisting that it had not known that the defendant agent had changed insurers or that a new notice requirement applied, brought a negligence action against the agent. The plaintiff admitted, however, that it had never read the new policy. Id. at 144. The trial court instructed the jury as follows:
“Generally,. .. the law in Michigan places a duty upon an insured to read his insurance policy. It is for you to decide what a reasonably careful person would, or would not do under the circumstances which you find existed in this case. If you find that Parmet Homes acted reasonably in believing the policy to be a renewal of the [Insurance Company of North America] policy, then Parmet Homes does not have a duty to read the policy. If you find that a reasonably careful person would have read his policy under the circumstances which you find existed in this case, you may consider this with respect to the plaintiffs conduct in considering contributory negligence.” [Id. at 144-145.]
The defendants objected to the instruction excusing the plaintiff from reading the policy. Id. at 145. This Court approved the instruction, however, because the “plaintiff presented evidence that it was led to believe” that the new policy merely renewed the prior one, explaining that no duty to read exists when “a policy is renewed without actual notice to the insured that the policy has been altered.” Id.
In Holton v A+ Ins Assoc, Inc, 255 Mich App 318, 319; 661 NW2d 248 (2003), this Court addressed the application of comparative fault principles in a case involving an allegation that an insurance agent negligently failed to secure the coverage requested. The defendant insurer in Holton argued that the plaintiffs’ comparative negligence caused the fire that ultimately led to an insurance loss. Id. at 320. This Court framed the issue as “whether a defendant insurer is entitled to an allocation of fault for conduct in an underlying property loss, when a plaintiff seeks recovery for a shortfall in insurance coverage on the basis of the insurer’s negligence in procuring insurance.” Id. at 321. The Court held that “the provisions for comparative negligence” generally apply in a tort-based action brought against an insurance agent, but that the plaintiffs’ alleged negligence in starting the fire had no relevance to a comparative fault analysis, given that the “[defendants have proffered no evidence showing that plaintiffs’ or the contractor’s alleged negligence in causing the fire is a factor in whether the resulting property damage would be covered under plaintiffs’ homeowner’s insurance, which defendants allegedly failed to provide.” Id. at 323-325. Notably, the Holton Court specifically cited MCL 600.2957(1) and MCL 600.6304(1) as authority for its conclusion that the plaintiffs’ action was “tort-based.” Id. at 323-324.
Pursuant to MCL 600.6304, a jury must consider comparative fault if any fault is attributable to the plaintiff. 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 [MCL 600.2925d], 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 (l)(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.[ ]
The statute defines “fault” as including “an act, omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.” MCL 600.6304(8).
The doctrine of comparative fault requires that every actor exercise reasonable care. Hierta v Gen Motors Corp (On Rehearing), 196 Mich App 20, 23; 492 NW2d 738 (1992). “The general standard of care for purposes of comparative negligence, while differing in perspective, is theoretically indistinguishable from the applicable standard for determining liability in common-law negligence: the standard of conduct to which one must conform for his own protection is that of ‘a reasonable [person] under like circumstances.’ ” Lowe v Estate Motors Ltd, 428 Mich 439, 455-456; 410 NW2d 706 (1987) (citation omitted). The question of a plaintiffs negligence for failure to use due care is a question for the jury unless no reasonable minds could differ or the determination involves some ascertainable public policy considerations. Rodriguez v Solar of Michigan, Inc, 191 Mich App 483, 488; 478 NW2d 914 (1991).
Because plaintiffs negligence claims in the instant case are tort-based, we conclude that the plain language of MCL 600.6304 and MCL 600.2957 required the trial court to give defendants’ requested instruction regarding comparative negligence. We additionally conclude that plaintiffs admitted failure to read the policy could qualify as comparative negligence and that the trial court should have permitted the jury to consider whether plaintiff unreasonably failed to read the 2002-2003 policy, the 2002 application, and the 2003-2004 insurance quotation. We now apply these legal principles to plaintiffs liability theories.
Plaintiff alleged that Musall negligently failed to procure the insurance coverage that plaintiff requested: guaranteed replacement-value coverage for its building and contents. According to plaintiff, Musall also neglected to advise plaintiff that the policy purchased contained a defined limit rather than the “full replacement coverage” that plaintiff had specifically requested. Defendants correctly observe that if plaintiff had read its 2002-2003 policy, it would have easily ascertained that regardless of Musall’s representations to the contrary, the policy clearly and unambiguously provided that the “most we will pay for loss or damage in any one occurrence is the applicable Limit of Insurance shown in the Declarations.”
In light of plaintiffs legal duty to read its 2002-2003 insurance policy, a jury could have reasonably concluded that during the months between plaintiffs purchase of the 2002-2003 Harco policy and the February 2003 fire, plaintiff negligently failed to question Musall about its building coverage. Similarly, a jury could have reasonably determined that plaintiff should have discovered that the policy language contradicted Musall’s representations regarding “full” and “guaranteed replacement value” coverage. Furthermore, MCL 600.6304(l)(b) unambiguously requires the finder of fact to assess the percentage of fault attributable to a plaintiff if the plaintiffs fault constituted a proximate cause of the plaintiffs damages. “[UJnder [MCL 600.6304], if a defendant presents evidence that would allow a reasonable person to conclude that a plaintiffs negligence constituted a proximate cause of [the plaintiffs] injury and subsequent damage, the trier of fact must be allowed to consider such evidence in apportion ing fault.” Shinholster v Annapolis Hosp, 471 Mich 540, 552; 685 NW2d 275 (2004). A jury could reasonably conclude that plaintiffs failure to read its 2002-2003 policy qualified as a proximate cause of its failure to obtain clarification regarding the Harco policy limits before the February 2003 fire.
In contrast, plaintiffs liability claims arising from Musall’s negligent appraisal of its building do not logically lend themselves to a comparative negligence analysis. In addition to plaintiffs insufficient coverage claim, plaintiff contended that Musall negligently calculated the replacement value of its building. Plaintiffs policy and the related documents do not contain, however, any information that might have called into question the accuracy of the Marshall & Swift computation or Musall’s allegedly negligent representation that plaintiff could replace its building within the limits of the policy. Thus, under the negligent appraisal theory of liability, plaintiffs own failure to read its insurance documents does not represent a proximate cause of its damages.
Plaintiff submitted all three of its negligence theories to the jury as a single unit, and the jury returned a general verdict finding negligence on defendants’ part. Although our comparative negligence analysis applies to some but not all of plaintiffs negligence claims, we must nevertheless reverse the entire negligence verdict because it is impossible to determine which theories of negligence liability the jury adopted. Tobin v Providence Hosp, 244 Mich App 626, 645; 624 NW2d 548 (2001).
Finally, we reject plaintiffs claim that defendants “waived” a comparative negligence defense in this case by not including it as an affirmative defense in their first responsive pleading. Defendants’ answer to plaintiffs amended complaint included the following affir mative defense: “Plaintiff has a duty to read the insurance policy and raise questions within a reasonable time. It cannot claim it was defrauded if it has the policy in its possession because of its precedent duty. It cannot claim estoppel because it should know what the policy covers.” Defendants included similar language in their initial answer. Defendants also brought at least two motions for summary disposition, asserting that plaintiff had a duty to read its policy, and defendants requested a jury instruction delineating this duty, as well as an instruction regarding comparative negligence. Defendants’ failure to specifically label the duty to read defense as a comparative negligence defense should not prevent them from defending on that basis, as they attempted to do throughout the proceedings. Meridian Mut Ins Co v Mason-Dixon Lines, Inc (On Remand), 242 Mich App 645, 648; 620 NW2d 310 (2000). Additionally, defendants’ failure to specifically label plaintiffs duty to read the policy as an affirmative defense did not foreclose the trial court from properly instructing the jury regarding comparative fault.
In summary, we hold that when an insurance agent elects to provide advice regarding coverage and policy limits, the agent owes a duty to exercise reasonable care. The insured has a duty to read its insurance policy and to question the agent if concerns about coverage emerge. A jury should consider these corresponding duties in the crucible of comparative negligence.
B. SPECIAL INSTRUCTION 4(c)
Defendants next contend that the trial court erred when it submitted to the jury special instruction 4(c), which described one of Musall’s duties as follows: “The duty to properly procure and place insurance coverage on the Property so that the Policy would meet or exceed all of [plaintiffs] expectations regarding such coverage[.]” Defendants argue that this instruction embodied a “rule of reasonable expectations,” which the Michigan Supreme Court specifically disapproved in Wilkie v Auto-Owners Ins Co, 469 Mich 41, 51-63; 664 NW2d 776 (2003).
The rule of reasonable expectations permits a court to construe an insurance contract in a manner contradicted by its unambiguous terms. As described by Professor Keeton, this rule provides that the “objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.” Keeton, Insurance law rights at variance with policy provisions, 83 Harv L R 961, 967 (1970). In Wilkie, our Supreme Court rejected any notion that the rule of reasonable expectations, even “objectively reasonable ones,” applies in Michigan: “The rule of reasonable expectations clearly has no application to unambiguous contracts. That is, one’s alleged ‘reasonable expectations’ cannot supersede the clear language of a contract.” Wilkie, 469 Mich at 60.
Contrary to defendants’ argument here, the analysis in Wilkie did not require that the trial court eliminate special instruction 4(c). Wilkie applies to the construction of insurance contracts, rather than the duties attendant to the procurement of insurance contracts. The cases overruled in Wilkie, such as Powers v DAIIE, 427 Mich 602; 398 NW2d 411 (1986), also involved the construction of contractual language, rather than a determination whether an agent properly procured the coverage requested by the insured.
An insurance agent owes a duty to procure the insurance coverage requested by an insured. Khalaf v Bankers & Shippers Ins Co, 404 Mich 134, 142-143; 273 NW2d 811 (1978); Haji v Prevention Ins Agency, Inc, 196 Mich App 84, 87; 492 NW2d 460 (1992). “The insured’s agent must strictly follow the insured’s instructions which are clear, explicit, absolute, and unqualified.” 3 Couch, Insurance, 3d, § 46.28, p 46-33. Special jury instruction 4(c) addressed Musall’s duty to procure the coverage plaintiff sought. It did not dictate any manner of construing the words within plaintiffs insurance policy, the issue resolved by our Supreme Court in Wilkie.
Nevertheless, special instruction 4(c) incorrectly stated the law. Musall had no duty to procure coverage that would “meet or exceed all of [plaintiffs] expectations.” Instead, the law only required Musall to procure the coverage actually ordered by plaintiff. Plaintiffs expectations might be relevant to this duty, but no recognized legal authority supports the portion of the instruction given that concerned meeting or exceeding plaintiffs expectations. Therefore, on remand, the court should not give this specific portion of the instruction to the jury.
III. CHALLENGES TO THE FRAUD AND INNOCENT MISREPRESENTATION VERDICTS
Defendants next contend that plaintiffs failure to read the policies eliminates plaintiffs claims for fraud and innocent misrepresentation. In support of this argument, defendants rely principally on Nieves v Bell Industries, Inc, 204 Mich App 459, 464; 517 NW2d 235 (1994), in which this Court observed: “There can be no fraud where a person has the means to determine that a representation is not true.”
To establish a prima facie case of fraud, a plaintiff must prove that (1) the defendant made a material representation, (2) the representation was false, (3) the defendant knew that it was false when it was made, or made it recklessly, without any knowledge of its truth and as a positive assertion, (4) the defendant made the representation with the intention that the plaintiff would act on it, (5) the plaintiff acted in reliance on it, and (6) the plaintiff suffered injury because of that reliance. Hord v Environmental Research Institute of Michigan (After Remand), 463 Mich 399, 404; 617 NW2d 543 (2000). This Court has frequently reiterated that, to sustain a fraud claim, the party claiming fraud must reasonably rely on the material misrepresentation. See Foreman v Foreman, 266 Mich App 132, 141-142; 701 NW2d 167 (2005) (holding that the plaintiff had to “show that any reliance on defendant’s representations was reasonable”); see also Bergen v Baker, 264 Mich App 376, 389; 691 NW2d 770 (2004).
An innocent misrepresentation claim requires proof that (1) the defendant made a material representation, (2) the representation was false, (3) the defendant made it with the intention of inducing reliance by the plaintiff, (4) the plaintiff acted in reliance on the representation, and (5) the plaintiff thereby suffered an injury that benefited the defendant. State-William Partnership v Gale, 169 Mich App 170, 178; 425 NW2d 756 (1988). Reasonable reliance also must exist to support claims of innocent misrepresentation. Novak v Nationwide Mut Ins Co, 235 Mich App 675, 690-691; 599 NW2d 546 (1999).
Defendants argue that because the insurance documents previously provided to plaintiff stated a definite coverage limit of $525,000 applicable to plaintiffs building, plaintiff could not have reasonably relied on Mus-all’s representations in 2001 or 2002 that the policy provided full replacement coverage. We agree that if plaintiff had read the clear and unambiguous 2002 policy language, it would have learned that the policy did not provide unlimited replacement value coverage for the building, but had a defined limit of $525,000. Furthermore, because the record reflects no further discussions between the parties regarding the $525,000 policy limit, see note 2 of this opinion, we agree with defendants that as a matter of law, plaintiff cannot prevail on a fraud or innocent misrepresentation theory premised on Musall’s representations regarding 'the policy limits. Under the circumstances of this case, plaintiff had the means to determine the truth or falsity of Musall’s representations. But because plaintiffs fraud and innocent misrepresentation claims sound in tort, MCL 600.6304 compels the conclusion that a jury must decide whether plaintiffs failure to read the policy constituted a proximate cause of its damages.
However, our resolution of this aspect of plaintiffs fraud and innocent misrepresentation claims does not end our inquiry. As noted previously, plaintiffs fraud and innocent misrepresentation claims also encompassed Musall’s statements regarding the accuracy of the Marshall & Swift computation and whether plaintiff could actually replace its building for $525,000. Neither the policy language nor any documents provided by defendants regarding the policy would have shed light on the accuracy of the Marshall & Swift estimate or Musall’s representation that the $525,000 coverage limit constituted adequate replacement coverage. Therefore, the record could support plaintiffs claims that Jimmy reasonably relied on Musall to accu rately evaluate the cost of replacing the building and also reasonably relied on Musall’s representation that the Marshall & Swift calculation constituted a reasonable assessment of the building’s replacement cost. But because the verdict form did not distinguish between the proper and improper theories of fraud and innocent misrepresentation submitted to the jury, a new trial is required on the remaining fraud and innocent misrepresentation theories. Tobin, 244 Mich App at 645-646.
IV PROMISSORY ESTOPPEL
The elements of a promissory estoppel claim consist of (1) a promise (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of the promisee and (3) that, in fact, produced reliance or forbearance of that nature (4) in circumstances requiring enforcement of the promise if injustice is to be avoided. Booker v Detroit, 251 Mich App 167, 174; 650 NW2d 680 (2002), rev’d in part on other grounds 469 Mich 892 (2003). “ £A promise is a manifestation of intention to act or refrain from acting in a specific way, so made as to justify a promisee in understanding that a commitment has been made.’ ” State Bank of Standish v Curry, 442 Mich 76, 85; 500 NW2d 104 (1993) (citation omitted). The promise must be definite and clear, and the reliance on it must be reasonable. Ypsilanti Twp v Gen Motors Corp, 201 Mich App 128, 134; 506 NW2d 556 (1993). This Court has held that no action for promissory estoppel may he when an oral promise expressly contradicts the language of a binding contract. See Novak, 235 Mich App at 687.
We agree with defendants that the trial court erred by permitting the jury to consider plaintiffs promissory estoppel claim. Plaintiff failed to identify any promises made by Musall beyond those contained in the insur anee policy. Furthermore, Musall’s alleged representations that plaintiff had “full coverage” or “replacement cost coverage” were not promises, but “words of assurance or statements of belief....” State Bank of Standish, 442 Mich at 90. Therefore, on retrial, plaintiff may not submit a promissory estoppel claim to the jury.
V EXPERT TESTIMONY REGARDING MUSALL’S DUTIES
Defendants next assert that the trial court erred by denying their motion for judgment notwithstanding the verdict based on plaintiffs failure to offer expert testimony regarding the standard of care owed by Musall. According to defendants, because Musall was a licensed professional at the time of his actions and omissions relevant to this case, plaintiff could establish the standard of care required only through the introduction of expert testimony provided by a similarly licensed professional. In support of this argument, defendants cite several cases from other jurisdictions and one unpublished Michigan case, Nofar v Eikenberry, unpublished memorandum opinion of the Court of Appeals, issued October 30, 1998 (Docket No. 197231).
This Court reviews de novo a trial court’s decision to deny a motion for judgment notwithstanding the verdict. Attard v Citizens Ins Co of America, 237 Mich App 311, 321; 602 NW2d 633 (1999). The determination whether the nature of a claim involves ordinary negligence or professional negligence is also subject to review de novo. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 419; 684 NW2d 864 (2004).
Aside from the unpublished Nofar memorandum opinion, Michigan’s appellate courts have not consid ered the necessity of expert testimony in cases alleging negligence on the part of an insurance agent. In Nofar, the trial court directed a verdict for the defendants on the negligence claim because the plaintiff failed to present expert testimony regarding an insurance agent’s breach of the standard of care. This Court affirmed, explaining that
[pjlaintiffs failed to present any evidence as to the standard of care applicable to insurance professionals. The complaint alleged that although defendants first bound coverage on the building, they notified plaintiffs prior to the accident that they exceeded their authority, but would try to obtain alternative coverage. The complaint alleged that this conduct was negligent and below the standard of care for professional licensed insurance agents. Where plaintiffs failed to support this allegation with any evidence as to the proper standard of care, the trial court correctly granted a directed verdict as to the negligence count. [Nofar, p 2.]
The Court observed elsewhere in Nofar that “[w]here the lack of professional care is so manifest that it would be within the common knowledge and experience of laypersons, expert testimony is not required.” Id.
In other jurisdictions, a split of authority exists regarding the necessity of expert testimony in insurance agent negligence cases. Generally, the opinions focus on the underlying duty allegedly breached by the agent and evaluate whether the duty inherently involved the exercise of professional skills likely to fall outside the common understanding of lay jurors. For example, Atwater Creamery Co v Western Nat’l Mut Ins Co, 366 NW2d 271 (Minn, 1985), considered a claim that an insurance agent negligently failed to notice an insured’s gap in coverage and to determine whether insurance was available to fill that gap. The plaintiff had not requested that the agent review the coverage, but asserted the existence of an independent duty to do on the basis of their 17-year relationship. Id. at 279. The Minnesota Supreme Court held that the standard of care required of the agent had to be established through expert testimony because the claimed deficiency in his performance centered on the “professional judgment of the agent in the absence of requests for action. ...” Id.
In Humiston Grain Co v Rowley Interstate Transportation Co, Inc, 512 NW2d 573, 575 (Iowa, 1994), the Iowa Supreme Court observed that “[bjecause insurance agents are professionally engaged in transactions ranging from simple to complex, the requirement of expert testimony varies from jurisdiction to jurisdiction depending on the nature of the alleged negligent act.” When an agent fails to procure the coverage requested, expert testimony is generally unnecessary because this circumstance can be “commonly understood by laypersons . . . .” Id. On the other hand, cases involving an “agent’s alleged failure to discern coverage gaps or risks of exposure in more complex business transactions” may necessitate expert testimony. Id. The court ruled in Humiston Grain that expert testimony was required to prove that the defendant agent had overlooked the plaintiffs subrogation rights despite the absence of a specific request for information on this subject. Id. at 575-576.
We agree with the analyses in Atwater Creamery and Humiston Grain that the need for expert testimony in an insurance coverage case should be determined on a case-by-case basis and depends on the nature of the underlying claims of negligence raised against the agent. If the duty alleged to have been breached falls beyond the understanding of the average juror, a trial court may require that the party alleging negligence produce expert testimony supporting the claim. This is entirely consistent with longstanding Michigan caselaw holding that when the claimed negligence involves “ ‘a matter of common knowledge and observation,’ ” no expert testimony is required. Daniel v McNamara, 10 Mich App 299, 308; 159 NW2d 339 (1968) (citation omitted). Indeed, “while expert testimony is the traditional and the preferred method of proving medical malpractice, exceptions to the need for expert testimony have been recognized.” Locke v Pachtman, 446 Mich 216, 230; 521 NW2d 786 (1994).
Plaintiffs negligence claims against Musall included (1) misrepresentation of coverage terms, (2) miscalculation of the building replacement costs, (3) failure to advise plaintiff that the policy did not include “full replacement coverage,” and (4) failure to provide plaintiff with “clear and accurate advice” in response to plaintiffs request for replacement value coverage. We conclude that proof of these allegations does not require expert testimony. The law required Musall to accurately represent the nature and extent of the coverage. Whether he breached this duty constitutes a question of fact that the jury could answer on the basis of the jurors’ common knowledge and ordinary experiences. Similarly, an average juror possesses the capability of deciding whether Musall provided plaintiff with “clear and accurate advice” regarding the replacement value coverage or instead failed to advise plaintiff that its coverage would not suffice to replace its building.
If plaintiff had asserted that Musall’s standard of care required a certain type of appraisal or a referral for a professional appraisal, or any other specific action, expert testimony might be necessary. Here, however, plaintiff alleged that Musall voluntarily elected to perform an appraisal and provided plaintiff with an incorrect building value. Defendants never claimed that the value Musall selected represented the correct cash value of the premises or the replacement value. Instead, defendants argued that the Marshall & Swift figure was only a “cost estimate,” and not an appraisal. Plaintiffs negligence allegations premised on the miscalculated building value may be easily and readily understood by a lay juror; the record evidence reveals that Musall’s miscalculation occurred in part because he applied an incorrect measure of the building’s square footage to the Marshall & Swift calculation. The miscalculation issue thus presented relatively simple questions of fact, rather than questions concerning the scope of standard of care required of Musall. Musall vehemently denied that he used the Marshall & Swift estimate to appraise the building. If the jury had instead believed that Musall intended the Marshall & Swift calculation to serve as an appraisal, expert testimony would not have aided the determination of whether Musall acted negligently.
The dissent argues that “significant questions” regarding Musall’s conduct “fell far outside” a layperson’s knowledge. Post at 51. We reiterate that, in our view, this record contains no such questions. Musall admitted that he undertook the Marshall & Swift calculation to assist plaintiff and claimed that he repeatedly advised Jimmy that the Marshall & Swift value did not constitute an appraisal. Jimmy denied this and testified that Musall vouched for the accuracy and reliability of the Marshall & Swift calculation. The jury believed Jimmy, not Musall. No expert witness could have added anything pertinent to the dispute between the two parties regarding the content of their conversation. Furthermore, the trial court considered defendants’ posttrial claim that expert testimony would have assisted the jury in deciding whether Musall had been negligent and rejected it pursuant to the following logic:
There was ample evidence to support the negligence claim, and... I hate to disparage the man, but I felt it was so obvious that he did an extremely negligent job as an agent. It was so obvious I’m not sure expert testimony would have either, number one, [been] needed or would have added anything that wasn’t so patently obvious. And I don’t know if the transcript will convey that, but it should.
On retrial, however, should the court conclude that expert testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue,” it certainly remains free to permit the testimony, in accordance with MRE 702.
VI. PLAINTIFF’S USE OF LETTERS REGARDING SETTLEMENT
Defendants next contend that the trial court erroneously permitted plaintiff to introduce into evidence “dozens” of presuit letters written by plaintiffs counsel that contained information regarding settlement demands and settlement negotiations. Defendants challenge the letters as constituting hearsay not permitted by any exception to the rule against hearsay and as inadmissible evidence of settlement negotiations under MRE 408.
This Court reviews for an abuse of discretion a trial court’s decision to admit evidence. Barnett v Hidalgo, 478 Mich 151, 158-159; 732 NW2d 472 (2007). The abuse of discretion standard recognizes “ ‘that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.’ ” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006) (citation omitted). 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).
Our review of the letters and their use during the trial reveals that plaintiff employed multiple items of correspondence between the parties to prove that defendants delayed paying claims that were not reasonably in dispute, in violation of MCL 500.2006, and that the violation entitled plaintiff to 12 percent statutory penalty interest. Although the trial court submitted this issue to the jury without objection, the parties later agreed that the court should have decided it. The trial court independently affirmed the jury’s verdict in a separate posttrial order.
The letters referred to ongoing settlement negotiations, the need for additional information to resolve various claims, requests by plaintiff for additional and faster payments, and recapitulated previous events. But MRE 408 provides, in relevant part:
This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Because the rule explicitly contemplates the admissibility of evidence of settlement-related discussions for the purpose of “negativing a contention of undue delay,” it logically follows that evidence of settlement discussions may also qualify as admissible to prove undue delay.
Defendants’ hearsay argument has greater merit. Although plaintiff contends that it did not offer the letters to prove the truth of the matters asserted in them, plaintiffs counsel vigorously argued regarding the substance of the letters during the trial. These arguments, however, related only to plaintiffs claim for penalty interest, and on appeal defendants have not challenged the propriety of the trial court’s entry of that portion of the judgment awarding penalty interest. Consequently, any error attending the introduction of the letters qualifies as harmless. MCR 2.613(A) (“An error in the admission or the exclusion of evidence ... is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.”); MRE 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected ....”).
It appears unlikely that the challenged letters will be relevant on retrial. Hearsay evidence contained in the letters may be offered on retrial for a purpose other than “to prove the truth of the matter asserted” as long as that purpose bears relevance to the underlying claims and defenses of the parties. MRE 401; MRE 801(c). But we cannot envision how, and we find it highly unlikely that, the letters might make the existence of Musall’s negligence, or the existence of fraud or innocent misrepresentation, more probable than these matters would be without the letters in evidence. MRE 401.
VII. PLAINTIFF’S CLAIMS FOR BREACH OF CONTRACT, RECOVERY OF INSURANCE PREMIUMS, AND PENALTY INTEREST
On appeal, defendants have failed to brief any legal challenges to the jury’s awards regarding plaintiffs claims of breach of contract, recovery of insurance premiums, and penalty interest. Because defendants have neglected to brief any issues criticizing the jury’s verdicts on these claims, they have abandoned any legal challenges to these verdicts. Dep’t of Transportation v Initial Transport, Inc, 276 Mich App 318, 334; 740 NW2d 720 (2007), rev’d in part on other grounds 481 Mich 862, 863 (2008). We therefore affirm the judgment entered with regard to the jury awards concerning plaintiffs claims of breach of contract, recovery of insurance premiums, and penalty interest claims.
VIII. SUMMARY
We affirm the judgment in favor of plaintiff regarding its claims of breach of contract, recovery of insurance premiums, and penalty interest. We reverse the judgment in favor of plaintiff on its claims of negligence, fraud, and innocent misrepresentation and remand this case for a new trial of these claims consistent with this opinion. We also reverse and vacate the judgment in favor of plaintiff for promissory estoppel and vacate the trial court’s order granting case evaluation sanctions and prejudgment and postjudgment interest. We do not retain jurisdiction.
BORRELLO, J., concurred.
Although Musall could not remember exactly when Jimmy produced the Deere proposal, Musall opined that he sold plaintiff at least two additional Harco policies after he and Jimmy reviewed and discussed the Deere quotation.
Plaintiffs counsel contended at oral argument that Jimmy and Musall had a separate and distinct conversation regarding replacement-value coverage in January 2003. This argument finds no support in the record.
During a discussion of jury instructions, defense counsel stated: “But I can tell you, since we started, since this has been decided in ’99, Harts runs the show. I mean, that’s the case that says what we can do and can’t do ....”
In a footnote, the Supreme Court suggested that a request for “full coverage” might qualify as “an ambiguous request for coverage” that in certain circumstances could require clarification. Harts, 461 Mich at 11 n 11.
This Court recognized in Casey a limited exception to the insured’s duty to read the policy, which it described as the situation “when the insurer renews the policy but fails to notify the insured of a reduction in coverage.” Casey, 273 Mich App at 395. In that circumstance, the insurer remains bound to the earlier policy and is estopped from denying coverage “on the basis of the discrepancy between the current policy and the prior one that was not brought to the insured’s attention.” Id. That exception does not apply here.
In Holton, this Court did not address the insured’s duty to read the policy.
In MCL 600.2957(1), the Legislature provided:
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 [MCL 600.6304], in direct proportion to the person’s percentage of fault.
We reject plaintiffs contention that the policy lacked clarity or harbored ambiguity. On the contrary, the policy clearly stated a coverage limitation of $525,000. See Wilkie v Auto-Owners Ins Co, 469 Mich 41, 47-51; 664 NW2d 776 (2003).
“In determining the percentages of fault under subsection (l)(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.” MCL 600.6304(2); see also Holton, 255 Mich App at 323-326.
Pursuant to MCR 7.215(C)(1), an unpublished opinion has no precedential value. However, this Court may follow an unpublished opinion if it finds the reasoning persuasive. See Slater v Ann Arbor Pub Schools Bd of Ed, 250 Mich App 419, 432; 648 NW2d 205 (2002). | [
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METER, J.
This case involves a proposal by defendant Department of Natural Resources (DNR) to construct a public-access boat launch on Crystal Lake in defendant Benzie County. Plaintiff, Crystal Lake Property Rights Association, is composed of owners of property in the vicinity of the proposed boat launch, and it sued to stop the construction of the boat launch. The trial court, in granting the DNR’s subsequent motions for summary disposition, rejected plaintiffs attempt to stop the construction. Plaintiff appeals as of right, and we affirm in part, reverse in part, and remand for further proceedings. We hold that the DNR’s project is subject to the county zoning ordinance, despite the DNR’s compliance with MCL 324.78114, a provision of the waterways commission act, MCL 324.78101 et seq., contained in part 781 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq. We also hold that an earlier settlement involving a trail running adjacent to Crystal Lake does not prohibit the proposed boat launch.
I. BACKGROUND FACTS
In October 1996, a settlement was reached in a class action brought by certain property owners against the Michigan Department of Transportation (DOT) with respect to their claim of title to a railroad right-of-way running along the south shore of Crystal Lake. Under the settlement, the DNR was entitled to a permanent easement for a ten-foot-wide public trail, subject to limitations and restrictions set forth in the settlement and the DOT’s superior right to resume rail use within the easement. The trail, a segment of a larger trail known as the Betsie Valley Trail, was to be “operated and used in a manner that does not disrupt the lives of the adjoining property owners or diminish their opportunity to use and enjoy the waterfront or place unreasonable restrictions on use of the trail by the public.” In November 1996, the trial court entered a judgment based on the settlement.
In late 2001 and early 2002, the DNR took steps to acquire property fronting Crystal Lake for a public-access boat launch on land that abuts the Betsie Valley Trail. Under the DNR’s plan, boaters would drive to the property, back up their vehicles and trailers to launch their boats into the lake, and then park the vehicles and trailers in a parking lot. The plan provided for four launch ramps and 100 parking spaces. Other planned features included a staging area with benches, toilets, and bicycle racks. It was anticipated that some individuals using the Betsie Valley Trail would stop at the planned facility, but the intent was to have the planned facility serve as a boat launch.
In May 2002, the state acquired 20 acres of property to be used for the boat launch. Earlier, between December 2001 and February 2002, the Benzie County Board of Commissioners and the Benzonia Township Board expressed approval of the development, but had no interest in acquiring the land. In May 2004, the Michigan Department of Environmental Quality (DEQ) issued a permit to the DNR to allow construction of a “public boat launch.” The permit specified, in part, that it did not waive the necessity of seeking “federal assent [and] all local permits or complying with other state statutes.”
In June 2004, plaintiff filed the instant action for declaratory and injunctive relief against Benzie County and the DNR. Plaintiff alleged in counts I and II of its amended complaint that Benzie County violated the former County Zoning Act, MCL 125.201 et seq., and due process and equal protection rights by allowing property acquired by governmental units to be rezoned to district “G,” a designation that permits the governmental unit to determine the appropriate land use without a public hearing. Count III alleged that the DNR violated the earlier settlement. Count IV alleged that the DNR violated a Betsie Valley Trail ordinance adopted by Benzie County in 2002. Count V alleged that the proposed public boating access site would violate the Michigan environmental protection act, MCL 324.1701 et seq., but conceded that an administrative proceeding on this claim was pending.
The DNR moved for summary disposition before the filing of the amended complaint. It argued that plaintiffs challenge to the district “G” provisions in Benzie County’s zoning ordinance was baseless and, in any event, it was not subject to the zoning ordinance pursuant to MCL 324.78114. Further, the DNR argued that it did not violate the earlier settlement or the Betsie Valley Trailway ordinance. Benzie County later joined in the DNR’s motion, but declined to stipulate that the DNR is not subject to county zoning ordinances.
Plaintiff then moved for partial summary disposition with respect to whether the DNR’s proposed public-access boat launch is subject to local zoning control. The trial court determined that the evidence established that the DNR had complied with MCL 324.78114. It mentioned, in dicta, that Benzie County’s zoning ordinance was unconstitutional with respect to district “G,” but held that the zoning ordinance simply did not apply to the DNR as long as it complied with MCL 324.78114. It granted the DNR’s motion with respect to counts I and II. During later proceedings, it also granted summary disposition to the DNR with respect to counts III and IV
II. THE DNR’S PROJECT IS SUBJECT TO LOCAL ZONING
Plaintiff argues that the trial court erred in ruling that the DNR was exempt from local zoning ordinances. We review a trial court’s decision to grant summary disposition de novo and do the same for the interpretation and application of a statute. Wayne Co v Wayne Co Retirement Comm, 267 Mich App 230, 243; 704 NW2d 117 (2005).
In Burt Twp v Dep’t of Natural Resources, 459 Mich 659, 661, 664; 593 NW2d 534 (1999), the Supreme Court held that the DNR was required to comply with the local zoning ordinance, which had been adopted pursuant to the former Township Rural Zoning Act (TRZA), MCL 125.271 et seq., in constructing a public-access boat launch. It declined to hold that the NREPA exempted the DNR from local zoning laws. Burt Twp, supra at 671. In the present case, the trial court held that 1998 PA 210, which enacted MCL 324.78114, a provision of the NREPA, “implicitly overruled” Burt Twp. The trial court concluded that as long as the DNR complied with MCL 324.78114, it could construct a public-access boat launch without being subject to the local zoning ordinance.
In Burt Twp, supra at 663, the Court, quoting Dearden v Detroit, 403 Mich 257, 264; 269 NW2d 139 (1978), indicated that “ ‘the legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances.’ ” The Court ultimately concluded:
In sum, the NREPA and the TRZA appear to provide coextensive statutory rights concerning the protection of natural resources in general and the development of recreation facilities and other waterfront developments in particular. Moreover, nothing in the NREPA establishes a clear expression of legislative intent to exempt the DNR’s activities in this case from the Burt Township zoning ordinance. Accordingly, for all the reasons stated, we hold that the DNR, in the construction of its public-access boat launch, is subject to Burt Township’s zoning ordinance. The decision of the Court of Appeals is affirmed. [Burt Twp, supra at 671.]
1998 PA 210 added the following language to the NREPA:
(1) Prior to acquiring a public boating access site, the department shall obtain a 90-day option on the land proposed for acquisition. In obtaining this option, the department shall attempt to negotiate an option that may be transferred to a local unit of government. Upon placing the option on the land, the department shall notify the municipality and the county in which the land is located of the option and whether the department plans to hold a public hearing on the proposed purchase and development of the land as a public boating access site. The municipality or county in which the proposed public boating access site is located may hold a public hearing on the proposed purchase and development of the land as a public boating access site. If a municipality or county holds a public hearing under this subsection, the municipality or county shall notify the department, and a representative of the department shall attend the public hearing.
(2) During the 90-day period in which the department holds an option under subsection (1), the municipality or county in which the land is located may do either of the following:
(a) Notify the department that it intends to operate a public boating access site on that land. If the department receives a notice pursuant to this subdivision, the department shall transfer the option, if possible, to the municipality or county so that it may exercise the option and purchase the land. If the municipality exercises the option and purchases the land, the exercise of the option shall be contingent upon the municipality or county and the department entering into a legally enforceable agreement that specifies how the public boating access site will be operated. The agreement shall provide that the public boating access site will be operated in the same manner as a public boating access site that is operated by the department, unless the department agrees to alternative terms. The agreement shall also provide that if the municipality or county violates the agreement, the department may operate the public boating access site in compliance with the agreement.
(b) Identify another suitable location on the lake that the department could acquire for a public boating access site. The public boating access site shall be comparable for development as the one proposed by the department. [MCL 324.78114.]
The DNR argues, and the trial court held, that this amendatory language evidences a legislative intent to exempt the DNR from local zoning laws. We disagree. It is true that in Burt Twp, supra at 669, the Court stated that it was not necessary that the Legislature use “any particular talismanic words to indicate its intent [with regard to a zoning exemption]. The Legislature need only use terms that convey its clear intention that the grant of jurisdiction given is, in fact, exclusive.” However, we find no language within MCL 324.78114 or, for that matter, within the rest of 1998 PA 210, indicating that the DNR has exclusive jurisdiction in the placement of public-access boat launches. Significantly, MCL 324.78114(2)(a) does not purport to exempt the DNR from local zoning requirements, but only requires that the site be operated in a manner agreed to by the parties. Zoning ordinances are concerned with the use of property. Dearden v Detroit, 403 Mich 257, 267; 269 NW2d 139 (1978). Further, there is nothing in MCL 324.78114 that requires the DNR to exercise the option to purchase property, regardless of what the local unit of government elects to do. However, at the end of the 90-day option process, the DNR should know how its proposal is viewed in the municipality or county and what steps would be necessary for it to pursue the matter further. MCL 324.78114 can be reasonably construed as merely requiring that the DNR, in creating a public-access boat launch, follow specific procedures to involve local government.
In addition, the Legislature, when passing laws, is presumed to be aware of judicial interpretations of existing law. Ford Motor Co v Woodhaven, 475 Mich 425, 439-440; 716 NW2d 247 (2006). There is nothing in the amendatory act that establishes a clear expression of legislative intent to modify this Court’s conclusion in Burt Twp (before it was affirmed by the Supreme Court) that the NREPA did not serve to exempt the DNR from the local zoning ordinance.
This case differs from Byrne v Michigan, 463 Mich 652, 657-658, 660; 624 NW2d 906 (2001), in which the Supreme Court found that legislation enacted after a judicial decision to enjoin the Michigan State Police from constructing a communications tower clearly expressed a legislative intent to exempt the Michigan State Police from local zoning ordinances. Similar to the amended act at issue in this case, MCL 28.282 (the statute at issue in Byrne) entitles a local unit of government to notice of the site selection. Byrne, supra at 660. However, unlike in this case, the Legislature in MCL 28.282 required that the local unit of government have zoning authority and specified a clear outcome, namely, that the Michigan State Police “may proceed with construction” in the event that the local unit of government does not grant a special use permit or propose an alternative, workable site. Byrne, supra at 660-661.
The present case also differs from Dearden, supra at 265-267, in which our Supreme Court determined that the Legislature’s use of language in the corrections code, MCL 791.201 et seq., such as “exclusive jurisdiction,” MCL 791.204, and the broad vesting of powers in the Michigan Corrections Commission over “all matters related to the unified development of the penal institutions,” former MCL 791.202, were evidence that “the Legislature intended to grant the Department of Corrections immunity from local zoning ordinances when establishing state penal institutions.” Similarly, in Northville Charter Twp v Northville Pub Schools, 469 Mich 285, 290-291 (TAYLOR, J., joined by CORRIGAN, C.J., and YOUNG, J.), 298-299 (CAVANAGH, J., joined by KELLY, J.), 302 (WEAVER, J.); 666 NW2d 213 (2003), there was “sole and exclusive jurisdiction” language in MCL 380.1263; the Supreme Court considered this language in holding that the state superintendent of public instruction has sole and exclusive jurisdiction over school construction and site plans and is not subject to local zoning ordinances. Also, in Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 703, 711; 664 NW2d 193 (2003), the Court, in determining whether the defendant was required to comply with local zoning ordi nances in selecting the site of a homeless shelter, emphasized that MCL 46.11 empowers a county board of commissioners to determine the site of county buildings, with only one limitation, relating to “any requirement of law that the building be located at the county seat.” The Court concluded that the Legislature intended no other limitation. Pittsfield Charter Twp, supra at 711. A similar situation is not present in the instant case.
There is simply no basis for concluding that the DNR is exempt from local zoning ordinances if it complies with MCL 324.78114, and therefore we reverse the trial court’s ruling.
III. THE EARLIER SETTLEMENT DOES NOT PROHIBIT THE PROPOSED BOAT LAUNCH
Plaintiff next contends that the trial court erred in granting summary disposition with regard to its claim that the final judgment in the earlier lawsuit prohibits construction of the DNR’s proposed boat launch. Specifically, plaintiff asserts that the proposed boat launch would violate the settlement reached in that lawsuit by allowing non-boaters to enter the trail from the boat launch, by having bicycle racks and other amenities in anticipation that trail users will be present, and by creating a new public access area to the lake from the trail. The DNR counters that because it acquired property adjoining the trail, its use of that property to provide a boat launch is protected under the portion of the settlement governing “adjoining property owners.”
We affirm the lower court’s decision. Settlement agreements are generally construed in the same manner as contracts. Michigan Mut Ins Co v Indiana Ins Co, 247 Mich App 480, 484; 637 NW2d 232 (2001). “The primary goal of contract interpretation is to enforce the parties’ intent.” Chestonia Twp v Star Twp, 266 Mich App 423, 432; 702 NW2d 631 (2005) (citation and quotation marks omitted).
The settlement provided that “all adjoining property owners, their guests and invitees shall at all times have free and direct access over the trail easement on their respective properties.” It further provided that property owners could use their property in any way “not inconsistent with said easement.”
The settlement also included a “Special Trail Use and Law Enforcement Plan” (the Plan) to govern the use of the trail easement by any person; the Plan was to be enforced by the DNR, Benzie County, and local organizations. The settlement acknowledged that the DNR’s enforcement duty lay “primarily in controlling usage by the general public and not the usage of adjoining property owners, their guests or invitees.” The Plan’s stated purpose was to ensure that the trail would be used in a manner that “does not disrupt the lives of the adjoining property owners or diminish their opportunity to use and enjoy the waterfront or place unreasonable restrictions on use of the trail by the public.” The Plan set forth a series of special restrictions on the trail, two of which are pertinent to this appeal:
Except for adjacent property owners, trail users must stay on the trial surface and shoulders. Entrance to this portion of the trail by non-resident trail users shall be only at the trail-heads at Benzie Boulevard/Spring Valley Drive in the Village of Beulah on the east, at Mollineaux Road on the west, or other designated public access areas. Trailhead parking will be designated, with appropriate signage, at the two trailheads.
There will be no toilet facilities, drinking fountains, telephones, picnic tables, no hunting, fishing, camping, picnicking or vending and no public access to the Crystal Lake waterfront or docks except as specifically allowed in designated public areas.
Plaintiff contends that construction of the boat launch would violate these two restrictions by essentially creating a new public access area, without any amendment of the agreement. In ruling on this argument below, the trial court found that the special restrictions in the Plan applied only to the trail and not to adjacent land. The court acknowledged that although the DNR was not prohibited by the settlement from constructing a boat launch on its property, it would still have to control public use of the trail from the launch. The court presumed that public officials would perform that responsibility properly.
We agree with the trial court’s analysis that the settlement does not preclude the DNR from building the proposed boat launch. By acquiring property that abuts the trail, the DNR became an adjoining property owner under the settlement and is entitled to the same rights as other property owners, because the settlement provides no exception for governmental entities that become landowners. As an adjoining landowner, the DNR may allow its own guests and invitees to access that part of the trail located on its property and use its property in any way that does not conflict with the trail easement. The restrictions within the Plan apply only to the trail itself, and not to the activities of adjoining landowners.
Also, we do not find that the DNR’s boat launch would create a new “designated public area.” According to the Plan’s use of the term, designation occurs when an area is specified for particular uses and signage is authorized to communicate the designation to trail users. There is simply no evidence that the proposed boat launch will be marked by the DNR for any use associated with the trail. Plaintiff does question whether the DNR will be able to control trail usage associated with the boat launch so that it does not interfere with the rights of neighboring property owners. However, “[i]t is presumed that public officers perform their official duties.” Glavin v State Hwy Dep’t, 269 Mich 672, 675; 257 NW 753 (1934).
The trial court correctly determined that the earlier settlement does not prohibit the proposed boat launch.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
MARKEY, PJ., concurred.
Effective July 1, 2006, the County Zoning Act and other zoning acts were repealed by 2006 PA 110 and replaced by the Michigan Zoning Enabling Act, MCL 125.3101 et seq. MCL 125.3702 lists the repealed acts, but provides in subsection 2:
This section does not alter, limit, void, affect, or abate any pending litigation, administrative proceeding, or appeal that existed on June 30, 2006 or any ordinance, order, permit, or decision that was based on the acts repealed under subsection (1). The zoning ordinance need not be readopted but is subject to the requirements of this act, including, but not limited to, the amendment procedures set forth in this act.
Count V was dismissed without prejudice so that plaintiff could pursue administrative remedies. It is not at issue in this appeal.
1998 PA 210 was enacted before Burt Twp was decided. However, the amendments were not applicable to Burt Twp because of their effective date. See Burt Twp, supra at 668 n 9.
See Burt Twp v Dep’t of Natural Resources, 227 Mich App 252, 258-260; 576 NW2d 170 (1997).
We remand this case for further proceedings. Although the trial court expressed disapproval of the portion of Benzie County’s zoning ordinance relating to district “G,” we conclude that it did not conclusively render declaratory relief with respect to the constitutionality of the ordinance; it essentially concluded that the issue was moot. This conclusion is bolstered by the fact that the parties do not address the substance of this issue in their appellate briefs. Presumably, this will be an issue the parties will revisit on remand. | [
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DAVIS, J.
Petitioner appeals as of right from a Tax Tribunal decision dismissing its appeals of respondent’s property tax assessments for tax years 2003, 2004, 2005, and 2006. We affirm.
Petitioner is the lessee of real property in Macomb Township pursuant to a long-term lease that requires it to pay the property taxes for the property. The lease provides that petitioner is entitled to contest the validity of any tax; the property owner must cooperate in any contested proceeding and execute any necessary documents. In March 2002, respondent’s board of review adopted a rule under which “[a] person who is filing a petition to appear before the Board of Review, on behalf of a property owner, must furnish written authorization from the property owner appointing them as the agent/representative.” On March 1, 2003, petitioner timely filed with respondent’s board of review a written appeal and objection to respondent’s 2003 tax assessment. Petitioner attached a letter that identified petitioner as the taxpayer and that authorized its designated representative to appear before the board. However, petitioner did not provide any documentation showing that it had an ownership interest in the property or that the property owner had authorized petitioner to appear before the board. The board of review dismissed the appeal for lack of standing: respondent’s assessment roll showed that M. Tartaglia, L.L.C., was the property owner, so without proper authorization, only M. Tartaglia, L.L.C., could challenge the tax assessment for the property.
Petitioner appealed the adverse ruling to the Tax Tribunal. There, petitioner filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that the board of review improperly found that it lacked standing. Specifically, petitioner argued that it had an ownership interest in the property and was a party in interest because it was responsible for paying the property taxes. The hearing referee requested additional information and delayed a decision on that motion several times. In the interim, petitioner was permitted to amend its petition to include challenges to the 2004, 2005, and 2006 tax assessments as well. In December 2006, the hearing referee issued a ruling that petitioner lacked standing to challenge the property tax assessments for each of the tax years. Accordingly, it denied petitioner’s motion for summary disposition and granted judgment in favor of respondent pursuant to MCR 2.116(I)(2). This appeal followed.
Our review of a Tax Tribunal decision is very limited. In the absence of fraud, we are limited to deciding whether the tribunal committed an error of law or adopted a wrong legal principle. Liberty Hill Housing Corp v Livonia, 480 Mich 44, 49; 746 NW2d 282 (2008). Factual findings made by the tribunal will not be disturbed as long as they are supported by competent, material, and substantial evidence on the whole record. Id. We review de novo the proper interpretation of statutes and rulings on summary-disposition motions. Coblentz v Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). The purpose of statutory interpretation is to discover and give effect to the Legislature’s intentions, and unambiguous statutory language should be enforced as written. Gladych v New Family Homes, Inc, 468 Mich 594, 597; 664 NW2d 705 (2003). A motion for summary disposition under MCR 2.116(0(10) should be granted if there is no genuine issue of material fact when the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the nonmoving party; in that circumstance, the moving party is entitled to judgment as a matter of law. Coblentz, supra at 567-568. Under MCR 2.116(I)(2), the court may enter ajudgment in favor of the opposing party if it appears that the opposing party is entitled to judgment.
The parties have stipulated the facts. At issue is whether the Tax Tribunal correctly determined that, on the basis of those facts, petitioner lacked standing to challenge the tax assessments. The concept of standing in the context of a legal proceeding means that a party must have suffered an actual, particularized impairment of a legally protected interest, that the opposing party can in some way be shown to be responsible for that impairment, and that a favorable decision by a court could likely redress that impairment. See Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 739; 629 NW2d 900 (2001).
The General Property Tax Act (GPTA), MCL 211.1 et seq., governs proceedings before local boards of review. MCL 211.30 sets forth procedures to be followed when protesting tax assessments before the board of review. MCL 211.30(4) provides, in relevant part:
At the request of a person whose property is assessed on the assessment roll or of his or her agent, and if sufficient cause is shown, the board of review shall correct the assessed value or tentative taxable value of the property in a manner that will make the valuation of the property relatively just and proper under this act.
Subsection 3 provides that “[p]ersons or their agents who have appeared to file a protest before the board of review at a scheduled meeting or at a scheduled appointment shall be afforded an opportunity to be heard by the board of review.” Subsection 4 further provides that “nonresident taxpayers” may support any such protest by submitting a letter. Subsection 7 permits governing bodies to authorize “resident taxpayers” to submit protests by letter and without personally appearing. Thus, when read as a whole, MCL 211.30 affords “taxpayers” the opportunity to be heard on tax protests, but only “a person whose property is assessed on the assessment roll or his or her agent” may actually make such a property tax protest before the board of review.
MCL 211.24(l)(a) provides in part that each March, the local assessor shall make and complete an assessment roll and include
[t]he name and address of every person liable to be taxed in the local tax collecting unit with a full description of all the real property liable to be taxed. If the name of the owner or occupant of any tract or parcel of real property is known, the assessor shall enter the name and address of the owner or occupant opposite to the description of the property. If unknown, the real property described upon the roll shall be assessed as “owner unknown.”
MCL 211.24(l)(g) recognizes that property may be assessed in the name of someone other than the owner. That statute provides that “[property assessed to a person other than the owner shall be assessed separately from the owner’s property and shall show in what capacity it is assessed to that person, whether as agent, guardian, or otherwise.” The assessor is required to send notices of the taxes to “each owner or person or persons listed on the assessment roll of the property.” MCL 211.24c(l). Similarly, MCL 211.24c(4) provides that “[t]he assessment notice shall be addressed to the owner according to the records of the assessor.”
Therefore, it is apparent that respondent’s obligation to send the required notices extends to those names that appear on the assessment roll, whether they are the owner or an owner’s agent. MCL 211.30(4) is consistent with the notice requirements and confers on any person whose name appears on the assessment roll, including an owner’s agent, standing to challenge a tax assessment. In this case, however, petitioner never demonstrated that it took the necessary steps to have its name placed on the assessment roll or to obtain the owner’s written authorization to appear before the board of review on behalf of the listed owner. Indeed, the evidence affirmatively shows that petitioner was not ever placed on the assessment roll for the parcel at issue in this case; rather, only M. Tartaglia, L.L.C., appeared on the assessment roll.
We disagree with the dissent’s conclusion that the plain language of MCL 211.30(4) gives petitioner the right to protest the assessed value of this property. Because petitioner is not a “person whose property is assessed on the assessment roll,” and because petitioner did not provide the board of review with any indication that it was the agent of a “person whose property is assessed on the assessment roll,” the statute does not give petitioner any rights. Accordingly, petitioner failed to establish its standing to protest the 2003 tax assessment.
Petitioner next argues that MCL 205.735(3) permits “parties in interest” to petition the Tax Tribunal regarding unlawful assessments, and that statute should be reconciled with MCL 211.30 such that long-term lessees may appeal an assessment. Given the plain language of the statute, we disagree. MCL 205.735(3) is part of the Tax Tribunal Act, MCL 205.701 et seq., and it governs the Tax Tribunal’s jurisdiction to consider a petitioner’s appeal from an adverse decision of a board of review. It is not applicable to initial challenges to tax assessments before boards of review. Similarly, petitioner argues that it is “the real party in interest” under MCR 2.201(B) as “a party having an interest that will assure sincere and vigorous advocacy.” City of Kalamazoo v Richland Twp, 221 Mich App 531, 534; 562 NW2d 237 (1997). However, although petitioner was liable to the property owner for the property taxes under the terms of its lease, the property owner ultimately remained liable to the township for the payment of taxes. Therefore, the owner was the real party in interest for purposes of challenging the property tax assessment. Most significantly, and as explained previously, the board of review’s rules would have allowed petitioner to challenge the tax assessment if petitioner had submitted written authorization from the assessed owner.
Petitioner also argues that the Tax Tribunal erred in relying in part on the definition of “taxpayer” in MCL 211.44(10)(c), even though that definition is expressly limited to that statute. Even if the definition in MCL 211.44(10)(c) is not applicable, however, the hearing referee correctly concluded that petitioner lacked standing pursuant to MCL 211.30.
Petitioner alternatively argues that MCL 211.27a(6)(g) establishes its standing as a tenant under a long-term lease that exceeds 35 years. That statute provides that a “transfer of ownership” for purposes of taxing property includes a conveyance by lease if the duration of the lease is more than 35 years. Here, however, petitioner did not present evidence showing that it complied with the notice requirements in MCL 211.27a(10) to provide respondent with notice of the property transfer, and petitioner was not listed on the assessment roll. Accordingly, even if petitioner’s lease agreement qualifies as a “transfer of ownership” under MCL 211.27a(6)(g), it does did not establish petitioner’s standing pursuant to MCL 211.30.
We do not suggest, as the dissent implies we do, that a long-term lessee like petitioner has no interest in the property it leases. But, even if the terms of the lease obligate it to pay the taxes, that does not mean that petitioner has a “legally protected interest” under the GPTA. See Lee, supra at 739. Petitioner was not “a person whose property is assessed on the assessment roll” or the agent of that person. Rather, the assessment roll showed that another individual was responsible for the taxes. The lease might make petitioner the agent of the person whose property is assessed, but no evidence thereof was submitted to the board of review. Petitioner, as the party seeking the benefit of standing, had the burden of showing standing. Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 630-631; 684 NW2d 800 (2004). For all of these reasons, we conclude that the Tax Tribunal did not err in dismissing petition er’s appeal on the basis that it lacked standing to challenge the 2003 tax assessment before the board of review.
Petitioner also argues that the Tax Tribunal erred in dismissing its additional claims for the 2004, 2005, and 2006 tax years. We disagree. Although MCL 205.737(4) permitted petitioner to join its claims for those tax years with its appeal involving the 2003 tax year, petitioner was still required to establish its standing to challenge the tax assessments for those years before the board of review. Because petitioner failed to establish its standing to challenge the 2004, 2005, and 2006 tax assessments for the same reasons previously discussed relative to the 2003 tax year, those claims were also properly dismissed.
Finally, we find no merit to petitioner’s argument that even if the Tax Tribunal did not err in denying its motion for summary disposition, it improperly granted judgment in favor of respondent under MCR 2.116(I)(2). The evidence demonstrates that there was no genuine issue of material fact that petitioner did not have its name placed on the assessment roll, obtain the property owner’s written authorization to appear before the board of review on the owner’s behalf, or even tender a copy of its lease to the board for the same purpose. Accordingly, the tribunal appropriately determined that petitioner lacked standing to protest the property tax assessments and, accordingly, that respondent was entitled to judgment as a matter of law.
Affirmed.
OWENS, P.J., concurred.
The dissent correctly notes that the board of review adopted a more specific policy explicitly requiring a “Letter of Authorization” a few days after petitioner filed its appeal. We also recognize that the board of review apparently deemed this policy relevant to its rejection of petitioner’s appeal. However, contrary to the suggestion of the dissent, we do not find the later policy of significance here, and we express no view thereon. Again, petitioner did not provide any sort of “written authorization from the property owner appointing it as the agent/representative” for the purpose of appearing before the board of review, and that was the basis for the board’s rejection. Petitioner did not even tender to the hoard a copy of the lease as evidence of such authorization, which counsel for respondent conceded at oral argument would have sufficed.
The dissent raises the specter that the assessed property owner might, for some reason, refuse to provide that written authorization to a lessee who is responsible for the payment of taxes under the terms of the lease. However, we believe, as did counsel for respondent at oral argument, that submission of the lease itself would constitute “written authorization.” We reiterate that we have no occasion here to consider the later, more specific, policy, and we decline in any event to engage in speculation over a situation that the instant case does not factually support.
In its statement of questions presented in its brief on appeal, petitioner lists as Issue V that the Tax Tribunal’s “second order constitutes fraud, error of law, the adoption of wrong principles, and/or relies on factual findings not supported by the record.” Petitioner does not present any supporting argument for this issue in its brief. Therefore, the issue is abandoned. Great Lakes Div of Nat’l Steel Corp v City of Ecorse, 227 Mich App 379, 422; 576 NW2d 667 (1998). | [
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PER CURIAM.
Defendant Anthony McGee appeals as of right his jury conviction of carjacking and assault with the intent to rob while armed. The trial court sentenced McGee to concurrent terms of 5 to 20 years’ imprisonment. We affirm. We decide this appeal without oral argument.
I. BASIC FACTS
On March 5, 2007, at approximately 4:00 or 4:30 p.m., Roscoe Anderson was repairing a car in the parking lot of the apartment complex where he resided when McGee walked into the parking lot. McGee asked Anderson for a cigarette, and Anderson got into his vehicle to look for a cigarette in his coat pocket. McGee then reached into his coat, brandished a handgun, and told Anderson to “step out” of the car. Anderson felt surprised and threatened, and he complied with McGee’s request. McGee got into the car and drove to the end of the parking lot where he picked up his girlfriend and then left the scene. McGee and his girlfriend turned themselves in to the police several days later.
II. DOUBLE JEOPARDY
A. STANDARD OF REVIEW
McGee argues that his convictions of both carjacking and assault with the intent to rob while armed violate the double jeopardy clauses of the state and federal constitutions. Because McGee raises these double jeopardy challenges for the first time on appeal, they are not preserved for appellate review. However, a double jeopardy issue presents a significant constitutional question that will be considered on appeal regardless of whether the defendant raised it before the trial court. We review an unpreserved claim that a defendant’s double jeopardy rights have been violated for plain error that affected the defendant’s substantial rights, that is, the error affected the outcome of the lower court proceedings. Reversal is appropriate only if the plain error resulted in the conviction of an innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial proceedings.
B. ANALYSIS
Both the United States and the Michigan constitutions protect a defendant from being placed twice in jeopardy, or subject to multiple punishments, for the same offense. “Judicial examination of the scope of double jeopardy protection under both constitutions is confined to a determination of legislative intent.” And the validity of multiple punishments under the Michi gan Constitution is determined under the federal Blockburger “same elements” standard. If the Legislature clearly intended to impose multiple punishments, the imposition of multiple sentences is permissible regardless of whether the offenses have the same elements, but if the Legislature has not clearly expressed its intent, multiple offenses may be punished if each offense has an element that the other does not. In other words, the test “emphasizes the elements of the two crimes.” “ ‘If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes .. . .’ ”
In People v Parker, the defendant challenged his convictions of carjacking and armed robbery arising out of the same incident, arguing that these convictions violated his federal and state constitutional protections against double jeopardy. The Court disagreed and affirmed his convictions, stating that the “[defendant's carjacking conviction stems from the taking of the automobile at gunpoint, whereas [the] defendant’s armed robbery conviction stems from the subsequent taking of the victim’s wallet and money at gunpoint.” On the basis of this stated rationale, McGee argues that his case is factually distinct from Parker because he stole only the car instead of also stealing the victim’s personal property. In other words, McGee argues that, because the targeted property was only the car itself, both of his convictions are supported by entirely the same evidence and, thus, are violative of the double jeopardy protections. We disagree.
In Parker, the Court differentiated the elements of the two crimes, stating, “It is clear from the language of the carjacking statute that the Legislature intended to prohibit takings accomplished with force or the mere threat of force. In contrast, it is clear from the language of the armed robbery statute that the Legislature intended to prohibit takings accomplished by an assault and the wielding of a dangerous weapon.” Here, although the jury convicted McGee of assault with intent to rob while armed, rather than armed robbery, as in Parker, the same logic applies. The carjacking statute has no requirement that a weapon be used. In contrast, the assault with the intent to rob while armed statute does have as a requirement the use of a weapon. Also, the assault with the intent to rob while armed statute does not require the larceny of a motor vehicle, as does the carjacking statute. While there may indeed be substantial overlap between the proofs offered by the prosecution to establish the crimes, the prosecution must nevertheless prove different elements under these statutory provisions. Moreover, the Legislature specifically authorized two separate convictions arising out of the same transaction in the carjacking statute. Therefore, it is clear that the Legislature intended to separately punish a defendant convicted of both carjacking and assault with the intent to rob while armed, even if the defendant committed the offenses in the same criminal transaction. Accordingly, because the Legislature intended multiple punishments for these two different criminal actions, McGee’s convictions do not violate his constitutional protections against double jeopardy.
III. SENTENCING
McGee claims that he is entitled to resentencing because the trial court incorrectly scored 20 points for prior record variable (PRV) 6 as a result of his relation ship with the juvenile system at the time of the instant offenses. However, we hold that, even assuming that the PRV was misscored, the error was harmless because the recommended minimum sentence range of the sentencing guidelines would not change. Therefore, McGee is not entitled to resentencing.
Affirmed.
MCL 750.529a(l).
MCL 750.89.
MCR 7.214(E).
Const 1963, art 1, § 15.
US Const, Am V
See People v Meshell, 265 Mich App 616, 628; 696 NW2d 754 (2005).
People v Colon, 250 Mich App 59, 62; 644 NW2d 790 (2002).
Meshell, supra at 628.
Id.
US Const, Am V; Const 1963, art 1, § 15; People v Smith, 478 Mich 292, 299; 733 NW2d 351 (2007).
People v Parker, 230 Mich App 337, 342; 584 NW2d 336 (1998).
Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).
Smith, supra; see also People v Ream, 481 Mich 223; 750 NW2d 536 (2008).
Smith, supra at 315-316.
Brown v Ohio, 432 US 161, 166; 97 S Ct 2221; 53 L Ed 2d 187 (1977).
Id., quoting Iannelli v United States, 420 US 770, 785 n 17; 95 S Ct 1284; 43 L Ed 2d 616 (1975).
Parker, supra at 341-342.
Id. at 342.
Id. at 343.
In several unpublished opinions, this Court has rejected double jeopardy challenges to convictions of assault with intent to rob while armed and carjacking or attempted carjacking. People v Lollio, unpublished opinion per curiam of the Court of Appeals, issued October 21, 2003 (Docket No. 241431); People v Copeland, unpublished opinion per curiam of the Court of Appeals, issued June 13, 2000 (Docket No. 212275); People v Stevens, unpublished opinion per curiam of the Court of Appeals, issued July 2,1999 (Docket No. 207989). Although those cases are not precedentially binding, MCR 7.215(C)(1), their analyses are sound.
MCL 750.529a(l) states:
A person who in the course of committing a larceny of a motor vehicle uses force or violence or the threat of force or violence, or who puts in fear any operator, passenger, or person in lawful possession of the motor vehicle, or any person lawfully attempting to recover the motor vehicle, is guilty of carjacking, a felony punishable by imprisonment for life or for any term of years. [Emphasis added.]
MCL 750.89 states:
Any person, being armed with a dangerous weapon, or any article used or fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous weapon, who shall assault another with intent to rob and steal shall be guilty of a felony, punishable by imprisonment in the state prison for life, or for any term of years. [Emphasis added.]
MCL 750.529a(3) states: “A sentence imposed for a violation of this section may be imposed to run consecutively to any other sentence imposed for a conviction that arises out of the same transaction.” See also Parker, supra at 343-344.
See Parker, supra at 344-345.
See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). | [
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PER CURIAM.
Plaintiff appeals by leave granted the May 19, 2006, trial court order granting defendant’s motion for a finding that the court lacked exclusive, continuing jurisdiction under the relevant provision of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1202(l)(a). We reverse and remand for proceedings consistent with this opinion.
i
The parties were married in Ontario, Canada, in September 1993, and their son, Callum White, was born in Ontario in July 1997. In May 2000, plaintiff began employment in Grand Rapids, Michigan. He then commuted between Ontario and Michigan for almost one year. In February 2001, plaintiff, defendant, and Callum moved to Rockford, Michigan. But, by February 2004, the parties’ marriage had broken down and defendant and Callum returned to Ontario, where they currently reside.
Plaintiff filed for a divorce in March 2004. The trial court issued a temporary order dated July 6, 2004, stating that plaintiff “shall exercise parenting time with the parties’ minor child every other weekend .. . with every other visitation occurring in Ontario, Canada and every other visitation occurring in Rockford, Michigan,” as well as alternating holiday and vacation parenting time. The court entered a judgment of divorce in July 2005, awarding joint legal custody to the parties, but primary physical custody to defendant. The divorce judgment awarded plaintiff liberal parenting time to be exercised in Michigan and Ontario.
The parenting time provisions of the divorce judgment were twice amended, and the August 29, 2005, amendment to the judgment provides, in part:
The Plaintiff shall have reasonable and liberal parenting time with the parties’ minor child, including but not limited to alternating weekends and every other holiday. The weekend and holiday visitation shall be as follows:
A. Every other weekend as set forth in the Court’s Order dated July 6, 2004.
B. From December of 2005 through March of 2006, the Plaintiff shall exercise parenting time as set forth in the Court’s Temporary Order dated July 6, 2004. In that regard, the Plaintiff shall exercise his parenting time with the child in Ontario, Canada with alternating weekends of the parenting time being exercised in the United States.
C. Beginning in April of 2006 and continuing through November of 2006 and for similar periods in calendar years thereafter, the Plaintiff shall have the right to exercise his parenting time in the United States for two alternate weekends in a row, with parenting time for the third alternate weekend being exercised in Canada.
D. Beginning in April of 2007 and continuing through November of 2007 and for similar periods in calendar years thereafter, the Plaintiff may exercise his parenting time in the United States for three consecutive alternating weekends, with the fourth being exercised in Ontario, Canada.
The amendment further provides that plaintiff shall be entitled to regular telephone contact with Callum, alternating holiday parenting time, and vacation parenting time, including, but not limited to, every other spring vacation, half of Christmas vacation and, beginning in 2008, three consecutive weeks of summer vacation. In an order dated March 20, 2006, the trial court granted plaintiffs request for make-up visitation, as well as parenting time on Christmas Day 2006 and 2007.
On March 30, 2006, defendant moved for a finding that the trial court no longer had exclusive, continuing jurisdiction over custody determinations in this case, pursuant to MCL 722.1202(1) (a) and (b). The trial court granted defendant’s motion in a May 19, 2006, order, determining that it no longer had jurisdiction under “MCL 722.1202(l)(a) and 722.1203” because “neither the child nor his parents [sic] have a significant connection with the State of Michigan and substantial evidence is no longer available in the state concerning the child’s care, protection, training and personal relationships . . . .” The court noted at the hearing on the matter, however, that it was reluctant to grant the motion because it seemed illogical to divest the court of jurisdiction considering that defendant had submitted to the jurisdiction of the Michigan courts at the time of the divorce judgment and subsequent custody rulings, despite the fact that she and Callum were already living in Ontario. We subsequently granted plaintiff’s delayed application for leave to appeal. White v Harrison-White, unpublished order of the Court of Appeals, entered November 27, 2006 (Docket No. 272612).
n
In this case of first impression, we are asked to construe the meaning of MCL 722.1202(l)(a), particu larly the phrase “significant connection,” to determine whether exclusive, continuing jurisdiction remained in Michigan under the circumstances presented. The determination whether a trial court has subject-matter jurisdiction and issues of statutory construction present questions of law, which we review de novo. Atchison v Atchison, 256 Mich App 531, 534-535; 664 NW2d 249 (2003).
As this Court stated in USAA Ins Co v Houston Gen Ins Co, 220 Mich App 386, 389-390; 559 NW2d 98 (1996):
The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. [Citations omitted.]
Every word or phrase of a statute should be accorded its plain and ordinary meaning, but if the legislative intent cannot be determined from the statute itself, this Court may consult dictionary definitions. Haynes v Neshewat, 477 Mich 29, 36; 729 NW2d 488 (2007). Additionally, decisions from other states may guide this Court when interpreting uniform acts. SCD Chem Distributors, Inc v Medley, 203 Mich App 374, 378; 512 NW2d 86 (1994).
ill
The UCCJEA was promulgated by the National Conference of Commissioners on Uniform State Laws in 1997 and became effective in Michigan in 2002. Atchi son, supra at 536. The UCCJEA was designed to replace the Uniform Child Custody Jurisdiction Act (UCCJA) and “rectify thirty years of inconsistent case law and revise child-custody jurisdiction in light of overlapping federal enactments.” Id. The UCCJEA was further designed to
(1) rectify jurisdictional issues by prioritizing home-state jurisdiction, (2) clarify emergency jurisdictional issues to address time limitations and domestic-violence issues, (3) clarify the exclusive continuing jurisdiction for the state that entered the child-custody decree, (4) specify the type of custody proceedings that are governed by the act, (5) eliminate the term “best interests” to the extent that it invited a substantive analysis into jurisdictional considerations, and (6) provide a cost-effective and swift remedy in custody determinations. [Id.]
When applying the general and jurisdictional provisions of the UCCJEA, a foreign country is treated as a state of the United States. Id. at 537.
MCL 722.1202, which provides for the retention of exclusive, continuing jurisdiction for the state that entered the custody decree, was specifically designed to “rectify conflicting proceedings and orders in child-custody disputes.” Id. at 538. MCL 722.1202 states, in relevant part:
(1) Except as otherwise provided in section 204[ ], a court of this state that has made a child-custody determination consistent with section 201[ ] or 203[ ] has exclusive, continuing jurisdiction over the child-custody determination until either of the following occurs:
(a) A court of this state determines that neither the child, nor the child and 1 parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.
(b) A court of this state or a court of another state determines that neither the child, nor a parent of the child, nor a person acting as the child’s parent presently resides in this state.
(2) A court of this state that has exclusive, continuing jurisdiction under this section may decline to exercise its jurisdiction if the court determines that it is an inconvenient forum under section 207.[ ]
Under MCL 722.1202(l)(a), a court of this state that makes an initial custody determination retains exclusive, continuing jurisdiction until neither the child nor the child and one parent or a person acting as a parent “have a significant connection with this state” and “substantial evidence is no longer available in this state concerning the child’s care, protection, training and personal relationships.” The Legislature’s use of the term “and” compels the conclusion that jurisdiction is retained until both the requisite significant connection and the requisite substantial evidence are lacking. See Karaczewski v Farbman Stein & Co, 478 Mich 28, 43; 732 NW2d 56 (2007). The literal meanings of the terms “and” and “or” should be followed if they do not render the statute dubious. Auto-Owners Ins v Stenberg Bros, 227 Mich App 45, 50-51; 575 NW2d 79 (1997); Root v Ins Co of North America, 214 Mich App 106, 109; 542 NW2d 318 (1995). Here, a literal reading of the term “and” does not render the statute dubious; instead, it provides a clear, two-pronged test for exclusive, con tinuing jurisdiction. Therefore, we conclude that a literal reading was intended. Further, we note that our literal interpretation of the statute’s plain, unambiguous language comports with that of a majority of jurisdictions. See, e.g., West v West, 364 Ark 73, 84; 216 SW3d 557 (2005); In re Forlenza, 140 SW3d 373, 379 (Tex, 2004); Benson v Benson, 667 NW2d 582, 585 (ND, 2003); Griffith v Tressel, 394 NJ Super 128, 141; 925 A2d 702 (2007); Grahm v Superior Court, 132 Cal App 4th 1193, 1196; 34 Cal Rptr 3d 270 (2005); Fish v Fish, 266 Ga App 224, 226-227; 596 SE2d 654 (2004); Ruth v Ruth, 32 Kan App 2d 416, 421; 83 P3d 1248 (2004); but see, e.g., In re Marriage of Medill, 179 Or App 630, 641-642; 40 P3d 1087 (2002).
In this case, the trial court determined that it no longer had exclusive, continuing jurisdiction under MCL 722.1202(l)(a), given a lack of significant connection and substantial evidence. We find, however, that the requisite significant connection exists in this case.
The phrase “significant connection” is not defined in the UCCJEA. Random House Webster’s College Dictionary (2005) generally defines the term “significant” as “important; of consequence,” or “having or expressing a meaning,” and the term “connection” as “the state of being connected,” or an “association; relationship.” Therefore, pursuant to the plain and ordinary meaning of the phrase “significant connection,” exclusive, continuing jurisdiction is retained under MCL 722.1202(l)(a) as long as the child and at least one parent have an important or meaningful relationship to the state. See Haynes, supra at 36.
Next, we consider how other jurisdictions have interpreted the phrase “significant connection” in provisions similar to MCL 722.1202(l)(a). See SCD Chem Distributors, Inc, supra at 378. Defendant urges this Court to adopt Oregon’s narrow interpretation of “significant connection.” In Medill, supra, the Oregon Court of Appeals found a lack of significant connection where the children were born in Germany, lived in Germany for the majority of their lives, and made only one visit to Oregon after their father moved there. Id. at 632-633, 641. The court found that the children’s short-term visit to Oregon, coupled with the father’s and his family’s presence in the state, were not the sort of “maximum rather than minimum contacts]” required to retain exclusive, continuing jurisdiction under the UCCJEA. Id. at 641 (internal quotation marks omitted). In so finding, the Medill court relied on prior Oregon cases interpreting the phrase “significant connection” in the UCCJA. Id., citing Stubbs v Weathersby, 320 Or 620, 627-628 n 4; 892 P2d 991 (1995) (stating that to establish a significant connection, there must be maximum rather than minimum contact with the state), and State ex rel Efaw v Bue, 117 Or App 477, 480-481; 844 P2d 278 (1992).
On the other hand, plaintiff urges us to adopt a broad interpretation of “significant connection.” In Grahm, supra, the California Court of Appeals held that “the original state retains continuing exclusive jurisdiction [under the UCCJEA] as long as the parent who is exercising visitation rights still lives in that state and the relationship between that parent and the child has not deteriorated to the point at which the exercise of jurisdiction would be unreasonable.” Id. at 1200. Like the Medill court, the Grahm court based its holding on a prior California case interpreting the phrase “significant connection” in the UCCJA. Id., citing Kumar v Superior Court, 32 Cal 3d 689; 186 Cal Rptr 772; 652 P2d 1003 (1982). Additionally, the Grahm court reasoned that its interpretation of “significant connection” comports with the intended application of the UCCJEA, that “ ‘[s]o long as one parent, or person acting as a parent, remains in the state that made the original custody determination, only that state can determine when the relationship between the child and the left-behind parent has deteriorated sufficiently so that jurisdiction is lost.’ ” Grahm, supra at 1198, quoting Spec-tor, Uniform child-custody jurisdiction and enforcement act (with prefatory note and comments), 32 Fam L Q 301, 340 n 81 (1998) (italics added in Grahm)-, see also UCCJEA, § 202 comment 1 (“If the relationship between the child and the person remaining in the State with exclusive, continuing jurisdiction becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist.”). The court further found that even if it adopted the Medill court’s narrow interpretation of “significant connection,” a significant connection existed in Grahm. Grahm, supra at 1199. The parties’ children were born in California and resided there for half of their life, and their father was granted specific periods of custody in California. Id.
After a comprehensive review of the cases addressing this issue, it is apparent that a majority of jurisdictions have found a significant connection under provisions similar to MCL 722.1202(l)(a) where one parent resides in the state and exercises at least some parenting time in the state. The Kansas Court of Appeals has held, in accordance with UCCJEA, § 202 comment 1, that “[t]he state where the original decree was entered retains exclusive, continuing jurisdiction over child custody determinations provided the general requirement of the substantial connection jurisdictional provisions are met, even if a child has acquired a new home state. However, exclusive, continuing jurisdiction will no longer exist if the relationship between the child and the person remaining in the state with exclusive, con tinuing jurisdiction becomes so attenuated that a court could no longer find significant connections and substantial evidence.” Ruth, supra at 421, citing Benson, supra at 585. Applying this standard, the court found that a significant connection existed where the father resided in Kansas, and the children visited Kansas two weekends each month and eight weeks during the summer. Ruth, supra at 421-422. The Kentucky Court of Appeals has adopted the exclusive, continuing jurisdiction standard articulated by the Kansas and North Dakota courts, and found that a significant connection existed where the children’s father and their sibling resided in Kentucky and visitation took place in Kentucky. Wallace v Wallace, 224 SW3d 587, 590 (Ky App, 2007).
Similarly, in Fish, supra at 226, the Georgia Court of Appeals found a significant connection where the father lived in Georgia, visitation occurred in Georgia, the children spent Spring Break and the month of July in Georgia, and the parties agreed to jurisdiction in Georgia. The court pointed out that because the mother had agreed that Georgia courts had jurisdiction to modify the original custody decree, she could not “evade that jurisdiction based on her residency in a different state, as that is the exact result that the UCCJEA was designed to prevent.” Id. In West, supra at 84, the Arkansas Supreme Court found a significant connection where the father and his relatives lived in Arkansas and the children spent at least 20 percent of their time with him in Arkansas. A New York court found a significant connection where the mother and child resided in Norway, but the father resided in New York. EB v EFB, 7 Misc 3d 423, 431; 793 NYS2d 863 (2005). The child returned to New York for several weeks at a time to visit his father pursuant to a written agreement. Id. A number of other states have applied provisions similar to MCL 722.1202(l)(a) in the same manner. See, e.g., Griffith, supra at 145-148 (finding a significant connection where the father resided in New Jersey and the child spent at least 20 percent of each year in New Jersey), citing Forlenza, supra, Horgan v Romans, 366 Ill App 3d 180; 851 NE2d 209 (2006), and Steckler v Steckler, 921 So 2d 740 (Fla App, 2006).
Considering the foregoing, we conclude that the significant connection that permits exercise of exclusive, continuing jurisdiction under MCL 722.1202(l)(a) exists where one parent resides in the state, maintains a meaningful relationship with the child, and, in maintaining the relationship, exercises parenting time in the state. Our interpretation of the phrase “significant connection” comports with that of a majority of jurisdictions, the plain and ordinary meaning of the phrase, and the overarching purpose of the UCCJEA to prevent jurisdictional disputes by granting exclusive, continuing jurisdiction to the state that entered the initial custody decree, so long as the relationship between the child and the parent residing in the state does not become so attenuated that the requisite significant connection no longer exists. See Atchison, supra at 536, 538, and UCCJEA, § 202 comment 1. Our interpretation of “significant connection” is neither so narrow that it requires “maximum rather than minimum contact” with the state, see Medill, supra, nor is it so broad that it primarily focuses on the residency of the noncustodial parent, see Grahm, supra.
In reaching this conclusion, we acknowledge defendant’s argument that a broad interpretation of “significant connection” could produce “nonsensical results,” meaning that a court of this state could retain jurisdiction where substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available in the state, but “the child continues to visit the remaining parent in the state, however rarely.” We note, however, that MCL 722.1202 safeguards against nonsensical results. Even if a court of this state determines that it has exclusive, continuing jurisdiction under MCL 722.1202(l)(a) on the basis of either significant connection or substantial evidence, the court may decline to exercise its jurisdiction if it determines that it is an inconvenient forum under MCL 722.1207. MCL 722.1202(2). The trial court did not assess whether Michigan is an inconvenient forum and defendant has not raised the issue on appeal.
As stated earlier, we find that the significant connection that permits exercise of exclusive, continuing jurisdiction is present in this case. The parties and their son, Callum, are originally from Ontario, but they lived together in Michigan for three years. When the parties separated in 2004, plaintiff remained in Michigan and defendant returned to Ontario with Callum. Defendant submitted to the jurisdiction of the Michigan courts at the time of the divorce judgment and subsequent custody rulings. Since the parties’ separation, plaintiff has maintained a meaningful relationship with Callum and regularly exercises parenting time in Michigan. Pursuant to the custody agreement, plaintiff has regular telephone contact with Callum, parenting time on alternating weekends (at least half of which is exercised in Michigan), alternating holiday parenting time, and vacation parenting time, including, but not limited to, every other spring vacation, half of Christmas vacation and, beginning in 2008, three consecutive weeks of summer vacation in Michigan.
Because we conclude that plaintiff and his minor child have a significant connection with this state, it is unnecessary to consider whether there is substantial evidence available in this state concerning the child’s care, protection, training, and personal relationships. One of the two alternative bases for retaining exclusive, continuing jurisdiction under MCL 722.1202(l)(a) is satisfied. Therefore, we reverse the trial court’s finding that it lacked jurisdiction over custody determinations in this case and remand the case for entry of an order consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
MCL 722.1204 provides temporary emergency jurisdiction if the child has been abandoned or is threatened with mistreatment or abuse.
MCL 722.1201 provides jurisdiction for an initial custody determination.
MCL 722.1203 governs the modification of custody determinations made by other states.
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MURPHY, J.
Plaintiff, Mary I. Berkeypile, appeals by leave granted the trial court’s order granting summary disposition in favor of defendant, Westfield Insurance Company, pursuant to MCR 2.116(0(10) in this action involving the interpretation of an insurance policy issued by Westfield. Plaintiff was injured in a multiple-vehicle accident. The chief question posed to us is whether, under the pertinent language of the policy, plaintiff still has the potential right to recover uninsured motorist (UM) benefits from Westfield even though plaintiff previously received, through separate litigation against three of the drivers involved in the accident, settlement proceeds exceeding the $300,000 policy limit set forth in the UM endorsement of the Westfield policy. Stated another way, the issue is whether the settlement proceeds should be offset against the total amount of damages, not yet determined, or offset against the UM policy limit of $300,000 without any consideration of possible damages, which, given the amounts of the policy limit and the settlement proceeds, would eliminate any liability on Westfield’s part under the policy. The trial court ruled, as a matter of law, that the policy limit must be reduced by the aggregate of the settlements, leaving Westfield with no obligation to pay plaintiff UM benefits. We reverse and remand, holding that there is no language in the policy supporting the trial court’s benefits-reduction ruling and that the language in the UM endorsement dictates that any offset pertains only to duplicate payments for the same noneconomic and excess economic losses. Westfield would be liable for UM benefits equal to the difference by which any overall damages award exceeds the sum of the settlement proceeds, subject to the policy limit and any allocation of fault made by the trier of fact. Because plaintiffs entitlement to coverage and damages has not yet been decided, nor have damages been assessed, and because she could conceivably receive damages exceeding the amount of the settlement proceeds, the trial court erred in granting summary disposition. We additionally reject Westfield’s arguments concerning notice of and consent to the settlements.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff sustained various injuries in a multiple-vehicle accident while riding in a company vehicle insured by Westfield under a commercial automobile policy that included an endorsement providing for UM coverage in the amount of $300,000 for each accident. Plaintiff first filed a tort action against three of the drivers involved in the accident. As a result of facilitation, one of the drivers, who had $300,000 in liability coverage, settled with plaintiff for $290,000, another driver, who had $100,000 in liability coverage, settled with plaintiff for $37,500, and the third driver, who also had $100,000 in liability coverage, settled with plaintiff for $5,000. The sum of the three settlements is $332,500 — $32,500 over the UM coverage limit. The UM endorsement defines an “uninsured motor vehicle” as including, in part, an underinsareá motor vehicle and a hit-and-run vehicle for which the driver and owner cannot be identified. With respect to the earlier litigation, it is undisputed that two of the three drivers sued by plaintiff, those with $100,000 in liability coverage on their vehicles, are considered to have been driving underinsured vehicles under the definition of “underinsured vehicle” in the UM endorsement. These vehicles would therefore qualify as uninsured motor vehicles, falling under the umbrella of the UM endorsement. Two other vehicles involved in the accident that were not the subject of the prior lawsuit constituted, according to plaintiff, hit-and-run vehicles operated and owned by unknown persons, thereby also falling within the scope of the UM endorsement.
Plaintiff thereafter filed this action against Westfield and Allied Property and Casualty Insurance Company to recover UM benefits. We note, however, that the complaint made no claim of negligence or liability with respect to the two underinsured motorists. Therefore, the demand for UM benefits is not predicated on any alleged liability of the underinsured drivers. Rather, the complaint extensively outlined the alleged negligence and liability of the two unidentified hit-and-run drivers, which allegations form the basis of the claims for UM benefits against Westfield and Allied. Additionally, plaintiffs complaint alleged that the negligence of the two unidentified motorists caused her to suffer serious physical injuries, resulting in noneconomic and economic losses. Westfield filed a counterclaim, seeking a declaratory judgment that plaintiff is not entitled to any UM benefits.
Westfield moved for summary disposition under MCR 2.116(0(10), arguing that plaintiff received well over $300,000 in settlement payments; therefore, because she had already recovered more than the policy limit for her injuries, she was no longer entitled to any UM benefits. Westfield’s position was that the UM coverage guaranteed an injured insured coverage for losses of up to $300,000 when injured by an uninsured motorist and that this included any payments received from legally responsible parties. According to West-field, the settlements reduced the $300,000 in available UM coverage, with the benefits acting as a gap filler, although there was no gap here, given that the settlements exceeded $300,000. Westfield additionally contended that plaintiff had settled with the three drivers in the previous litigation without giving Westfield written notice and without obtaining its consent to settle, thereby violating the policy and depriving plaintiff of any coverage.
In response, plaintiff maintained that the policy language allows her to recover UM benefits from West-field for the difference between the aggregate of the third-party settlements and the total amount of her damages as determined by the jury, should they exceed the settlement proceeds, up to the $300,000 policy limit. In this way, plaintiff could be made whole. Plaintiff contended that the policy merely precludes a double recovery for the same losses and that if a jury were to find damages in excess of the settlement amounts and Westfield were to pay that difference to plaintiff, there would be no duplicate recovery or payment. Plaintiff further argued that the notice and consent provisions cited by Westfield were inapplicable. The trial court accepted Westfield’s position and granted the motion for summary disposition under MCR 2.116(C)(10) with out reaching the issues of notice and consent concerning the three settlements. This Court subsequently granted plaintiffs application for leave to appeal.
II. ANALYSIS
A. STANDARD OF REVIEW AND SUMMARY DISPOSITION PRINCIPLES UNDER MCR 2.116(0(10)
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). The proper interpretation of a contract, such as an insurance policy, is a question of law and likewise subject to review de novo on appeal. Archambo v Lawyers Title Ins Corp, 466 Mich 402, 408; 646 NW2d 170 (2002).
MCR 2.116(C)(10) provides for summary disposition when there is no genuine issue regarding any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). Initially, the moving party has the burden of supporting its position with documentary evidence, and, if the moving party does so, the burden then shifts to the opposing party to establish the existence of a genuine issue of disputed fact. Quinto, 451 Mich at 362; see also MCR 2.116(G)(3) and (4). “Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in [the] pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists.” Quinto, 451 Mich at 362. If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. Id. at 363. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A court may only consider substantively admissible evidence actually proffered when deciding a motion for summary disposition under MCR 2.116(0(10). Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999).
B. PRINCIPLES GOVERNING INSURANCE CONTRACT INTERPRETATION AND UNINSURED MOTORIST BENEFITS
An insurance policy is subject to the same contract interpretation principles applicable to any other species of contract. Rory v Continental Ins Co, 473 Mich 457, 461; 703 NW2d 23 (2005). Except when an insurance policy provision violates the law or succumbs to a defense traditionally applicable under general contract law, courts “must construe and apply unambiguous contract provisions as written.” Id. “In ascertaining the meaning of a contract, we give the words used in the contract their plain and ordinary meaning that would be apparent to a reader of the instrument.” Id. at 464. A court cannot hold an insurance company liable for a risk that it did not assume. Henderson v State Farm Fire & Cas Co, 460 Mich 348, 354; 596 NW2d 190 (1999). When its provisions are capable of conflicting interpretations, an insurance contract is properly considered ambiguous. Farm Bureau Mut Ins Co of Michigan v Nikkel, 460 Mich 558, 566; 596 NW2d 915 (1999).
The no-fault act, MCL 500.3101 et seq., guarantees personal protection insurance (PIP) benefits to victims of accidents in return for restrictions on a victim’s ability to file a tort action, but it does not similarly guarantee residual-liability coverage, such as when a negligent driver is uninsured. Husted v Auto-Owners Ins Co, 459 Mich 500, 513; 591 NW2d 642 (1999). “Uninsured motorist coverage is not required by statute but may be purchased to provide the insured with a source of recovery for excess economic loss and noneconomic loss if the tortfeasor is uninsured.” Citizens Ins Co of America v Buck, 216 Mich App 217, 224-225; 548 NW2d 680 (1996). In enacting the no-fault act, the Legislature divided an injured party’s loss into two separate categories: first, loss for which the no-fault provider is liable and, second, loss for which a tortfeasor is hable. Bradley v Mid-Century Ins Co, 409 Mich 1, 62; 294 NW2d 141 (1980), overruled in part on other grounds Wilkie v Auto-Owners Ins Co, 469 Mich 41 (2003). “No-fault insurance provides security for the first type [of loss]; uninsured motorist coverage, which presupposes that the insured is entitled to recovery under the tort system, provides security for the second type [of loss] — it is offered to protect against being left with a worthless claim against an uninsured motorist.” Bradley, 409 Mich at 62.
With respect to UM benefits, our Supreme Court in Rory, 473 Mich at 465-466, made the following observations:
Uninsured motorist insurance permits an injured motorist to obtain coverage from his or her own insurance company to the extent that a third-party claim would be permitted against the uninsured at-fault driver. Uninsured motorist coverage is optional — it is not compulsory coverage mandated by the no-fault act. Accordingly, the rights and limitations of such coverage are purely contractual and are construed without reference to the no-fault act. [Citations omitted.]
C. PROCEDURAL FRAMEWORK OF ACTION
It is appropriate to give some context to our discussion by setting forth the procedural framework generally applicable to litigation involving a claim for UM benefits and multiple tortfeasors.
In an action by an insured against an insurer to recover UM benefits, the litigation necessarily proceeds, to some degree, as a suit within a suit, in which the insured must prove the underlying liability or negligence of the uninsured motorist, causation, and damages, along with establishing the contractual liability of the insurer to pay the benefits under the relevant coverage provisions of the insurance policy. See Rory, 473 Mich at 465 (stating that UM benefits are available from an insurer to the extent that a permissible third-party claim against the uninsured at-fault driver exists); see also M Civ JI 36.15 (third-party tort actions, economic and noneconomic losses) and M Civ JI 67.17 (verdict form for economic- and noneconomic-loss claims for automobile negligence with comparative negligence). This concept is reflected in § A(l) of the UM-coverage endorsement in the case at bar, which states:
We will pay all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle.” The damages must result from “bodily injury” sustained by the “insured” caused by an “accident.” The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the “uninsured motor vehicle.”
This case presents not only a situation involving a claim for UM benefits, but one in which there are also alleged multiple tortfeasors or persons at fault. MCL 600.2957(1) provides:
In an action based on tort or another legal theory seeking damages for personal injury,.. . the liability of each person shall be allocated under this section by the trier of fact and, subject to [MCL 600.6304], 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.
See also MCR 2.112(K) (addressing notice requirements when raising claims of nonparty fault).
In an action seeking damages for personal injury involving the fault of more than one person, the trier of fact determines the total amount of the plaintiffs damages and the percentage of the total fault of all persons who contributed to the injury. MCL 600.6304(1). In allocating the percentage of fault, the trier of fact must consider the nature of the conduct of each person allegedly at fault and the extent of the causal connection between the damages claimed and the conduct. MCL 600.6304(2). In general, the trial court must set the damages award in the judgment in accordance with the fault allocations rendered by the trier of fact. MCL 600.6304(3). With some exceptions, a defendant’s liability for damages is “several only and is not joint.” MCL 600.2956. “These statutory provisions, included among the provisions referred to as the ‘tort-reform statutes,’ are designed to allocate fault and responsibility for damages among multiple tortfeasors.” Kaiser v Allen, 480 Mich 31, 37; 746 NW2d 92 (2008). A tortfeasor need not pay damages in an amount greater than his or her allocated percentage of fault. Gerling Konzern Allgemeine Versicherungs AG v Lawson, 472 Mich 44, 51; 693 NW2d 149 (2005). Under the fault-allocation statutes, a finding that a plaintiff suffered, for example, $100,000 in damages and that a defendant tortfeasor was 20 percent at fault would result in a judgment against that defendant in the amount of $20,000. See Markley v Oak Health Care Investors of Coldwater, Inc, 255 Mich App 245, 253; 660 NW2d 344 (2003), quoting Smiley v Corrigan, 248 Mich App 51, 55; 638 NW2d 151 (2001). The $20,000 represents the apportionment of the loss for which the defendant is responsible.
Any damages award in this case would be subject to reduction to reflect the combined fault of the two unidentified hit-and-run motorists unless 100 percent of the fault is attributed to them.
D. DISCUSSION
Keeping in mind the principles governing appellate review, MCR 2.116(C)(10), insurance contract interpretation, and UM policies, along with the procedural framework, we now address the question concerning the proper treatment and the effect of the $332,500 in settlement proceeds in relation to both the UM coverage afforded under the policy and damages. Westfield maintains that the $300,000 in potential UM benefits must be reduced by the amount of the settlement proceeds, thereby leaving nothing owing under the policy, and plaintiff counters that Westfield must pay any damages in excess of $332,500, such as those the jury conceivably might assess at trial, subject to the $300,000 policy limit. Our analysis in resolving the dispute requires review and construction of the contractual provisions of the UM endorsement. We shall address the six sections (A through F) found in the UM endorsement in sequential order, devoting the appropriate amount of attention to each section on the basis of its relevance to the issues presented. As part of our discussion, we will also address the secondary issue concerning notice of and consent to settlement with respect to the earlier litigation, which the trial court did not address. Westfield, citing and relying on §§ A(2) and C(l) of the UM endorsement, contends that plaintiff failed to satisfy these notice and consent provisions, excluding her from recovering UM benefits under the policy. Plaintiff asserts that Westfield waived this argument or is estopped from making it because Westfield denied coverage and walked out of court-ordered facilitation. Plaintiff also argues that the sections of the UM endorsement relied on by Westfield are inapplicable.
I. SECTION A OF THE UM ENDORSEMENT
Section A of the UM endorsement addresses coverage. Section A(l), as indicated earlier, merely provides that, on proof of bodily injury caused by an accident and liability arising out of the ownership, maintenance, or use of an uninsured motor vehicle, Westfield will pay benefits for sums that the insured is legally entitled to recover as compensatory damages from the driver or owner of the uninsured motor vehicle. Thus, § A(l) obligates Westfield to pay whatever damages plaintiff would have recovered from the owner or driver of an uninsured motor vehicle.
Section A(2) provides:
With respect to damages resulting from an “accident” with a vehicle described in Paragraph b. of the definition of “uninsured motor vehicle,” we will pay under this coverage only if a. or b. below applies:
a. The limit [sic] of any applicable liability bonds or policies have been exhausted by payment of judgments or settlements; or
b. A tentative settlement has been made between an “insured” and the insurer of a vehicle described in Paragraph b. of the definition of “uninsured motor vehicle” and we:
(1) Have been given prompt written notice of such tentative settlement; and
(2) Advance payment to the “insured” in an amount equal to the tentative settlement within 30 days after receipt of notification.
The “vehicle described in paragraph b. of the definition of‘uninsured motor vehicle’ ” is, under § F(3)(b) of the UM endorsement, an “underinsured motor vehicle.” Therefore, § A(2) creates a prerequisite to recovering benefits for damages arising out of an accident with an underinsured motor vehicle. As indicated in the recitation of facts, however, plaintiffs complaint is devoid of any claim for benefits based on damages resulting from the accident as caused by the two under-insured drivers who had $100,000 liability policies. There is no allegation that either of the two underinsured drivers was negligent or liable. Rather, plaintiffs complaint focuses solely on the negligence and liability of the two unidentified hit-and-run drivers, the damages that they caused, and Westfield’s failure to com pensate plaintiff for those damages. Section A(2) is simply not implicated in this case. We therefore reject Westfield’s arguments concerning plaintiffs alleged failure to give notice of settlement that rely on § A(2). Moreover, § A(2) does not suggest that the UM endorsement requires the policy limit to be reduced by the amount of settlement proceeds. Under § A(2), if an underinsured vehicle was at issue, the insured would be precluded from receiving any UM benefits unless the insured obtained a judgment or settlement in an amount that exhausted applicable underinsured policy limits or if the insured and the insurer of the underinsured vehicle reached a tentative settlement, with West-field receiving prompt written notice of the settlement and making a timely advance payment to the insured in the amount of the tentative settlement. This language does not indicate that if the insured complied with these requirements, which would give the insured a right to UM benefits, the policy limit of the UM coverage would be reduced by the amount of the underinsured’s exhausted policy (§ A[2][a]) or by the amount of West-field’s advance payment relating to a tentative settlement (§ A[2][b]). Indeed, the language of § E(4) stating that advance payments will be separate from coverage amounts indicates the contrary, i.e., that no reduction occurs. See the discussion in part 11(D)(5) of this opinion.
2. SECTION B OF THE UM ENDORSEMENT
This section defines who qualifies as an insured under the policy. Because there is no appellate issue regarding § B, and it has no bearing on the issues presented, it is unnecessary for us to construe this section.
3. SECTION C OF THE UM ENDORSEMENT
Section C of the UM endorsement addresses the topic of exclusions, and the only language debated by the parties is in § C(l), which provides:
This insurance does not apply to any of the following:
1. Any claim settled without our consent. However, this exclusion does not apply to a settlement made with the insurer of a vehicle described in Paragraph b. of the definition of “uninsured motor vehicle” [that being an underinsured vehicle], in accordance with the procedures described in Paragraph A.2.b.
This language indicates that UM coverage does not apply to a claim settled without Westfield’s consent; however, plaintiff is seeking coverage only with respect to the two unidentified hit-and-run drivers, and there was no previous claim, or settlement, concerning these drivers. Thus, Westfield’s argument regarding the need for consent under § C(l) is not viable under the facts of this case, and § C(l) does not support in any form or fashion Westfield’s position that the settlement proceeds reduced the amount of available benefits. West-field is attempting to read § C(l) much more broadly than the meaning expressed in the words of the section. It is evident that § C(l) governs situations in which an insured settles with an uninsured driver without West-field’s consent and thereafter sues Westfield for UM benefits related to the negligence of the settling uninsured driver. That is not the situation here, and West-field will be free to pursue the unidentified drivers to recoup any damages that might be awarded to plaintiff under the UM coverage.
4. SECTION D OF THE UM ENDORSEMENT (ANTI-DUPLICATION CLAUSE)
Section D of the UM coverage endorsement, which governs the limits of insurance, is the focus of plaintiffs appeal, and it provides in pertinent part:
1. Regardless of the number of covered “autos,” “insureds,” premiums paid, claims made or vehicles involved in the “accident,” the most we will pay for all damages resulting from any one “accident” is the Limit Of Insurance for Uninsured Motorists Coverage shown in the Schedule or Declarations.
2. No one will be entitled to receive duplicate payments for the same elements of “loss” under this Coverage Form, any Liability Coverage Form, or any Medical Payments Coverage Endorsement attached to this Coverage Part.
We will not make a duplicate payment under this Coverage for any element of “loss” for which payment has been made by or for anyone who is legally responsible.
Section D(l) merely indicates that the most that Westfield would have to pay under the UM endorsement is the policy limit of $300,000, and plaintiff makes no claim that Westfield could be obligated to pay her more than $300,000 in UM benefits.
Section D(2) precludes an insured from receiving, and indicates that Westfield will not make, duplicate payments for the same elements of loss under multiple coverages under the policy or duplicate payments for any element of loss for which a legally responsible party has made a payment to the insured. Although the phrase “element of loss” is not defined anywhere in the policy, the term “loss” is defined in the policy’s general definition section as “direct and accidental loss or damage.” The word “element” is not defined in the policy, but it is defined in the dictionary as “a component or constituent of a whole or one of the parts into which a whole may be resolved by analysis.” Random House Webster’s College Dictionary (2001). Taking the policy definition of “loss” together with the dictionary definition of “element,” we conclude that “element of loss” refers to a component of damages. In a personal injury case involving a motor vehicle accident, damages can be composed of economic damages covered by PIP benefits (generally known as first-party benefits), excess economic damages not covered by PIP benefits, and noneconomic damages, which would include recovery for such items as past and future pain and suffering, inconvenience, physical impairment or disfigurement, mental anguish, fright and shock, denial of social pleasures and enjoyments, embarrassment, and humiliation. See MCL 500.3107, 500.3108, and 500.3135; Bradley, 409 Mich at 62; Buck, 216 Mich App at 224-225; M Civ JI 35.01 et seq., 36.01 et seq., 50.01 et seq., and 67.01 et seq.
The word “duplicate” is also not defined in the policy, but the dictionary definition of the term, when used as an adjective, is “exactly like or corresponding to something else” or “consisting of or existing in two identical or corresponding parts; double.” Random House Webster’s College Dictionary (2001).
With these definitions in mind, the only reasonable construction of § D(2) is that the language prohibits an insured from receiving double payments for the same noneconomic and excess economic losses or damages; double-dipping (being paid twice for the same injury) is barred, preventing overcompensation for losses. Because plaintiff has already received PIP benefits for economic damages, excess economic damages and non-economic damages are the damages at issue. See Bradley, 409 Mich at 62; Buck, 216 Mich App at 224-225. Further, the earlier tort action against the three drivers that led to settlement necessarily entailed, at most, noneconomic and excess economic damages, given the structure and nature of the no-fault act. See MCL 500.3135.
We are unable to discern from the record whether the settlement proceeds were meant to compensate plaintiff for excess economic losses, noneconomic losses, or a combination of the two, let alone place a dollar amount on each form of damages. Assuming liability, the jury would generally make separate determinations of the amount of excess economic damages and noneconomic damages. See M Civ JI 67.17. Because the settlement agreements contained no allocation of loss between excess economic damages and noneconomic damages; because plaintiff does not argue that the element of loss, i.e., component of damages, should be categorized in increments beyond a single component of noneconomic damages/excess economic damages; and because Westfield’s benefits-reduction argument also implicitly groups noneconomic damages/excess economic damages as the relevant element of loss, we shall treat the settlement proceeds as a lump-sum element of loss for comparison with a potential jury award, which shall also be treated as a lump sum. Thus, if the jury ultimately awards plaintiff $332,500 or less, regardless of how the jury apportions excess economic damages and noneconomic damages in its verdict, Westfield cannot be held hable for any UM benefits under the policy because that would result in duplicate or double payments for the same element of loss (double-dipping) and overcompensation of the plaintiffs injuries. However, should plaintiff establish liability and the jury return a verdict finding damages in an amount in excess of $332,500, regardless of how the damages are allocated between excess economic damages and noneconomic damages, a judgment ordering Westfield to pay UM benefits for some or all of the excess within the confines of the policy limit would not offend § D(2) because a duplicate or double recovery would not occur. Westfield would have to pay the difference between the $332,500 in settlement proceeds and the total damages award, up to the policy limit of $300,000 and subject to any fault allocation. Plaintiff would not be receiving double payments for the same element of loss, but would instead be receiving an award making her whole without duplication. Accordingly, merely because plaintiff has received more than $300,000 in settlement proceeds does not mean that a judgment against Westfield would involve duplicate payments. Rather, only if a jury determines that plaintiff is entitled to $332,500 in damages or less can the trial court definitely declare that West-field is not liable for any amount under the insurance contract because to so hold it liable would result in plaintiffs receiving a duplicate payment for the same element of loss. We find no language in § D(2) that can be construed to support Westfield’s position that the $300,000 in available UM benefits must be reduced by the amount of the settlement proceeds.
Westfield appears to suggest that, because plaintiff received settlement proceeds for both excess economic damages and noneconomic damages, she would be paid a second time for those damages if a damages award were assessed against Westfield; therefore, there would be a violation of the anti-duplication language in § D(2). There is, however, a difference between a second payment and a duplicate or double payment, the former not necessarily entailing overcompensation for the same loss and the latter entailing overcompensation and double recovery for the same loss. Westfield’s position would also be contrary to its own recognition that if settlement proceeds are less than the policy limit, further payments under the UM policy might be appropriate. Moreover, Westfield’s interpretation of § D(2) is inconsistent with numerous cases from other jurisdictions in which courts were confronted with comparable anti-duplication language.
In Grayer v State Farm Ins Co, 611 So 2d 762, 764 (La App, 1992), the Louisiana Court of Appeal distinguished anti-duplication clauses from reduction clauses, ruling:
In our opinion the above policy language[ ] is different from the language in [the cases discussing clauses]. In those cases the policies provide that “the amount pay able . .. shall be reduced by an amount equal to total limits of liability” ... and “any amounts .. . payable ... shall be reduced by all sums paid.In each instance the language directs that the coverage (i.e. amounts payable) are to be reduced by either the liability coverage available or the amounts actually paid. In the instant case the language prohibits duplicate payments. It does not provide for a reduction in coverage, only that the insured will not be paid twice for the same injuries. This is different than reducing the available coverage. For example, if John Jackson’s injuries are worth $100,000.00, he should be entitled to receive the full UM coverage available, i.e. $20,000.00, which would give him a total recovery of $28,500.00[, considering the earlier $8,500 payment from Allstate], However, if his total injuries are $5,000.00, he would not receive any UM payment from State Farm because he has already been full [sic] paid (i.e. the $8,500.00 Allstate paid) for his injuries. That is the purpose of State Farm’s policy language, to prevent duplicate payments, not reduce coverage. [Emphasis in original; citations omitted; deletions within quotations in original.]
The Nevada Supreme Court similarly distinguished anti-duplication clauses, comparable to the one in our case, from reduction clauses in insurance policies. St Paul Fire & Marine Ins Co v Employers Ins Co of Nevada, 122 Nev 991; 146 P3d 258, 263 (2006) (holding that the anti-duplication clause merely limited the coverage available to an injured party to elements of loss not already covered by a workers’ compensation insurer, whereas the reduction clause required reduction in the amount of insurance coverage available for amounts paid in workers’ compensation benefits); see also Greenfield v Cincinnati Ins Co, 737 NW2d 112, 117-118 (Iowa, 2007).
In Fischer v Midwest Security Ins Co, 268 Wis 2d 519, 531-533; 673 NW2d 297 (Wis App, 2003), the Wisconsin Court of Appeals, also addressing a comparable anti-duplication clause, rejected the insurer’s argument that recovery by the plaintiffs pursuant to an underinsured vehicle endorsement would constitute a duplicate payment when the plaintiffs had already recovered the maximum limit under their UM coverage. The court explained:
A plain reading of [the anti-duplication clause] leads one to expect that a “duplicate payment” would be one where both a tortfeasor and an insurer compensate the insured for the same element of loss. [The provision] guards against profiting beyond the damages actually incurred. [Id. at 532.]
We are addressing an anti-duplication clause and not a reduction-in-benefits clause; therefore, we agree with plaintiff that § D(2) only precludes her from a double recovery for the same loss.
5. SECTION E OF THE UM ENDORSEMENT
Section E changes the conditions of the UM coverage. The first paragraph of § E(4) plays a prominent role in, and is the focus of, Westfield’s arguments.
Section E(4) addresses the transfer of rights of recovery against others to Westfield. Section E(4) provides, in part, that if Westfield “make[s] any payment and the ‘insured’ recovers from another party, the ‘insured’ shall hold the proceeds in trust for [Westfield] and pay [Westfield] back the amount [it has] paid.” This language is somewhat more difficult to decipher than the language in § D(2). We conclude, however, that the language in § E(4) has no bearing on the issue presented.
Under § E(4), if Westfield had made an advance payment to plaintiff to the full extent of the policy coverage, $300,000, before plaintiff received any settlement proceeds, once plaintiff received the settlement payments, the contractual provision would require plaintiff to return the $300,000 advance payment to Westfield, leaving plaintiff with $332,000 in settlement proceeds and leaving Westfield without a penny lost. That is the full import of the language at issue in § E(4). It does not suggest that the policy limit would be permanently exhausted under our hypothetical example and that plaintiff could no longer make a claim for UM benefits should she have actual damages exceeding the amount of the settlement proceeds. While one might, through excessive and implicit extrapolation of the contractual language, reach a contrary conclusion, it would offend the plain language of § E(4) to equate it to a reduction-of-benefits clause. Ultimately, § E(4) plays no role in analyzing this case. Rather, § E(4) is simply a mechanism by which Westfield can recoup advance payments, which would never total more than the $300,000 policy limit, if the insured has received any amount up to $300,000 from third parties. It does not answer the question of what occurs in a situation in which the insured suffers damages beyond the proceeds received from legally responsible parties; rather, § D(2) answers that question. The language in § E(4) cannot reasonably be interpreted as requiring a dollar-for-dollar reduction in the policy limit and available benefits equivalent to the settlement proceeds received by plaintiff when damages are greater in amount than the settlement proceeds.
Moreover, “[c]ourts should attempt to harmonize all parts of a contract of insurance so as to give effect to each clause contained therein.” Murphy v Seed-Roberts Agency, Inc, 79 Mich App 1, 8; 261 NW2d 198 (1977), citing Jackson v British America Assurance Co, 106 Mich 47; 63 NW 899 (1895). In Associated Truck Lines, Inc v Baer, 346 Mich 106, 110; 77 NW2d 384 (1956), our Supreme Court, quoting Laevin v St Vincent de Paul Society of Grand Rapids, 323 Mich 607, 609-610; 36 NW2d 163 (1949), stated:
“ ‘ “It is a cardinal principle of construction that a contract is to be construed as a whole; that all its parts are to be harmonized so far as reasonably possible; that every word in it is to be given effect, if possible; and that no part is to be taken as eliminated or stricken by some other part unless such a result is fairly inescapable.” ’ ”
Furthermore, in Wilkie, 469 Mich at 50, the Michigan Supreme Court, construing an insurance policy, concluded that any perceived ambiguity in a certain paragraph of the policy was eliminated by the language in later paragraphs, which must all be read together.
To interpret § E(4) as standing for the proposition argued by Westfield, that the policy benefits must be reduced by the amount of the settlement proceeds, would run afoul of these contract construction principles. When § E(4) is read in conjunction and harmony with § D(2), it becomes abundantly clear that § E(4) is, in essence, precluding a double recovery for the same injury, just like § D(2), by making an insured return up to $300,000 in advance payments to Westfield when the insured subsequently recovers that amount from another party. As indicated above, § D(2) does not allow an insured to receive duplicate payments for the same element of loss, but if § E(4) is construed as suggested by Westfield, the anti-duplication principle of § D(2) is rendered meaningless. Section D(2) necessarily stands for the proposition that an insured is entitled to UM benefits unless an award of benefits would result in a double recovery for the same loss. If § E(4) is read to mean that any payment by a legally responsible party to the insured is setoff against or reduces the $300,000 in coverage, it would directly conflict with § D(2) because such an interpretation would indicate that an insured may not be entitled to UM benefits even if a double recovery failed to occur. As argued by plaintiff, it is § D, not § E, that governs the limit of the UM benefits.
Our interpretation still gives meaning to § E(4) and results in that section complementing § D(2). Section D(2) prevents an insured from receiving a double recovery from Westfield on a loss for which compensation was already received from a legally responsible party. And § E(4) demands that the insured return any payments advanced by Westfield under the UM endorsement should the insured recover a payment covering the loss for which Westfield had made the advanced payment, subject to a subsequent claim for UM benefits should damages exceed the settlement proceeds.
We also call attention to additional language in § E(4) concerning damage caused by an accident with an underinsured vehicle, which provides:
If we advance payment to the “insured” in an amount equal to the tentative settlement within 30 days after receipt of notification:
a. That payment will be separate from any amount the “insured” is entitled to recover under the provisions of Uninsured Motorists Coverage; and
b. We also have a right to recover the advance payment. [Emphasis added.]
This language indicates that if an insured reached a tentative settlement with an underinsured driver for $50,000 and gave the appropriate notice to Westfield, and if Westfield then made an advance payment of $50,000 to the insured, Westfield would be entitled to repayment of the $50,000 when the settlement was paid to the insured, but the insured would still be able to recover the full and separately treated $300,000 under the UM coverage, assuming liability and a sufficient amount of damages, because, in essence, Westfield, rather than the insured, received the $50,000 from the third party. In the end, the insured would have recovered $350,000 ($300,000 under the UM coverage, $50,000 settlement proceeds, $50,000 advanced payment from Westfield, less $50,000 repaid to Westfield). Thus, the $50,000 is not an offset that reduces the $300,000 in UM coverage, but represents compensation in addition to the $300,000 in UM benefits. This is consistent with our interpretation of the first paragraph in § E(4) and conflicts with the underlying theme of Westfield’s argument.
6. SECTION F OF THE UM ENDORSEMENT
Section F governs the definition of terms used in the UM endorsement that we referred to earlier in this opinion. There is no need to further explore this section.
7. MICHIGAN CASES AND REDUCTION CLAUSES
Contrary to Westfield’s argument, the insurance policy does not call for a reduction in benefits payable under the UM endorsement in an amount equal to any payments made by legally responsible parties. The Michigan cases holding that a benefit reduction occurs when payments are made by legally responsible parties are easily distinguished, given the clear reduction language in the policies.
In Schroeder v Farmers Ins Exch, 165 Mich App 506, 508; 419 NW2d 9 (1987), the insurance policy provided: “The amount of bodily injury coverage provided under the Uninsured Motorists Coverage of this policy shall be reduced by the amount of any other bodily injury coverage available to any party held to be liable for the occurrence.”
In Parker v Nationwide Mut Ins Co, 188 Mich App 354; 470 NW2d 416 (1991), the plaintiff’s decedent died in a car crash, and the plaintiff filed suit against and settled with the operator of the vehicle that struck the decedent and the dramshop that served the driver in the amounts of $20,000 and $160,000, respectively. The decedent also had a no-fault policy with the defendant insurer that included endorsements providing UM and underinsured motorist coverage equaling $100,000, and the plaintiff filed suit against the insurer after the settlements were entered. This Court affirmed the trial court’s order granting summary disposition in favor of the insurer on the basis of a setoff provision, which provided that the
limits of this coverage and/or any amounts payable under this coverage will be reduced by:
a. any amount paid by or for any liable parties. [Id. at 355.]
This Court concluded:
Because the total amount received by plaintiff from both the driver and the dramshop exceeded the policy coverage, the trial court did not err in finding that defendant was entitled to summary disposition pursuant to the setoff provision of the underinsured motorist endorsement. [Id. at 357.]
Here we do not have a comparable setoff or reduction provision, and the policy militates against any finding that a benefit setoff or reduction is proper.
In Erickson v Citizens Ins Co, 217 Mich App 52; 550 NW2d 606 (1996), and Mead v Aetna Cas & Surety Co, 202 Mich App 553; 509 NW2d 789 (1993), this Court addressed the question whether proceeds received by the insured from third parties should be offset against the total amount of damages or against the amount of the UM coverage. Both panels held that such proceeds should be offset against the coverage limit and not the total amount of damages pursuant to the clear and unambiguous language of the insurance policies. Erickson, 217 Mich App at 55, Mead, 202 Mich App at 555-556. The insurance policy language at issue in Erickson provided:
Any amounts otherwise payable for damages under this coverage shall be reduced by all sums:
1. Paid because of the “bodily injury” by or on behalf of persons or organizations who may be legally responsible. [Erickson, 217 Mich App at 54.]
The language at issue in Mead was essentially identical to that in Erickson. Mead, 202 Mich App at 555.
Again, we do not have comparable reduction or setoff language here. Section E(4) and the anti-duplication language found in § D(2), which precludes a double recovery for the same element of loss, as well as the contract in general, do not state in any form or fashion that the amount payable under the coverage must be reduced by sums paid because of bodily injury by legally responsible parties. If this is what Westfield intended, expressing this intent in the policy was not accomplished.
In sum, we hold that Westfield’s liability and obligations under the UM coverage depend on the extent of any damages found by the jury, if indeed the jury rules in plaintiffs favor. Accordingly, the trial court erred in granting summary disposition in favor of Westfield.
III. CONCLUSION
We hold that there is no language in the policy supporting the trial court’s benefits-reduction ruling and that the language in the UM endorsement dictates that any offset pertains only to duplicate payments for the same noneconomic and excess economic losses. Westfield would be liable for UM benefits equivalent to the difference by which any overall damages award exceeds the sum of the settlement proceeds, subject to the policy limit and any allocation of fault determined by the trier of fact. Because plaintiffs entitlement to coverage and damages has not yet been decided, nor damages assessed, and because she could conceivably receive damages exceeding the amount of the settlement proceeds, the trial court erred in granting summary disposition. Finally, Westfield’s notice and consent arguments fail because the sections of the UM endorsement cited are inapplicable under the facts of the case.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
The police report indicated that the accident involved six moving vehicles.
Westfield states that these two vehicles may have been “uninsured” and does not concede the point, but it proceeds by assuming that they were uninsured for purposes of summary disposition, given that the evidence must he viewed in a light most favorable to plaintiff.
Allied is plaintiffs own automobile insurance carrier, and the action against Allied remains pending. Plaintiff has received personal protection insurance benefits from Allied.
We shall discuss the specific policy provisions at issue in our analysis.
By way of example, had plaintiff received $200,000 in settlement proceeds, Westfield would be agreeable to paying plaintiff $100,000 in UM benefits, assuming no notice and consent issues concerning the settlements and that plaintiff was legally entitled to recover compensatory damages from the uninsured motorists.
In Bradley, 409 Mich at 62, our Supreme Court noted that the purpose of the no-fault act is to give a contractual right of action against a person’s own insurer for wage loss and medical expenses, while a “tort action for non-economic and excess economic loss was preserved in cases of severe loss.”
Section F(3)(b) provides that an
underinsured motor vehicle is a land motor vehicle ... for which the sum of all liability bonds or policies at the time of an “accident” provides at least the amounts required by the applicable law where a covered “auto” is principally garaged but that sum is less than the Limit of Insurance of this coveraget]
The complaint stated that, “[a]s a direct and proximate result of the negligence of the unknown operators of the minivan and black pick-up truck,” plaintiff sustained injuries and damages. In the count directed specifically at Westfield, the complaint alleged:
30. That pursuant to the terms of the policy of insurance Plaintiff is entitled to uninsured motorist coverage since two of the vehicles causing the accident were driven by unidentified drivers and the vehicle was uninsured.
31. [Described the alleged negligence of the pick-up truck’s driver]
32. [Described the alleged negligence of the minivan’s driver]
33. That demand was made upon [Westfield] to pay damages caused by the unidentified operators of the minivan and black pick-up truck to Plaintiff pursuant to the provisions of the insurance policy and specifically those provisions protecting her from uninsured motorists.
34. That more than 30 days have elapsed and [Westfield] has refused, failed and/or otherwise breached its contractual duty to indemnify Plaintiff for her injuries and damages caused by the unidentified operators of the minivan and black pick-up truck.
We reject the argument that § A(2) applies merely because the accident factually involved two vehicles that fall within the definition of “uninsured motor vehicle” where the coverages applicable to them were less than the limits of insurance under the UM coverage. Plaintiff does not seek to recover under the UM coverage for any bodily injury caused by the drivers of the two underinsured vehicles. Because plaintiff does not seek coverage under § A(l) with respect to these drivers, the limitations on that coverage provided in § A(2) are irrelevant.
Section A(3) provides that “[a]ny judgment for damages arising out of a ‘suit’ brought without our written consent is not binding on us.” There was no “judgment for damages,” and neither party relies on this provision.
We note that the first paragraph in § D(2) speaks of the “same elements of ‘loss,’ ” while the second paragraph refers to “any element of ‘loss.’ ” (Emphasis added.) Ultimately, this difference in drafting does not affect our analysis.
If a term in an insurance policy is not defined in the policy itself, this Court gives the word its commonly understood meaning, which can be accomplished by resort to its dictionary definition. Brown v Farm Bureau Gen Ins Co of Michigan, 273 Mich App 658, 662; 730 NW2d 518 (2007).
PIP benefits are payable for “[allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation,” three years of work loss (with a cap on the monthly amount), expenses reasonably incurred in obtaining ordinary and necessary replacement services for a three-year period (with a cap on the daily amount), and survivor loss. MCL 500.3107 and 500.3108.
MCR 2.516(D)(2) provides:
Pertinent portions of the instructions approved by the Committee on Model Civil Jury Instructions or its predecessor committee must be given in each action in which jury instructions are given if
(a) they are applicable,
(b) they accurately state the applicable law, and
(c) they are requested by a party.
However, the model instructions do “not have the force and effect of a court rule, and MCR 2.516(D) “does not limit the power of the court to give additional instructions on applicable law not covered by the model instructions.” MCR 2.516(D)(1) and (4).
Although stated in a different context, our Supreme Court has noted: “Because the purpose of compensatory damages is to make an injured party whole for losses actually suffered, the amount of recovery for such damages is thus limited by the amount of the loss.” Rafferty v Markovitz, 461 Mich 265, 271; 602 NW2d 367 (1999).
M Civ JI 67.17 is the verdict form generally applicable to automobile tort claims for economic and noneconomic damages and indicates that only excess economic damages are recoverable if the tortfeasor was insured and that any economic damages are recoverable if the tortfeasor was uninsured. This is consistent with MCL 500.3135(3), which provides that
tort liability arising from the ownership, maintenance, or use ... of a motor vehicle with respect to which the security required by [MCL 500.3101] was in effect is abolished except as to:
(c) Damages for allowable expenses, work loss, and survivor’s loss ... in excess of the daily, monthly, and 3-year limitations contained in [the PIP statutes]. [Emphasis added.]
At first glance, our system requiring the allocation of fault, as discussed earlier, could be viewed as complicating matters in this case. By way of example, while still considering the settlement disbursement of $332,500, if a jury were to find that plaintiff suffered $500,000 in damages and attributed 20 percent fault to the unidentified motorists, only a $100,000 judgment could be entered against Westfield. We wish to make abundantly clear that in determining whether a duplicate payment would be made in such a situation, the trial court must consider the overall damage total ($500,000), not the fault-allocated amount ($100,000), and compare it against the $332,500 in settlement proceeds. Even though the $100,000 fault-allocated damages judgment would he less than the settlement proceeds, a judgment ordering Westfield to pay $100,000 would not result in plaintiffs receiving a double recovery for her losses or a windfall, which is what § D(2) prohibits. Plaintiff would not be overcompensated because she would be paid a grand total of $432,500 (settlement proceeds of $332,500 plus $100,000 for the allocated judgment), while suffering a $500,000 loss. Westfield would still retain the benefit of not having to pay the remaining $67,500 in losses because of fault allocation.
We acknowledge that there are some cases that support Westfield’s position, e.g., Imre v Lake States Ins Co, 803 NE2d 1126 (Ind App, 2004); however, we find the reasoning in those cases unpersuasive.
The policy language in Grayer, 611 So 2d at 764, provided that “no one will be entitled to receive duplicate payments under this coverage for the same element of loss which were paid because of the bodily injury or property damage by or on behalf of persons or organizations who may be legally responsible.” This language is virtually identical to the language in the UM endorsement at issue here.
By way of another example, if an insured suffered $500,000 in damages, with a UM policy limit of $300,000, received settlement proceeds amounting to $300,000, and there was no issue of fault allocation, § D would dictate that the insured could recover $200,000 in UM benefits, but under Westfield’s interpretation, § E(4) would dictate that no UM benefits are recoverable. Under Westfield’s construction, § D serves no purpose, as it would be swallowed up by § E(4).
The Erickson panel did not allow a complete offset against the policy limit, concluding that some of the proceeds provided to the plaintiff were not made “by or on behalf of persons or organizations who may be held legally responsible.” Erickson, 217 Mich App at 55 (emphasis omitted). | [
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Per CURIAM.
Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b(l)(a), and was sentenced as a second-offense habitual offender, MCL 769.10, to 10 to 40 years’ imprisonment. He appeals as of right. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
At trial, a detective read into evidence from an official court document that stated that defendant was previously sentenced for second-degree criminal sexual conduct. Part of the evidence relating to the prior crime indicated that defendant had engaged in sexual contact with a person under the age of 13. That prior conviction occurred in October 1987, nineteen years before this trial. Defendant objected to the entry of the prior-conduct evidence.
Defendant argues on appeal that the prior-conduct evidence should not have been admitted under a new Michigan statute, MCL 768.27a, because the Legislature was not authorized to enact such a statute and because it violated the Ex Post Facto Clause of the United States Constitution. Defendant’s arguments on these issues must fail in light of two recent decisions from our Court, People v Pattison, 276 Mich App 613; 741 NW2d 558 (2007), and People v Watkins, 277 Mich App 358; 745 NW2d 149 (2007), lv gtd 480 Mich 1167 (2008).
An issue dealing with the admission of evidence is reviewed de novo when it involves a preliminary question of law, such as whether a statute or rule precludes the admissibility of evidence. Pattison, supra at 615.
MCL 768.27a(l) provides that “in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.” This statute was effective on January 1, 2006, and allows evidence to be admitted that previously may have been inadmissible under MRE 404(b). Pattison, supra at 619.
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
On the basis of constitutional provisions relating to the separation of powers, “[o]ur Supreme Court has exclusive rulemaking authority with respect to matters of practice and procedure for the administration of our state’s courts.” Watkins, supra at 363. The Legislature may not enact a statute that is purely procedural and relates only to the administration of judicial functions. Pattison, supra at 619. The Legislature’s enactment of MCL 768.27a does not violate the separation of powers because it is a substantive rule of evidence and “does not principally regulate the operation or administration of the courts.” Pattison, supra at 619; Watkins, supra at 365.
A violation of the Ex Post Facto Clause of the constitution occurs when a law “alters the legal rules of evidence, and receives less, or different, testimony than the law required at the time of the commission of the offence in order to convict the offender.” Pattison, supra at 618, citing Calder v Bull, 3 US (3 Dall) 386, 390; 1 L Ed 648 (1798). MCL 768.27a does not violate the Ex Post Facto Clause because the altered standard for admission of evidence does “not lower the quantum of proof or value of the evidence needed to convict a defendant.” Pattison, supra at 619. While evidence may now be allowed that previously would have been inadmissible under MRE 404(b), the standard for obtaining a conviction has not changed. Id.
Defendant also argues that the minimum sentence imposed was too high in light of the language of the second-offense statute and in light of his poor health.
An issue of statutory interpretation is reviewed de novo. People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003).
Our primary task in construing a statute is to discern and give effect to the intent of the Legislature. The words contained in a statute provide us with the most reliable evidence of the Legislature’s intent. ... If the wording or language of a statute is unambiguous, the Legislature is deemed to have intended the meaning clearly expressed, and we must enforce the statute as written. [People v Hill, 269 Mich App 505, 514-515; 715 NW2d 301 (2006) (citations omitted).]
Michigan’s statute concerning a second or subsequent offender under the criminal sexual conduct portion of the code states that “[i]f a person is convicted of a second or subsequent offense under section 520b, 520c, or 520d the sentence imposed under those sections for the second or subsequent offense shall provide for a mandatory minimum sentence of at least 5 years.” MCL 750.520Í. That provision applies to convictions where the actor was previously convicted of a criminal sexual offense. MCL 750.520f(2).
A Michigan statute concerning the sentencing guidelines states that “[i]f a statute mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections, the court shall impose sentence in accordance with that statute. Imposing a mandatory minimum sentence is not a departure under this section.” MCL 769.34(2)(a).
The plain language of the second-offense statute mandates that the minimum sentence for a second offense is to be at least five years. MCL 750.520Í. The unambiguous language does not require exactly five years; rather, it states at least five years. The guidelines statute, which requires a trial court to impose a minimum sentence if one is mandated by statute, also states that the minimum sentence shall not exceed h of the statutory maximum sentence. MCL 769.34(2)(b). The statutory maximum allowed in this case is a term of life. MCL 750.520b(2).
Because defendant’s 10-year minimum sentence is “at least” five years, it satisfies the requirements of the second-offense statute. Further, the 10-year minimum sentence does not exceed h of the statutory maximum life sentence. MCL 769.34(2)(b). The sentence satisfies the requirements of the sentencing guidelines and is not a departure from the recommended minimum range.
Affirmed. | [
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PER CURIAM.
This matter returns to this Court on remand from our Supreme Court for consideration as on leave granted. 477 Mich 1017 (2007). Defendant employer and its insurer appeal a decision of the Workers’ Compensation Appellate Commission (WCAC), which affirmed with modifications an order of the magistrate. The magistrate ordered (1) reimbursement for all reasonable expenses incurred by plaintiffs care providers from September through November 2003; (2) reimbursement for their mileage and attendant care; (3) reimbursement to Blue Cross Blue Shield (Blue Cross); (4) an attorney fee in an amount constituting 30 percent of the total of the medical bills ordered to be paid; and (5) a penalty for failing to pay the medical bills in a timely manner. We affirm.
I. FACTS
Plaintiff, Richard E. Harvlie, sustained a burn injury to his right leg while in the course of his employment as a welder for defendant employer, Jack Post Corporation. The magistrate granted plaintiff an open award of wage loss benefits and reasonable and necessary medical benefits. Thereafter, Blue Cross filed an application for mediation or hearing, seeking reimbursement for medical expenses paid in association with the treatment of plaintiffs injury. Plaintiff then filed an application for mediation or hearing, representing that since the magistrate granted the open award, defendant had “refused to pay for reasonable and necessary medical expenses.” Plaintiff sought “all benefits afforded by the [Worker’s Disability Compensation] Act, along with actual costs and attorney fees in securing these benefits” and the “imposition of the penalty provisions of the Act for failure to make payments in a timely matter [sic] as prescribed by Statute, and in violation of the Order of [the magistrate].”
Following trial on the merits of the petitions, the magistrate granted the reimbursement sought by both Blue Cross and plaintiff. The magistrate set the rate for reimbursement to plaintiffs relatives for nursing care at $12.50 an hour. He based this rate on the earnings of plaintiffs sister-in-law at her regular work, which he found was approximately the same hourly rate as a certified nurse’s assistant.
The magistrate also found that plaintiffs counsel was entitled to an attorney fee under MCL 418.315(1) with regard to the unpaid medical bills. The magistrate agreed with plaintiffs counsel that “the bills would not have been paid but for the fact that he filed a petition.” Moreover, because the bills were not paid within 30 days of their receipt, the magistrate ordered defendants to pay a $1,500 penalty.
Defendants appealed to the WCAC, challenging the magistrate’s award of attorney fees. The WCAC rejected each of defendants’ challenges to the fee award. First, the WCAC determined that, when the last two sentences of § 315(1) are read together, “it becomes clear that the prorated attorney fee referred to should be paid by the employer/carrier and not the health care provider.” The WCAC conceded that the authority to award an attorney fee against the employer or its insurance carrier would not automatically occur in all cases where there is an award of medical benefits; rather, the “plaintiff bears the burden of proving that the employer/carrier is in fact guilty of that breach, in order to have the magistrate award those attorney fees.” The WCAC then opined that, in this case, where the medical bills were paid before the second trial but not before plaintiff went to the expense of hiring an attorney and filing an application, the magistrate did not abuse his authority in ordering defendant employer to pay plaintiffs attorney fees. The WCAC observed that “[i]t certainly does not appear that defendant was routinely paying medical bills, until after plaintiff sought help from the workers’ compensation agency.”
Second, the WCAC rejected defendants’ argument that the doctrine of res judicata barred any award of attorney fees for medical expenses incurred before the first trial because plaintiff could have sought, but did not seek, an attorney fee award for those expenses at the time of the first trial. The WCAC opined:
What defendants fail to understand (or acknowledge) is, that it is not the compensability of the medical bills, but the ongoing failure, neglect or refusal to pay, which allows the magistrate the discretion to order the attorney fees. If plaintiff were seeking an attorney fee for medical benefits which had not been timely paid before the first trial, but had been promptly paid upon the magistrate’s order, res judicata would be a bar to such an award. Here, defendants are ordered to pay an attorney fee as a result of their failure to pay medical bills, which were ordered after the first trial.
Third, the WCAC rejected defendants’ assertion that the magistrate miscalculated the amount on which he assessed an attorney fee by including some of the bills paid by Blue Cross. After reviewing plaintiffs exhibits “in detail,” the WCAC concluded that “[w]hile it is remotely possible that these are the same charges, defendants have simply not persuaded us that that is the case.”
Fourth, the WCAC rejected defendants’ assertion that there was no sound public policy reason for awarding an attorney fee, even for unpaid medical benefits, when a claimant’s attorney has adequate motivation to pursue a claim on behalf of the claimant. The WCAC agreed with plaintiff that defendants overlooked one of the underlying purposes of the attorney fee provision, which is “to deter employers from breaching their statutory duty to provide medical treatment to injured workers.” The WCAC added, “Immunizing employers from liability for attorney fees whenever the claimant or a third-party payer can afford to hire an attorney would hardly give employers an incentive to pay legitimate bills in a timely manner.” The WCAC opined that the magistrate did not abuse his discretion when he awarded attorney fees in this case because a rational basis for the award existed in the record: “Here there is ample evidence that the employer had notice of outstanding medical bills, but did not pay them until after plaintiff sought relief from the Workers’ Compensation Agency.”
Defendants now appeal.
II. STANDARD OF REVIEW
Our review of the WCAC’s decision is solely limited to ensuring the integrity of the administrative process. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 701; 614 NW2d 607 (2000). “As long as there exists in the record any evidence supporting the WCAC’s decision, and as long as the WCAC did not misapprehend its administrative appellate role (e.g., engage in de novo review; apply the wrong rule of law), then the judiciary must treat the WCAC’s factual decisions as conclusive.” Id. at 703-704. This Court continues to exercise de novo review of questions of law involved in any final order of the WCAC. Id. at 697 n 3.
III. ANALYSIS
A. ATTORNEY FEES
The WCAC correctly determined that MCL 418.315(1) authorized the magistrate to order defendant employer to pay plaintiffs attorney fees. MCL 418.315(1) contains, in part, three pivotal sentences as follows:
[1] The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed....
[2] If the employer fails, neglects, or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by the employee, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the worker’s compensation magistrate.
[3] The worker’s compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee.
Here, the WCAC majority’s construction of § 315(1) is consistent with a harmonious reading of the last two sentences of § 315(1). The third sentence of § 315(1) provides that “[t]he worker’s compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee.” Standing alone, this sentence contains ambiguity because it fails to identify whom the magistrate may order to pay the attorney fees. This sentence is not to be construed in isolation, however, but instead must be read in the context of the whole statute and harmonized with the statute’s other provisions in a manner that effectuates the purpose intended by the Legislature. Macomb Co Prosecutor v Murphy, 464 Mich 149, 159-160; 627 NW2d 247 (2001); Ferguson v Pioneer State Mut Ins Co, 273 Mich App 47, 52; 731 NW2d 94 (2006). The second sentence of § 315(1) addresses the consequences of an employer’s failure to pay medical expenses and authorizes a magistrate to order the employer to reimburse either the injured claimant or the claimant’s medical insurance provider for the reasonable medical expenses incurred. This second sentence addresses the consequences to a nonpaying employer that “fails, neglects, or refuses” to provide reasonable medical services. The WCAC properly construed the final two sentences of § 315(1) and provided a unity of purpose for this statute.
Further, the construction given § 315(1) by the WCAC is consistent with the construction given the provision by several panels of this Court, albeit in obiter dicta. See, e.g., Duran v Sollitt Constr Co, 135 Mich App 610, 615; 354 NW2d 277 (1984); Zeeland Community Hosp v Vander Wal, 134 Mich App 815, 824-825; 351 NW2d 853 (1984).
Accordingly, the WCAC’s construction of § 315(1) is not “clearly wrong,” Tyler v Livonia Pub Schools, 459 Mich 382, 388; 590 NW2d 560 (1999), and is entitled to “respectful consideration” by this Court, In Re Rovas Complaint Against SBC Michigan, 482 Mich 90, 93-94, 107-108, 117-118; 754 NW2d 259 (2008). The WCAC did not misapply the law when it affirmed the magistrate’s exercise of his discretionary authority to order defendant employer to pay plaintiff an attorney fee.
Section 315(1) authorized the magistrate to award plaintiff attorney fees to be paid by his former employer. Accordingly, this Court lacks the authority to independently assess whether the award of attorney fees in this case reflects the best public policy. The relief defendants seek must be supplied by the Legislature. Lash v Traverse City, 479 Mich 180, 197; 735 NW2d 628 (2007).
B. RES JUDICATA
The WCAC also correctly refused to apply the doctrine of res judicata as a bar to an award of attorney fees. As a general proposition, the doctrine of res judicata applies to workers’ compensation awards. See Gose v Monroe Auto Equip Co, 409 Mich 147, 159; 294 NW2d 165 (1980); Banks v LAB Lansing Body Assembly, 271 Mich App 227, 229; 720 NW2d 756 (2006). In this specific case, however, the doctrine does not bar plaintiffs claim for attorney fees. Although the compensability of the medical bills may have been an issue that arose before the first trial, the premise for the magistrate’s discretionary decision under § 315(1) was defendants’ failure to pay plaintiffs medical benefits, which occurred after the first trial. Accordingly, the issue of nonpayment could not have been raised at the first trial. Paige v Sterling Hts, 476 Mich 495, 521 n 46; 720 NW2d 219 (2006). Under these circumstances, res judicata is not implicated. The WCAC committed no error in its legal analysis requiring reversal.
C. FACTUAL DETERMINATIONS
Finally, the WCAC reasonably inferred from defendants’ refusal to make the payments until plaintiff filed a petition that plaintiffs efforts “broke the medical payments loose.”
The magistrate determined that plaintiffs counsel was entitled to an attorney fee because the medical bills in question would not have been paid “but for” the petition filed by plaintiffs attorney. The WCAC was required to consider this finding of fact conclusive if it was supported by competent, material, and substantial evidence on the entire record. MCL 418.861a(3); Mudel, supra at 698-699. The WCAC agreed with the magistrate’s finding of fact, observing that “ [i]t certainly does not appear that [defendants were] routinely paying medical bills, until after plaintiff sought help from the workers’ compensation agency.” In the absence of fraud, this Court must treat findings of fact made by the WCAC acting within its powers as conclusive if there is “any competent evidence” to support them. Mudel, supra at 700-701; see also MCL 418.861a(14).
The fact that defendants paid the medical bills at issue after plaintiff hired an attorney and filed an application for hearing allows a reasonable inference that defendants would not have paid the disputed bills but for the application filed by plaintiffs attorney. The WCAC’s finding is supported under the “any competent evidence” standard. It is, therefore, conclusive. The WCAC did not misapprehend or misapply its standard for reviewing the magistrate’s finding of fact.
Affirmed.
The WCAC modified the magistrate’s order, in part, to reflect a nursing care service fee of $75 a visit to plaintiffs care providers. Defendants originally challenged the WCAC’s modification on appeal. However, pursuant to a stipulation, this issue was dismissed by order of this Court. Harvlie v Jack Post Corp, unpublished order of the Court of Appeals, entered March 27, 2008 (Docket No. 276044). | [
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BORRELLO, J.
Appellants, 23rd Circuit Court Judges William F. Myles and Ronald M. Bergeron, appeal the trial court’s June 10, 2008, injunction, by which the trial court ordered the Secretary of State to accept additional nominating petition signatures on behalf of plaintiff Christopher E Martin until 4:00 p.m. on June 12, 2008, and to place Martin on the ballot as a candidate for judge of the 23rd Circuit Court if he filed sufficient valid signatures by that deadline. We affirm.
I. FACTS AND PROCEDURAL HISTORY
The facts giving rise to this appeal are not in dispute. Martin sought to run for the office of judge of the 23rd Circuit Court. MCL 168.413 establishes the requirements for nominating petitions for candidates for circuit court judges:
To obtain the printing of the name of a person as a candidate for nomination for the office of judge of the circuit court upon the official nonpartisan primary ballots, there shall be filed with the secretary of state nominating petitions containing the signatures, addresses, and dates of signing of a number of qualified and registered electors residing in the judicial circuit as determined under [MCL 168.544f].... The secretary of state shall receive the nominating petitioners up to 4 p.m. of the fourteenth Tuesday preceding the primary.
MCL 168.544f imposes a graduated scale for the number of signatures required on the nominating petitions that is based on the population of the district. Before April 1, 2003, the 23rd Judicial Circuit was made up of Iosco and Oscoda counties and included one judge. 2002 PA 92 amended MCL 600.524 by restructuring the 23rd Judicial Circuit to include Alcona, Arenac, Iosco, and Oscoda counties and add one judge. With the additional counties, the 23rd Judicial Circuit has an estimated population of 65,745. Under MCL 168.544f, the minimum number of signatures required on a nominating petition for an individual seeking to be a judicial candidate for the 23rd Judicial Circuit is 200, and the maximum number of signatures on the nominating petition is 400.
MCL 600.550(1) requires the State Court Administrator’s Office (SCAO) to notify the Bureau of Elections “with respect to each new circuit judgeship authorized pursuant to this subsection.” This notice requirement is triggered when the county board of commissioners of each affected county approves the creation of the judgeship by resolution and files a copy of the resolution with SCAO. MCL 600.550(1). However, MCL 600.550a(4) eliminated the requirement of approval by the county board of commissioners for certain judicial circuits that were restructured, including the 23rd Judicial Circuit, thus rendering virtually inoperable SCAO’s notification obligation under MCL 600.550(1). The Bureau of Elections, which publishes signature requirements, was thus not notified of the change in the 23rd Judicial Circuit, and it provided erroneous information about the signature requirement for candidates seeking a judgeship in the 23rd Judicial Circuit, indicating that it was 100 to 200 signatures rather than the 200 to 400 signatures required by MCL 168.544f. The Secretary of State published this erroneous information, and it appeared on the Secretary of State’s website.
According to affidavits submitted by Martin, he or individuals associated with his campaign made at least two calls to the Secretary of State in April 2008 to verify the number of signatures necessary to get his name on the ballot for the position of judge of the 23rd Judicial Circuit, and on both occasions the Secretary of State informed them that Martin needed to submit between 100 to 200 signatures and that submission of more than 200 signatures was a crime. In addition, a document entitled “Filing Requirements for Non-Incumbent Judicial Candidates” contained the same inaccurate information regarding the number of signatures required for the 23rd Judicial Circuit. In his affidavit, Christopher M. Thomas, Director of the Bureau of Elections, asserted that “ [t]his publication has been posted on the Department of State’s website and sent directly to candidates.” Relying on the Secretary of State’s erroneous information regarding the number of signatures required, Martin filed 158 signatures with the Bureau of Elections on April 23, 2008. On May 1,2008, after the April 29, 2008, deadline for gathering signatures and filing petitions had passed, Bergeron filed a challenge to Martin’s eligibility to have his name placed on the ballot, arguing that Martin’s petitions had an insufficient number of signatures and therefore failed to comply with MCL 168.544Í. On May 5, 2008, Martin attempted to submit 208 additional signatures, but the Bureau of Elections refused to accept the signatures because the deadline had passed. On May 15, 2008, the Bureau of Elections sent Martin a letter informing him that he was ineligible to have his name listed as a candidate on the primary ballot because his petition contained less than 200 signatures and was therefore insufficient on its face.
Plaintiffs filed this action in the circuit court on May 30, 2008, against the Secretary of State, the Director of the Bureau of Elections, and the Board of State Canvassers, requesting a temporary restraining order, a preliminary injunction, and, after a final hearing, a permanent injunction enjoining the Secretary of State from excluding Martin from the ballot. Plaintiffs also sought orders of mandamus against the Board of State Canvassers and the Secretary of State and alleged violations of plaintiffs’ First Amendment rights and the due process clauses of the United States and Michigan constitutions, negligent misrepresentation, promissory estoppel, and entrapment by estoppel. A hearing was set for June 10, 2008. On June 9, 2008, appellants filed an emergency motion to intervene, arguing that they had “an obvious interest in whether an otherwise uncontested election becomes a contested election, by virtue of the relief Martin requests in this lawsuit.”
At the June 10, 2008, hearing, the trial court considered appellants’ motion to intervene, as well as plaintiffs’ complaint. Appellants asserted that they were entitled to intervene under MCR 2.209(A)(3) and con tended that their interests would not necessarily be protected by the existing defendants, noting that the Secretary of State had indicated that it would not appeal a ruling that was contrary to appellants’ interests. Defendants did not object to appellants’ attempt to intervene in the matter. However, plaintiffs asserted that appellants’ motion to intervene was untimely. Plaintiffs also argued that appellants had failed to demonstrate that they would not be adequately represented by the existing defendants, observing that the Attorney General had undertaken an aggressive defense of the matter and had filed an extensive brief. The trial court denied the motion to intervene, stating that appellants did not have standing to intervene because the litigation involved whether the court “should issue a writ of mandamus against the Secretary of State. It is not directed at [appellants.]” In an order dated June 25, 2008, the trial court stated: “Incumbents’ Motion to Intervene is denied because the Incumbents have not satisfied the requirements set forth in MCR 2.209(A)(3) for the reasons discussed on the record.” The trial court further ordered the Secretary of State to extend the deadline for filing nominating petition signatures until 4:00 p.m. on June 12, 2008, and if sufficient signatures were filed, to place Martin’s name on the ballot. Thereafter, Martin acquired sufficient signatures, and the Secretary of State placed his name on the November 4, 2008, ballot for the position of judge of the 23rd Circuit Court.
Appellants filed their claim of appeal on June 17, 2008, along with motions to expedite, to waive the requirements of MCR 7.209, for immediate consideration, for peremptory reversal, and for a stay. In a June 20, 2008, order, this Court granted immediate consideration and appellants’ motion to waive the requirements of MCR 7.209, but denied peremptory reversal or a stay. In a June 27, 2008, order, this Court granted the motion to expedite and directed the parties to address whether appellants are aggrieved parties within the meaning of MCR 7.203(A). Shortly thereafter, appellants filed a bypass application for leave to appeal in the Michigan Supreme Court. In an order dated July 9, 2008, our Supreme Court denied the application, but ordered this Court to issue a decision in this case no later than August 21, 2008.
II. ANALYSIS
We first address whether appellants meet the definition of “aggrieved party” under MCR 7.203(A). The concepts of standing and whether an individual is an aggrieved party are closely related. See Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 290-291; 715 NW2d 846 (2006). Whether a party has standing is a question of law, which we review de novo. Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 734; 629 NW2d 900 (2001). “In order to have appellate standing, the party filing an appeal must be ‘aggrieved.’ ” Manuel v Gill, 481 Mich 637, 643; 753 NW2d 48 (2008); see Federated Ins Co, 475 Mich at 290-291; MCR 7.203(A).
This court “has jurisdiction of an appeal of right filed by an aggrieved party from” a final order or judgment of the trial court. MCR 7.203(A) (emphasis added). In Federated Ins Co, the Supreme Court clarified the requirements for a party to be an aggrieved party under MCR 7.203(A):
“To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency.” In re Estate of Trankla, 321 Mich 478, 482; 32 NW2d 715 (1948), citing In re Estate of Matt Miller, 274 Mich 190, 194; 264 NW 338 (1936). An aggrieved party is not one who is merely disappointed over a certain result. Rather, to have standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court’s power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case. [Federated Ins Co, 475 Mich at 291-292.]
The Supreme Court’s holding in Federated Ins Co regarding who is an aggrieved party under MCR 7.203(A) heightened the requirements to be an aggrieved party, thus rendering it more difficult for a party to invoke the jurisidiction of this Court. Before the Supreme Court decided Federated Ins Co, a litigant was an aggrieved party if the party’s legal right was invaded by an action or the party’s pecuniary interest was directly or adversely affected by a judgment or order. See In re Critchell Estate, 361 Mich 432, 448-449; 105 NW2d 417 (1960); In re Freeman Estate, 218 Mich App 151, 155; 553 NW2d 664 (1996). It was sufficient if a party had “an interest in the subject matter of the litigation.” In re Critchell Estate, 361 Mich at 448; see also In re Freeman Estate, 218 Mich App at 155. After Federated Ins Co, to be “aggrieved,” a party must have more than a mere interest in the subject matter of the proceedings below; the party “must have suffered a concrete and particularized injury . . . Federated Ins Co, 475 Mich at 291. A “minute and generalized” injury is not concrete and particularized. Rohde v Ann Arbor Pub Schools, 479 Mich 336, 354; 737 NW2d 158 (2007).
Appellants argue that they have suffered a concrete and particularized injury because they must endure a contested judicial election with an opponent who has not met the statutory requirements to properly be on the ballot and this will require them to make significant financial expenditures. Clearly, appellants, as incumbent judges, have an interest in the subject matter of the litigation, because the results of such litigation would determine whether they run unopposed in the November 2008 election or face a challenger. However, we are unwilling to conclude as a matter of law that a candidate for elected office is an aggrieved party solely by virtue of being required to run for elected office in a contested election. In support of our conclusion in this regard, we note that we have previously recognized that “the definition of ‘aggrieved party’ varies according to the type of case at issue, and, consequently, the court must in each case examine the subject matter of the litigation.” Security Ins Co of Hartford v Daniels, 70 Mich App 100, 105; 245 NW2d 418 (1976). The subject matter of the instant case concerns an attempt by appellants, as incumbent judges, to keep a potential challenger off the ballot. This Court has recognized that
[t]here is a fundamental difference between actions taken to get a candidate’s name on the ballot and actions taken to prevent it from appearing. Associating for the purpose of getting a candidate’s name or a legislative proposal on the ballot is protected activity under the First Amendment; conspiring for the purpose of having it removed is not. [Deleeuw v Bd of State Canvassers, 263 Mich App 497, 504; 688 NW2d 847 (2004).]
While we certainly do not believe that appellants conspired to have Martin’s name removed from the ballot, their attempt to bar Martin from appearing on the ballot is the subject matter of the litigation. We decline to hold as a matter of law that a candidate for elective office is an aggrieved party by virtue of facing a contested election for that office when the nature of the litigation involves the candidate’s attempt to bar a potential challenger from appearing on the ballot. We acknowledge that our holding in this regard effectively denies appellants access to the courts. While we would not be inclined to close the courthouse doors in this manner to a party who was seeking to get a candidate’s name on the ballot, we do not so zealously protect parties who seek to prevent a candidate’s name from appearing on the ballot. In this case, appellants are understandably disappointed about the fact that Martin’s appearance on the ballot will require them to engage in a considerably more difficult and more expensive contested election rather than run unopposed for the judicial seats they seek. However, a party who is merely disappointed over a result is not an aggrieved party. Federated Ins Co, 475 Mich at 291.
Even if we were inclined to conclude that appellants are aggrieved parties under MCR 7.203(A), however, appellants have not satisfied the requirement of a concrete and particularized injury established by the Supreme Court in Federated Ins Co, 475 Mich at 291. At most, appellants have established the possibility of being faced with uncertain and unspecified expenditures as a result of campaigning in a contested election. According to appellants, Martin’s name on the ballot “inevitably will put [appellants] to significant expense.” Even if this is true, such undefined significant expenses do not constitute a concrete and particularized injury under Federated Ins Co because appellants have not specified, articulated or explained the nature of the significant expenses (whether such expenses would be necessary for television or radio advertisement, signs or brochures, or some other expenses) or the amount of those expenses. We conclude that any injury to appellants in this case is uncertain and unparticularized; therefore, appellants have failed to establish a concrete and particularized injury, as required by Federated Ins Co.
Appellants have not cited any caselaw from Michigan or another jurisdiction in which a court has held that being a candidate in a contested election for public office renders an individual an aggrieved party. In support of their argument that they will suffer an injury if they are forced to make financial expenditures to engage in a contested election, appellants rely on two federal cases: Daggett v Comm on Governmental Ethics & Election Practices, 172 F3d 104, 108 (CA 1,1999), and Marshall v Meadows, 921 F Supp 1490 (ED Va, 1996). We conclude that these cases are distinguishable from this case in that neither federal case decides whether a person is an aggrieved party under MCR 7.203(A) or a similar statute or court rule and neither case holds that an incumbent elected official suffers a concrete and particularized injury by virtue of having to make financial expenditures to campaign in a contested election. Thus, we are not persuaded by appellants’ reliance on these cases.
Appellants also argue that as citizens they have standing to ensure that the elections laws of the state of Michigan are properly enforced and that they are aggrieved parties if they are denied the opportunity to ensure that such laws are enforced. In support of this contention, appellants rely primarily on this Court’s decision in Deleeuw. In Deleeuw, Republican Party operatives, including plaintiff Deleeuw, were seeking to place Ralph Nader’s name on the Michigan ballot for President of the United States in the November 2004 election. We ruled that the plaintiffs had standing in that action because they had circulated, signed, and filed the nominating petitions on behalf of Ralph Nader, thereby giving them a legally protected interest for this Court to enforce. In so ruling, we opined:
Normally, courts require citizens to resort to the election process to vent any frustration. Election cases are special, however, because without the process of elections, citizens lack their ordinary recourse. For this reason we have found that ordinary citizens have standing to enforce the law in election cases. Moreover, we Eire not dealing with ordinary citizens here. Collectively, plaintiffs duly circulated, signed, and filed petitions that the board would now mute by its inaction. Under these circumstances, plaintiffs possessed a legally protected interest in having their valid signatures effectuate their petition to qualify the named political candidate as mandated by law. [Deleeuw, 263 Mich App at 505-506 (citations omitted).]
If there was any question, in Deleeuw we clarified that questions of standing in election cases must be considered using the standing principles outlined in Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004). In Nat’l Wildlife, Justice MARKMAN, writing for the majority, stated:
At a minimum, standing consists of three elements:
“First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly... traceable to the challenged action of the defendant, and not... the result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Id. at 628-629 (citation omitted).]
As we have observed previously in this opinion, the concepts of standing and aggrieved party are intertwined. For the same reasons that appellants did not establish that they suffered a concrete and particularized injury that rendered them aggrieved parties under MCR 7.203(A), we also conclude that they have failed to establish the first element in the standing analysis. Appellants have not suffered a legally cognizable injury by virtue of being forced to run in a contested judicial election. Additionally, we note that there is a significant factual distinction between this case and Deleeuw. In this case, appellants are attempting to prevent a candidate from appearing on the ballot, whereas in Deleeuw the plaintiffs were attempting to get an individual’s name on the ballot. As this Court sagely observed in Deleeuw, this difference is critical: “There is a fundamental difference between actions taken to get a candidate’s name on the ballot and actions taken to prevent it from appearing.” Deleeuw, 263 Mich App at 504. In sum, Deleeuw stands for the proposition that the interests of the public are better served by having the names of candidates placed on the ballot rather than by removing them.
m. CONCLUSION
We share and agree with the concerns raised by the dissent that citizens possess the right to redress grievances involving elections through our courts. We emphasize that nothing in this opinion should be con strued to limit citizens’ access to our courts to ensure that the election laws of this state are enforced. Rather, our opinion must be narrowly construed and limited to the unique facts of this case. This narrow holding stands solely for the conclusion that pursuant to the dictates set forth by our Supreme Court in Federated Ins Co and Nat’l Wildlife, a candidate for judicial office has not suffered an injury and therefore is not an aggrieved party and does not have standing solely because the candidate is required to run in a contested judicial election. Because we conclude that appellants are not aggrieved parties under MCR 7.203(A) and have failed to articulate a legally cognizable right granting them standing in this matter, we need not address any additional arguments advanced by the parties.
Affirmed. No costs, a public question having been involved.
OWENS, J., concurred.
It is unclear from the record if the Bureau of Elections sent Martin this document, but Martin asserts in his affidavit that he viewed the document on the Bureau of Elections’ website.
We note that the court did not enter the order denying the motion to intervene until June 25, 2008, after appellants filed the claim of appeal. While appellants have provided this Court with that order as a supplement to their claim of appeal, they did not apply for leave to appeal that order or move this Court to amend the appeal. However, given the nature of the case, the time constraints placed on this Court, and the lack of argument from appellees on this issue, we exercise our discretion to treat appellants’ claim of appeal as an application for leave to appeal, and we grant it. See In re Investigative Subpoena re Homicide of Lance C Morton, 258 Mich App 507, 508 n 2; 671 NW2d 570 (2003).
We note that appellants have not provided any documentation to demonstrate that they have expended any funds on behalf of their reelection campaigns, nor is there any mandate that they do so. | [
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MARKEY, P.J.
In this medical malpractice action, plaintiff appeals by right the trial court’s February 5, 2007, order granting summary disposition in favor of four individual defendants, Drs. Carol L. Bradford, Dale Ekbom, James A. Freer, and Paul DeFlorio. Plaintiff also challenges the trial court’s earlier June 5, 2006, order dismissing her claims against the other five individual defendants, Drs. Pia M. Sundgren, Anthony D’Amico, Steven Kronick, John N. Shenk, and Steven Krafcik, and denying her motion to amend the complaint to allege- fraudulent concealment. We affirm.
I. BACKGROUND
On July 31, 2003, plaintiff underwent surgery at the University of Michigan Hospital to drain a cervical epidural abscess. She allegedly developed left hemiplegia before the surgery, which left her without the use of her left arm and leg. In a notice of intent to file a claim, MCL 600.2912b, mailed on July 20, 2005, plaintiff asserted that her condition was caused by the failure of health care providers to timely and appropriately diagnose and treat her condition on July 24 and 30, 2003, and that she suffered further injury because of improper postoperative care. The notice was addressed to the University of Michigan Hospitals & Health Centers, various unnamed persons, and 20 named physicians, including five of the individual defendants, Drs. Bradford, Ekbom, Freer, DeFlorio, and Krafcik.
In an amended notice of intent, dated January 18, 2006, plaintiff modified the basis of her claims against the individual defendants in this case to allege more specific standards of care applicable to emergency physicians and nurses, the “radiologist/neuroradiologist,” and “ENT consulting physicians,” and added allegations regarding a July 28, 2003, clinical visit.
On January 20, 2006, plaintiff filed the instant action against the University of Michigan defendants and the nine individual defendants. In February 2006, the individual defendants moved for summary disposition under MCR 2.116(C)(7) and (10) on the grounds that plaintiffs claims were barred by the statute of limitations and that the claim against Dr. Krafcik lacked an appropriate affidavit of merit required by MCL 600.2912d. Before the hearing on the motion for summary disposition, plaintiff moved to amend her complaint pursuant to MCR 2.116(I)(5) and 2.118(A)(2) to add additional theories of liability and to allege fraudulent concealment. In a proposed amended complaint filed with the motion, plaintiff alleged that “defendants,” by withholding certain medical records, fraudulently concealed the identity of the four individual defendants who were not named in her initial presuit notice of intent to file a claim.
Following a hearing on May 17, 2006, the trial court entered an order dated June 5, 2006, dismissing with prejudice plaintiffs claims against Drs. Sundgren, D’Amico, Kronick, Shenk, and Krafcik. Plaintiffs motion to amend her complaint to allege fraudulent concealment was also denied. The trial court allowed the parties to file supplemental briefs with respect to the remaining individual defendants and the additional theories of liability alleged in plaintiffs proposed amended complaint. Plaintiff also filed a motion for reconsideration of the order denying her motion to amend her complaint to allege fraudulent concealment, asserting that she had additional evidence to support the claim.
On February 5, 2007, the trial court issued an opinion and order dismissing the four remaining individual defendants, Drs. Bradford, Ekbom, Freer, and DeFlorio, with prejudice. Plaintiffs motions for reconsideration and to amend her complaint were also denied.
II. STANDARD OF REVIEW
We review de novo a trial court’s grant of summary disposition to determine if the moving party was entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Questions of statutory construction are also reviewed de novo. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). Summary disposition may be granted under MCR 2.116(C)(7) when a claim is barred because of a statute of limitations. The moving party may support the motion with affidavits, depositions, admissions, or other documentary evidence. Maiden, supra at 119. Such evidence is considered to the extent that the content or substance would be admissible as evidence. MCR 2.116(G)(6). The allegations in the complaint are accepted as true unless contradicted by the documentary evidence. Maiden, supra at 119. “If the pleadings or other documentary evidence reveal no genuine issues of material fact, the court must decide as a matter of law whether the claim is statutorily barred.” Holmes v Michigan Capital Med Ctr, 242 Mich App 703, 706; 620 NW2d 319 (2000).
We review a trial court’s denial of a motion to amend a complaint for an abuse of discretion. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). An abuse of discretion occurs when a trial court’s decision falls outside the range of principled outcomes. Woodard, supra at 557. A motion to amend under MCR 2.118 should ordinarily be granted, but may be denied for the following particularized reasons: “ ‘[1] undue delay, [2] bad faith or dilatory motive on the part of the movant, [3] repeated failure to cure deficiencies by amendments previously allowed, [4] undue prejudice to the opposing party by virtue of the amendment, [and 5] futility ....’” Sands Appliance Services, Inc v Wilson, 463 Mich 231, 239-240; 615 NW2d 241 (2000), quoting Sera P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973).
III. MALPRACTICE CLAIMS AGAINST DRS. SUNDGREN, D’AMICO, KRONICK, AND SHENK
Because it concluded that the statutory period of limitations had expired, the trial court granted summary disposition in favor of Drs. Sundgren, D’Amico, Kronick, and Shenk, who were not named in plaintiffs initial notice of intent to file a claim. The trial court further determined that plaintiff had failed to demonstrate any reason for tolling the limitations period in spite of plaintiffs claim of fraudulent concealment or the initial or amended notice of intent to file a claim.
Initially, we note that this Court previously denied defendants’ motion to strike the portion of plaintiffs brief relating to the earlier June 5,2006, order. Shember v Univ of Michigan Med Ctr, unpublished order of the Court of Appeals, entered November 30, 2007 (Docket No. 276515). Further, plaintiffs failure to list each individual defendant as an appellee in the claim of appeal, as required by MCR 7.204(D)(1), was not fatal to this Court’s jurisdiction over the four individual defendants, who each received notice of the appeal. See Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 258 n 1; 503 NW2d 728 (1993) (CONNOR, J., dissenting). Additionally, a party claiming an appeal of right from a final order is free to raise issues on appeal related to prior orders. See Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487 NW2d 807 (1992). Therefore, appellate review of the trial court’s decision dismissing these four individual defendants is not precluded.
Nonetheless, “[i]t is axiomatic that where a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by this Court.” Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). An appellant may not leave it to this Court to discover and rationalize the basis of a claim. Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). Although this Court may overlook preservation requirements in certain circumstances, “a party’s failure to brief an issue that necessarily must be reached precludes appellate relief.” City of Riverview v Sibley Limestone, 270 Mich App 627, 638; 716 NW2d 615 (2006).
Here, plaintiff has not raised any issue challenging the trial court’s determination that, absent a legally cognizable tolling event, the two-year limitations period in MCL 600.5805(6) expired before the complaint was filed on January 20, 2006; consequently, summary disposition of the malpractice claims against Drs. Sundgren, D’Amico, Kronick, and Shenk was proper under MCR 2.116(C)(7). Further, plaintiff does not argue that she may take advantage of the presuit notice tolling provision in MCL 600.5856 with respect to these individual defendants.
At best, plaintiff has presented an issue challenging the trial court’s determination that there was no evidence of fraudulent concealment to toll the limitations period. But plaintiff incorrectly presents this issue solely as one relevant to whether she should have been allowed to amend her complaint to add a substantive claim for fraudulent concealment.
It is true that a plaintiff must allege in a complaint facts supporting fraudulent concealment in order to rely on the fraudulent concealment tolling provision. Sills v Oakland Gen Hosp, 220 Mich App 303, 310; 559 NW2d 348 (1996); Dunmore v Babaoff, 149 Mich App 140, 146-147; 386 NW2d 154 (1985). But the fraudulent concealment tolling provision is not itself a substantive cause of action for which a plaintiff may recover damages from a tortfeasor.
Fraudulent concealment is recognized as a tolling event in MCL 600.5855. See Sills, supra; Dunmore, supra. Plaintiff is charged with the discovery of facts that with the exercise of reasonable diligence she ought to have discovered. Meyer & Anna Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 45-46 n 2; 698 NW2d 900 (2005). To prove fraudulent concealment, plaintiff must show that a person who is or may be liable for the claim engaged in some arrangement or contrivance of an affirmative character that was designed to prevent subsequent discovery of the existence of the claim or the identity of the person liable for the claim. Doe v Roman Catholic Archbishop, 264 Mich App 632, 642-643; 692 NW2d 398 (2004); Sills, supra at 310. Plaintiff must specifically plead the acts or misrepresentations that comprised the fraudulent concealment and prove that they were designed to prevent subsequent discovery. Phinney v Perlmutter, 222 Mich App 513, 563; 564 NW2d 532 (1997); Dunmore, supra at 147.
Because tolling based on fraudulent concealment relates to the statute of limitations, it is appropriately reviewed under MCR 2.116(C)(7). Meyer & Anna Prentis Family Foundation, Inc, supra at 46 n 3. Therefore, it was appropriate for the trial court to consider the evidence the parties submitted when reviewing defendants’ motion for summary disposition. MCR 2.116(G)(5).
The affidavits plaintiff and her counsel executed aver that they both attended a meeting on September 2, 2004, at the University of Michigan’s risk management department and were provided with incomplete medical records at that time. Plaintiffs counsel averred, and documentary evidence confirmed, that an issue arose in February 2005 regarding whether it was necessary that plaintiff execute a release to authorize counsel’s receipt of the records, but there was no evidence that plaintiff executed or timely provided the release. And while plaintiffs counsel averred that she was unsuccessful in obtaining copies of additional records from the risk management department, plaintiff averred that she was able to obtain copies of the records in August 2005, by personally going to the University of Michigan’s records department.
We must consider the evidence in the light most favorable to plaintiff. Brennan v Edward D Jones & Co, 245 Mich App 156, 157; 626 NW2d 917 (2001). In so doing, we agree with the trial court that there was no evidence of fraudulent concealment. Plaintiff was required to exercise reasonable diligence. Meyer & Anna Prentis Family Foundation, Inc, supra at 46 n 2. Assuming for purposes of review that the University of Michigan was or may be liable within the meaning of MCL 600.5855, plaintiffs counsel’s inability to obtain medical records from the university’s employees plainly suggested the need for some other course of action to either view or obtain copies of the records. The evidence did not support an inference that the employees had embarked on a course of action designed to prevent or hinder plaintiffs identifying the particular physicians who might be liable for medical malpractice. Further, plaintiff offered no evidence that she could not have, with reasonable diligence, timely accessed or obtained copies of the records through other means, such as when, according to plaintiffs affidavit, she personally went to the records department in August 2005 and obtained the records.
Because plaintiffs original complaint did not allege fraudulent concealment and because plaintiff failed to demonstrate any evidence showing a genuine issue of material fact regarding this issue, we uphold the trial court’s grant of summary disposition under MCR 2.116(C)(7) in favor of Drs. Sundgren, D’Amico, Kronick, and Shenk. Holmes, supra at 706. Further, given the lack of evidence to support this tolling theory, the trial court did not abuse its discretion in denying plaintiffs motion to amend the complaint to plead fraudulent concealment. Only where summary disposition is based on MCR 2.116(C)(8), (9), or (10) is a trial court required to give a party an opportunity to amend the complaint. MCR 2.116(I)(5); Weymers, supra at 658. Even then, the evidence before the trial court can be considered in determining if an amendment would be justified. MCR 2.116(1)(5); see also Ormsby v Capital Welding, Inc, 471 Mich 45, 52-60; 684 NW2d 320 (2004). Therefore, even if we were to treat this case as involving a motion under MCR 2.116(C)(8) instead of MCR 2.116(C)(7), we would not reverse because the evidence before the trial court when it decided the motion indicates that an amendment would have been futile. Ormsby, supra at 53, 60; Dunmore, supra at 147.
IV MALPRACTICE CLAIMS AGAINST DRS. BRADFORD, EKBOM, FREER, AND DEFLORIO
The trial court granted summary disposition in favor of Drs. Bradford, Ekbom, Freer, and DeFlorio on the ground that plaintiffs claims were barred by the statute of limitations. It determined that plaintiff could not take advantage of the presuit notice tolling provision in MCL 600.5856(c) because her initial notice of intent mailed on July 20, 2005, did not comply with the requirement of MCL 600.2912b(4)(b) that the notice identify the applicable standard of practice or care.
Although the trial court did not articulate the particular subrule of MCR 2.116 on which it relied, the individual defendants sought summary disposition under MCR 2.116(C)(7), which is appropriately applied to claims based on a statute of limitations. Meyer & Anna Prentis Family Foundation, Inc, supra at 46 n 3.
Plaintiffs principal argument is that the trial court erred in finding that her initial presuit notice of intent failed to comply with MCL 600.2912b(4)(b). We disagree. Under Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 690-696; 684 NW2d 711 (2004) (Roberts II), a plaintiff must identify in a readily ascertainable manner all the specific information mandated by the statute regarding each particular professional or facility that is named in the notice. The notice is not required to be accurate in every respect. Id. at 691. But a plaintiff must “make good-faith averments that provide details that are responsive to the information sought by the statute and that are as particularized as is consistent with the early notice stage of the proceedings.” Id. at 701 (emphasis in original); see also Boodt v Borgess Med Ctr, 481 Mich 558, 560-561; 751 NW2d 44 (2008). The standard applicable to one defendant is not necessarily the standard applicable to another defendant. Roberts II, supra at 694 n 11. The degree of specificity must allow potential defendants to understand the nature of the claims against them. Id. at 701. A plaintiff must only “ ‘specify what it is that she is claiming under each of the enumerated categories in § 2912b(4).’ ” Boodt, supra at 561, quoting Roberts II, supra at 701 (emphasis in original).
In this case, plaintiffs notice was addressed to the University of Michigan Hospitals & Health Centers; 20 individuals from a variety of departments, including emergency medicine, physical medicine and rehabilitation, otolaryngology, neurosurgery, and radiology; and unnamed individuals. The only factual allegation directed at Dr. Bradford, an alleged member of the Department of Otolaryngology, was that a “second esophageal dilation was performed on June 8, 2003.” Plaintiff also alleged a different esophageal dilation by Dr. Rontal, also an alleged member of the Department of Otolaryngology, that resulted in a torn esophagus. The standard of care alleged in the notice did not address the June 8 dilation, but rather contained broad allegations regarding the alleged failure of health care providers to timely and appropriately diagnose and treat plaintiffs condition in the emergency room on July 24 and 30, 2003, broad allegations regarding postoperative care, and a general allegation that the “applicable standard of care required the Health Care providers to avoid perforation during an esophageal dilation; timely and appropriately appreciate Claimant’s complaints and symptoms, timely and appropriately diagnosis and treat Claimant’s condition in the ER which would include, but is not limited to, ordering appropriate films in an emergent and STAT manner .. .
Without a more exacting statement of the standard of care applicable to an otolaryngologist, who previously performed an esophageal dilation as alleged in the notice, Dr. Bradford would be left to guess at the basis of plaintiffs claim. Examined in its entirety, the notice was insufficient to inform Dr. Bradford of the standard of care applicable to her circumstances, as required by MCL 600.2912b(4)(b). Cf. Gawlik v Rengachary, 270 Mich App 1, 10-11; 714 NW2d 386 (2006) (notice of intent inadequate where it generally encompassed all caregivers and failed to explain what the physician should have done).
Plaintiffs claim with respect to Dr. Ekbom, also an alleged member of the Department of Otolaryngology, is even vaguer, because the notice does not contain any particular factual allegations against him. Plaintiffs claims against Dr. Freer, an alleged member of the Department of Emergency Medicine, similarly contain no specific factual allegations. Viewed in conjunction with the standard of care that is generally directed at the health care providers mentioned in the notice, the notice is inadequate to satisfy MCL 600.2912b(4)(b) with respect to these physicians.
The factual basis of plaintiffs claim with respect to Dr. DeFlorio, an alleged member of the “Department of Emergency Department,” is more detailed. The notice indicates that it relates to the events of July 30, 2003, in the emergency room:
Claimant returned to the Emergency Room on July 30, 2003 at approximately 1:00 a.m. and again presented with extreme pain in her neck and shoulders. Claimant was kept in the ER for approximately 17 hours during which she had experienced progressive neurological deficit for which nothing was done. Due to incomplete records, it is believed that Dr. DeFlorio attempted to spinal tap 2-3 times at some point during Claimant’s 17 hours in the ER for suspected meningitis, for which he failed each time and left Claimant to excruciating pain. Dr. DeFlorio then indicated that he was “needed elsewhere” and left Claimant to continue to sit in the ER while Claimant continued to experience progressive neurological deficit for which nothing was done. Specifically, Plaintiff was losing mobility and control of her left arm which she had control of 17 hours ago, prior to her walking into the ER of the University of Michigan Hospital. Claimant repeatedly advised her treaters of her increasing inability to move her left arm throughout her course in the ER. An MRI was finally taken sometime approximately late evening on July 30, 2003, which showed massive infection.. .. The next day, on July 31, 2003, Dr. Frank LaMarca performed a posterior cervical fusion-vertex. [Emphasis added.]
Further, the alleged standard of care contained some specific allegations directed at the events of July 30, 2003:
The Health Care Providers should have also timely and appropriately diagnosed and treated Claimant’s condition upon her second presentation to the ER on July 30, 2003 wherein she had the same complaints of extreme and unbearable pain in her neck and shoulders and was also experiencing progressive neurological deficit over the course of approximately 17 hours. The applicable standard of care required the Health Care providers to ... timely and appropriately diagnose and treat Claimant’s condition in the ER which would include, but is not limited to, ordering appropriate film in an emergent or STAT manner, order timely CBCs, order timely or emergent/STAT consults including neurosurgery for a patient who was experiencing progressive neurological deficit, obtain Claimant’s past medical history and consult known treaters of Claimant in a timely fashion to understand and appreciate Claimant’s past medical history, immediately order a STAT MRI and immediately take the Claimant to the operating room given the presence of massive infection and cord compression.
The alleged manner in which the standard of care was breached also refers to the events on July 30, 2003, and, in particular, alleges that there was a failure to “to timely obtain and review results of CBC, MRI, neurosurgery consult, failure to be admitted or triaged while in the ER instead of waiting 17 hours in an ER cubical [sic] during which nothing was done regarding Claimant’s progressive neurological deficit. . . .”
The problem with the notice is that it does not indicate that Dr. DeFlorio was the only physician to see plaintiff during her 17-hour stay in the emergency room or that he became involved in her care for any purpose other than the attempted spinal taps. To the contrary, plaintiff alleged that there were other unidentified “treaters.” In addition, the alleged standard of care is not particularized to Dr. DeFlorio’s circumstances, or even emergency physicians in general, but rather is directed at the “health care providers” mentioned in the notice. The notice suggests that the same list of actions would apply to all health care providers who had contact with plaintiff in the emergency room.
On the other hand, Dr. DeFlorio, as a medical professional, would presumably have ready access to information about the case after being provided with notice of the claim against him. Thus, it would be easy for him to comprehend the factual nature of the impending lawsuit. Further, while the unique standard applicable to a particular defendant is an element of a malpractice action, the presuit notice need not contain a perfect rendition of the applicable standard of care. Roberts II, supra at 692-694.
Examining the notice in its entirety, we conclude that no guesswork is necessary for Dr. DeFlorio to appreciate that the basis of the claim against him was that he should not have left plaintiff sitting untreated and unattended in the emergency room; he should have taken some action other than the attempted spinal taps. But without any particularization of which listed actions in the alleged standard of care for health care providers apply to Dr. DeFlorio, the notice is insufficient to inform him of what he did not do or should have done to comply with the applicable standard of care. Because the notice examined in its entirety does not comport with plaintiffs responsibility to make a good-faith averment of all the requirements of the statute pertaining to Dr. DeFlorio, we uphold the trial court’s determination that plaintiff failed to satisfy MCL 600.2912b(4)(b).
Next, plaintiff claims that a defect in the notice required under MCL 600.2912b does not prevent her from taking advantage of the presuit notice tolling provision in MCL 600.5856. Although plaintiff failed to present this legal issue to the trial court, we will consider plaintiffs argument because the trial court specifically held that a notice that does not comply with the requirements set forth in MCL 600.2912b(4) does not toll the period of limitations under MCL 600.5856(c). This Court may overlook preservation requirements to consider an issue that is necessary to a proper resolution of the case. Laurel Woods Apartments v Roumayah, 274 Mich App 631, 640; 734 NW2d 217 (2007).
First, we note that the trial court relied on MCL 600.5856(c) as amended by 2004 PA 87, effective April 22, 2004. This statute was amended after the alleged malpractice in this case. As amended, MCL 600.5856(c) provides that the period of limitations is tolled
[a]t the time notice is given in compliance with the applicable notice period under [MCL 600.2912b], if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.
Conversely, at the time of the alleged malpractice in this case, former MCL 600.5856(d) provided that the period of limitations is tolled
[i]f, during the applicable notice period under [MCL 600.2912b], a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with [MCL 600.2912b].
In general, amendments to statutes of limitations apply prospectively. See Davis v State Employees’ Retirement Bd, 272 Mich App 151, 155; 725 NW2d 56 (2006). But there is no vested right in the running of a period of limitations, except when it has completely run and the action is barred. In re Straight’s Estate, 329 Mich 319, 325; 45 NW2d 300 (1951). Here, enacting § 1 of the amendatory act provides that it applies to civil actions filed after April 22, 2004, unless the period of limitations expired before that date. Thus, the amended statute applies to this case.
Nonetheless, we find no merit to plaintiffs argument that the amended statute substantively changed the effect of the presuit notice tolling provision. An unambiguous statute is enforced according to its plain language. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 66; 642 NW2d 663 (2002) (Roberts I). 2004 PA 87 did not change the substance of the presuit notice tolling provision.
Plaintiffs reliance on Kirkaldy v Rim, 478 Mich 581; 734 NW2d 201 (2007), as support for how the presuit notice tolling provision in MCL 600.5856(c) should operate, is misplaced. The issue in Kirkaldy involved application of the tolling provision in MCL 600.5856(a) under the former version of the statute, before it was amended by 2004 PA 87. Under MCL 600.5856(a), tolling commences “[a]t the time the complaint is filed and a copy of the summons and complaint are served on the defendant.” See Kirkaldy, supra at 584 n 4. Viewed in conjunction with the requirement in MCL 600.2912d that the complaint be accompanied by an affidavit of merit, our Supreme Court concluded that the “period of limitations is tolled when a complaint and affidavit of merit are filed and served on the defendant” and that the tolling continues, even if the affidavit is defective, until the presumptive validity of the affidavit is successfully challenged in a subsequent judicial proceeding. Kirkaldy, supra at 585-586.
This case is distinguishable from Kirkaldy because in that case the plaintiff had presumably filed a notice of intent in compliance with MCL 600.2912b, and the presuit notice tolling provision in MCL 600.5856(c) was not at issue. See Boodt, supra at 564. And while this Court recently concluded in Potter v McLeary (On Remand), 278 Mich App 279, 286; 748 NW2d 599 (2008), that the Supreme Court’s treatment of deficient affidavits of merit in Kirkaldy applies by analogy to deficient notices of intent under MCL 600.2912b so as to permit a notice of intent to toll the period of limitations unless and until the notice is successfully challenged in a judicial proceeding, this Court did not consider the specific presuit notice tolling provision in MCL 600.5856(c). Further, this Court did not apply our Supreme Court’s holding in Roberts I, supra at 67, that compliance with MCL 600.2912b is required to toll the period of limitations because the plain language of MCL 600.5856 requires the plaintiff to comply with the provisions of MCL 600.2912b in order to toll the limitations period. Although MCL 600.5856 was amended after our Supreme Court’s decision, because the substantive requirement of the presuit notice tolling provision was not changed, the holding in Roberts I that compliance with MCL 600.2912b is required to toll the period of limitations remains valid, binding law.
We are bound to follow a published opinion of this Court establishing a rule of law that our Supreme Court or a special panel of this Court has not reversed or modified. MCR 7.215(J)(1). But under the doctrine of stare decisis, this Court must follow decisions of our Supreme Court. People v Hall, 249 Mich App 262, 270; 643 NW2d 253 (2002), remanded on other grounds 467 Mich 888 (2002). “[I]t is the Supreme Court’s obligation to overrule or modify case law if it becomes obsolete, and until this Court takes such action, the Court of Appeals and all lower courts are bound by that authority.” Boyd v W G Wade Shows, 443 Mich 515, 523; 505 NW2d 544 (1993), overruled on other grounds by Karaczewski v Farbman Stein & Co, 478 Mich 28 (2007). We conclude that Roberts I remains valid precedent. See Boodt, supra at 561-563. Consequently, we reject plaintiffs claim that the defective notice of intent was sufficient to toll the period of limitations with respect to Drs. Bradford, Ekbom, Freer, and DeFlorio.
We also reject plaintiffs claim that she should have been afforded an opportunity to file an amended notice of intent to correct any deficiency in the notice of intent mailed on July 20, 2005, pursuant to MCL 600.2301. Plaintiff has failed to establish that she preserved this issue by presenting it to the trial court. See Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994).
Even if we were to overlook this deficiency on appeal, Laurel Woods Apartments, supra at 640, we would reject plaintiffs argument because MCL 600.2301 has no application to the presuit notice required under MCL 600.2912b. Boodt, supra at 563 n 4. Dismissal with prejudice is an appropriate remedy when a period of limitations has expired. See Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000). Prejudice to a defendant is not a factor in applying the relevant medical malpractice statutes. See Burton v Reed City Hosp Corp, 471 Mich 745, 753; 691 NW2d 424 (2005).
Because the Legislature has not authorized retroactive amendment of the presuit notice to toll the period of limitations, plaintiff has not shown any error in the trial court’s failure to afford her an opportunity to amend the notice. Thus, plaintiff has not demonstrated any basis for disturbing the trial court’s determination that her malpractice claims against Drs. Bradford, Ekbom, Freer, and DeFlorio were time-barred. We affirm the trial court’s decision granting their motion for summary disposition and dismissing plaintiffs claims against them with prejudice.
V MALPRACTICE CLAIM AGAINST DR. KRAFCIK
The trial court’s grant of summary disposition in favor of Dr. Krafcik was based on plaintiffs failure to file an affidavit of merit with the complaint that complied with MCL 600.2912d. Specifically, plaintiff failed to file an affidavit comporting with Dr. Krafcik’s proper board certification as an internal medicine specialist.
On appeal, plaintiff does not challenge the trial court’s ruling. Plaintiff only asserts that the trial court erred in dismissing her claim with prejudice on the basis of Kirkaldy. Although we find merit to plaintiffs argument, we will not reverse a trial court’s decision if the right result was reached, albeit for the wrong reason. Netter v Bowman, 272 Mich App 289, 308; 725 NW2d 353 (2006).
Here, the same deficiency in the July 20, 2005, presuit notice that exists with respect to Drs. Bradford, Ekbom, Freer, and DeFlorio also exists with respect to Dr. Krafcik. The only allegation in the notice with respect to Dr. Krafcik was that he was a member of the Department of Emergency Medicine. The notice was insufficient to toll the period of limitations under MCL 600.5856(c). As with plaintiffs claims against Drs. Bradford, Ekbom, Freer, and DeFlorio, dismissal with prejudice was appropriate because the period of limitations had expired.
We affirm.
WILDER, J., concurred.
The University of Michigan defendants were dismissed without prejudice pursuant to a stipulated order dated July 31, 2006.
MCL 600.5855 provides:
If a person who is or may be hable for any claim fraudulently conceals the existence of the claim or the identity of any person who is hable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.
We note that plaintiff submitted additional evidence with her motion for reconsideration of the trial court’s denial of her motion to amend the complaint, but plaintiff does not challenge the trial court’s decision to deny the motion for reconsideration.
The amended version of MCL 600.5856(a) provides that tolling commences “[a]t the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.”
As a practical matter, we note that MCL 600.2912b establishes an interval of time in which a potential plaintiff is not permitted to sue for medical malpractice. If the interval ends before the period of limitations expires, the presuit notice tolling provision in MCL 600.5856 is of no consequence. See Mayberry v Gen Orthopedics, PC, 474 Mich 1, 8-9; 704 NW2d 69 (2005). | [
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WHITE, P.J.
In this action for a declaratory judgment, defendant, Commissioner of the Office of Financial and Insurance Services (OFIS), appeals as of right the circuit court’s opinion and order granting a permanent injunction to plaintiffs and intervening plaintiffs. The circuit court declared certain administrative rules (rules) promulgated by defendant commissioner illegal, invalid, and unenforceable, and permanently enjoined defendant from enforcing the rules against any plaintiff or intervening plaintiff in the action. The members of this panel have come to different conclusions regarding the issues presented, and have written three separate opinions. Because Judge KELLY concludes that the circuit court erred in permitting plaintiffs to maintain an original action and would vacate the circuit court’s order on that basis, and I conclude that the circuit court erred in failing to base its review on the administrative record, and in accepting additional evidence, and further erred in its conclusions on the merits, at least with regard to insurance issued under chapter 21 of the Insurance Code, this Court vacates the circuit court’s order granting a permanent injunction and declaring defendant’s rules illegal, unenforceable, and void, and lifts the stay imposed on defendant commissioner’s enforcement of the rules.
i
A significant issue facing defendant commissioner when she assumed office in April 2003 was the use by insurance companies of credit report scores in setting policyholder rates (referred to as “insurance scoring”). Defendant’s predecessor, Commissioner Frank M. Fitzgerald, had addressed the issue by conducting a review of insurance scoring and issuing a bulletin on February 14, 2003, “directing insurers to take eight specific actions to comply with the above statutes if they chose to continue using insurance credit scoring.”
As a result of an increase in consumer complaints, defendant conducted another review of insurance scoring, and ultimately decided to address the practice by proposing administrative rules. Defendant held four public hearings in July 2004; 418 persons attended and more than 800 persons submitted written comment (an unprecedented number in the OFIS’s history, according to defendant). A number of insurance industry representatives testified at the hearings or submitted written documentation.
On October 1, 2004, after the four public hearings, defendant submitted the proposed rules to the Office of Regulatory Reform (ORR) along with the OFIS report. The ORR certified that the proposed rules were legal on January 4, 2005. Defendant formally adopted the rules on January 18, 2005. The Michigan Legislature’s Joint Committee on Administrative Rules sent Governor Jennifer M. Granholm a notice of objection to the proposed rules on February 17, 2005, stating that the “[cjommittee has affirmatively determined by a concurrent majority vote that” (1) the agency is exceeding the statutory scope of its rulemaking authority, (2) the rules are in conflict with the Insurance Code of 1956, and (3) the rules are arbitrary and capricious. However, the Legislature failed to pass legislation preventing implementation of the rules.
The ORR filed the rules with the Secretary of State on March 25, 2005. Plaintiffs filed a complaint for declaratory and injunctive relief on March 29, 2005, challenging the validity of the rules, and a motion for a preliminary injunction. The proposed intervenors, Michigan Insurance Coalition and Citizens Insurance Company of America, joined in plaintiffs’ motion for a preliminary injunction and filed a motion to intervene as party plaintiffs. The parties stipulated their intervention.
The circuit court’s opinion and order granting a permanent injunction held the rules illegal, invalid, and unenforceable and permanently enjoined defendant from enforcing them, stating, in part:
All parties were given an opportunity to present evidence at the hearing on the Plaintiffs’ motion for preliminary injunction on April 15,2005. The Defendant indicated it did not contest the factual statements contained in Plaintiffs’ affidavits, stating that Defendant believed them to be irrelevant. Defendant stated that the records from public hearings conducted by Defendant pursuant to the Administrative Procedures Act were the only relevant evidence the Court should consider.
The Court declines to review the record of the public hearings for the reason that it consists largely of position statements and opinions which may not be admissible under the rules of evidence, and more importantly because the Court finds it unnecessary to address whether the rules are arbitrary and capricious as alleged in Count 2 of Plaintiffs’ complaint. The Court views the dispositive issues before it as questions of the legality of the Defendant’s rules, given the Commissioner’s rule-making authority.
Implementation of the OFIS rules would cause irreparable loss to Plaintiffs because Plaintiffs would incur the expenditure of millions of dollars in unrecoverable implementation costs and also because they would cause disruption of the entire casualty insurance market in the State of Michigan.
IT IS ORDERED that Plaintiffs’ request for declaratory relief is granted, and the OFIS rules, R 500.2151-2155 are declared illegal, invalid, and unenforceable.
IT IS FURTHER ORDERED that Defendant is permanently enjoined from enforcing these rules against any Plaintiff in this action.
n
Defendant asserts that the validity of the OFIS rules may only be reviewed by petition for judicial review in the manner provided by § 101 of the Administrative Procedures Act (APA), MCL 24.301, and that under § 104 of the APA, MCL 24.304, such review is confined to the agency record. Thus, defendant maintains, the circuit court erred in entertaining plaintiffs’ original action and, additionally, in refusing to consider the agency record. Defendant further asserts that even if an original action were proper, plaintiffs nevertheless failed to comply with the requirement of MCL 24.264 that a plaintiff first request a declaratory ruling from the agency. Notwithstanding the foregoing arguments, however, defendant asserts that although the circuit court erred in entertaining the action and in refusing to consider the agency record, this Court, nevertheless, should address the substantive issues and reverse the determination that the rules are invalid.
Plaintiffs assert that MCL 500.244(1) does not provide an exclusive procedure or remedy for challenging the validity and legality of the rules and that an original action under MCL 24.264 was proper because no judicial or quasi-judicial function was involved; rather, defendant was acting in a quasi-legislative capacity in promulgating the rules. Further, there is no need to request a declaratory ruling where the validity, rather than the applicability, of rules is at issue.
A
MCL 24.264 (§ 64 of chapter 3 of the APA) addresses declaratory judgment actions regarding the validity or applicability of administrative rules and provides:
Unless an exclusive procedure or remedy is provided by a statute governing the agency, the validity or applicability of a rule may be determined in an action for declaratory judgment when the court finds that the rule or its threatened application interferes with or impairs, or imminently threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The action shall be filed in the circuit court of the county where the plaintiff resides or has his principal place of business in this state or in the circuit court for Ingham County. The agency shall be made a party to the action. An action for declaratory judgment may not be commenced under this section unless the plaintiff has first requested the agency for a declaratory ruling and the agency has denied the request or failed to act upon it expeditiously. This section shall not be construed to prohibit the determination of the validity or applicability of the rule in any other action or proceeding in which its invalidity or inapplicability is asserted. [Emphasis added.]
Section 244(1) of the Insurance Code, MCL 500.244(1), provides:
A person aggrieved by a final order, decision, finding, ruling, opinion, rule, action, or inaction provided for under this act may seek judicial review in the manner provided for in chapter 6 of the administrative procedures act of 1969, 1969 FA 306, MCL 24.301 to 24.306. [Emphasis added.]
Chapter 6 of the APA provides, in pertinent part:
When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review by the courts as provided by law. Exhaustion of administrative remedies does not require the filing of a motion or application for rehearing or reconsideration unless the agency rules require the filing before judicial review is sought. A preliminary, procedural or intermediate agency action or ruling is not immediately reviewable, except that the court may grant leave for review of such action if review of the agency’s final decision or order would not provide an adequate remedy. [MCL 24.301. ]
Judicial review of a final decision or order in a contested case shall be by any applicable special statutory review proceeding in any court specified by statute and in accordance with the general court rules. In the absence or inadequacy thereof, judicial review shall be by a petition for review in accordance with [MCL 24.303 to 24.305]. [MCL 24.302. ]
Except as provided in subsection (2), a petition for review shall be filed in the circuit court for the county where petitioner resides or has his or her principal place of business in this state, or in the circuit court for Ingham county. [MCL 24.303(1).]
The review shall be conducted by the court without a jury and shall he confined to the record. In a case of alleged irregularity in procedure before the agency, not shown in the record,[ ] proof thereof may be taken by the court. The court, on request, shall hear oral arguments and receive written briefs. [MCL 24.304(3) (emphasis added).]
B
In Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483, 495-496; 586 NW2d 563 (1998) (Northwestern), this Court held that MCL 500.244(1) establishes the exclusive procedure for challenging the insurance commissioner’s decisions. The plaintiff insurance companies had challenged an administrative decision of the insurance commissioner rejecting their applications for requalification by filing both a petition for review under MCL 500.244 and chapter 6 of the APA and an original action in the circuit court. The circuit court dismissed the original action, concluding that the plain tiff insurance companies were limited to a petition for review. This Court affirmed, noting:
The commissioner’s decisions may be challenged only as provided in the Insurance Code, i.e., “in the manner provided for in chapter 6 of the administrative procedures act. ...” MCL 500.244(1); MSA 24.1244(1). Under the APA, administrative decisions are “subject to direct review by the courts as provided by law.” MCL 24.301; MSA 3.560(201) (emphasis added). Review is to be sought by filing a petition for review, MCL 24.302; MSA 3.560(202), in the circuit court, MCL 24.303(1); MSA 3.560(203)(1), within sixty days of the date when the agency’s decision was mailed, MCL 24.304(1); MSA 3.560(204)(1). Clearly, an independent action attacking the agency’s decision is not contemplated. [Northwestern, supra at 495-496 (footnote omitted).]
In the instant case, plaintiff insurers contend that Northwestern involved an “adjudicatory” action, while this case involves a “legislative” action, so Northwestern does not control. In Bio-Magnetic Resonance, Inc v Dep’t of Pub Health, 234 Mich App 225, 232 n 7; 593 NW2d 641 (1999), this Court, in passing, referred to Northwestern as involving review of agency action that is judicial or quasi-judicial. While Northwestern did involve agency action that was judicial or quasi-judicial, the Northwestern Court made no such distinction in considering whether an original action could be maintained.
c
My colleagues disagree over whether plaintiffs properly commenced an original action, rather than a petition for review. Judge KELLY, following Northwestern, concludes that MCL 500.244(1) provides the exclusive procedure for challenging a rule promulgated by defendant, as well as defendant’s other actions and decisions. Judge ZAHRA agrees with plaintiffs that Northwestern, does not decide the question because that case involved a challenge to quasi-judicial action of the insurance commissioner, rather than the validity of a rule. In my view, Northwestern stands for the proposition that decisions of the insurance commissioner, even when not the product of a contested case proceeding under chapter 4 of the APA, are still to be reviewed pursuant to the procedure set forth in chapter 6 of the APA — by filing a petition for review in the circuit court — and cannot be challenged by way of an independent action in circuit court, although the standard of review depends on whether a hearing was required. Northwestern recognized the distinction between review of agency action that is quasi-legislative, such as rulemaking, and agency action that is quasi-judicial, and that the latter was involved in Northwestern, supra at 489 n 1, but it did not address whether MCL 500.244 provides the exclusive procedure and remedy for challenging the validity of a rule. Thus, I find Northwestern informative, but not controlling, and conclude that our decision should be based on an examination of the statutes themselves.
D
The Legislature referred to the APA throughout the Insurance Code, making the insurance commissioner subject to the act when promulgating rules, imposing penalties, and conducting hearings. Section 64 of the APA, MCL 24.264, the declaratory judgment provision, is found in chapter 3 of the APA, which sets forth the procedures to be followed by an agency in promulgating rules, the procedure for review of rules by the Legislature, the procedures for publishing rules, and the effect of rules filed under these procedures. At the end of chapter 3, the Legislature provided, in § 63, MCL 24.263, that an interested person may seek a declaratory ruling from an agency regarding the applicability of a rule, which ruling is subject to judicial review under chapter 6 of the APA, and, in § 64, that unless an exclusive procedure or remedy is provided by a statute governing the agency, the validity or applicability of a rule may be determined in an action for declaratory judgment.
Before 1992, § 244 of the Insurance Code, MCL 500.244, provided:
(1) Any final order or decision made, issued, or executed by the commissioner under this insurance code shall be subject to review, after hearing had before the commissioner or a deputy commissioner without leave by the circuit court of Ingham county or the circuit court of the county in which the principal office in this state of the insurer aggrieved by such order or decision is located, or where the person resides against whom such order is directed.
(2) A petition as of right for the review of such order or decision shall be filed within 30 days.... If no such petition for review is filed within the said 30 days, the party aggrieved shall be deemed to have waived the right to have the merits of the order or decision reviewed, and there shall be no trial of the merits thereof by any court to which application may be made by petition or otherwise....
(3) The cause shall be heard before the said court as a civil case in chancery upon such transcript of the record and such additional evidence as may be offered by any of the parties at the hearing of said cause before the court. It shall be the duty of the court to hear and determine such petition with all convenient speed.... The court shall have the jurisdiction to affirm, modify, or to set aside the order or decision of the commissioner and to restrain the enforcement thereof.
Thus, before 1992, a party aggrieved by an order or decision of the insurance commissioner made after a hearing had a right under MCL 500.244(1) to challenge that decision in circuit court. And, in contrast to a petition for review under chapter 6 of the APA, that review was not confined to the record made before the agency. Rather, the case was heard “as a civil case in chancery upon such transcript of the record and such additional evidence as may be offered by any of the parties at the hearing....” MCL 500.244(3).
The 1992 amendment of MCL 500.244 effected a number of changes. First, it eliminated the special procedure for obtaining review of a decision of the insurance commissioner and, instead, provided for review under chapter 6 of the APA. Second, in so doing, it eliminated the right to make a record before the circuit court and provided that review would be confined to the record made before the agency. Third, it eliminated the reference to the decision of the insurance commissioner having been made after a hearing, thus extending the provision to decisions and actions of the insurance commissioner even in cases where a hearing is not required under the Insurance Code.
Under the former version of MCL 500.244(1), an action for declaratory judgment under § 64 of the APA would have been permissible because the Insurance Code, MCL 500.244(1), did not provide an exclusive procedure or remedy for determining whether a rule was applicable or valid. And, were it not for the inclusion of the word “rule” in the present version of MCL 500.244(1), it still would be clear that plaintiffs could properly challenge the validity of the rules by commencing an original action for declaratory judgment under § 64 of the APA. The question is whether the inclusion of “rule” in the actions of the insurance commissioner reviewable by petition for judicial review, and deletion of language confining the section’s application to cases in which there has been a hearing, shows a legislative intent to provide that judicial review under chapter 6 of the APA is the exclusive procedure for challenging the validity of a rule, to the exclusion of § 64 of chapter 3 of the APA, which otherwise would be, and had been, applicable. Given the Insurance Code’s general incorporation of the provisions of the APA, and specifically the provisions concerning rules, I conclude that the Legislature did not so intend.
MCL 500.244 does not state that a rule may only be challenged by a petition for review under chapter 6 of the APA, and does not explicitly preclude an action for a declaratory judgment under chapter 3 of the APA. On the other hand, it can be argued that having provided for judicial review under chapter 6 for a person aggrieved by a rule of the insurance commissioner, the Legislature intended that that procedure be followed exclusively. I agree that none of the other enumerated actions of the commissioner can be reviewed by commencing an independent action in circuit court. But this is not so much because MCL 500.244(1) provides an exclusive means of review as it is because the APA contemplates that agency actions will be reviewed in accordance with the APA when the statute governing the agency so provides, and MCL 500.244(1) so provides. It is a separate question whether an action under § 64 of chapter 3 of the APA is also permissible where applicable by its terms.
I conclude that MCL 500.244(1) does not provide an exclusive remedy or procedure for challenging the validity or legality of a rule. Rather, it provides that a person aggrieved by an action or decision, or even rule, of the insurance commissioner may seek judicial review under chapter 6 of the APA. It does not follow that a person may not seek a declaration that a rule is invalid under chapter 3 of the APA where the underlying statute otherwise incorporates the provisions of chapter 3, as does the Insurance Code. I also observe that MCL 500.244(1) refers to a person aggrieved by a final order, decision, finding, ruling, opinion, rule, action, or inaction provided for under the act. Plaintiffs are not aggrieved by the rules because the rules have not yet been applied to them, and they have not yet been subjected to any consequences. If they are not yet aggrieved, any challenge they have is not ripe for a petition for review under chapter 6 of the APA, and must be pursued as an action for a declaratory judgment under § 64 of chapter 3 of the APA. This is consistent with both the Insurance Code and the APA.
E
Having found that an action for a declaratory judgment pursuant to § 64 could properly be maintained, I conclude that in the instant case, the question whether the validity of the rules could properly be challenged in this manner, rather than by petition for judicial review under chapter 6 of the APA, is largely irrelevant because in either case the standard of review and the record upon which review must be conducted are identical. And, because in either case jurisdiction is in the circuit court, the court could have treated the complaint as a petition for judicial review if it deemed that appropriate. In either case, the court erred by failing to confine its review to the administrative record.
l
The circuit court erred in adjudicating the validity of the rules on the basis of an evidentiary record made before it. This is so without regard to whether an original action or judicial review was the proper avenue for challenging the rules.
Chapter 6 of the APA explicitly provides in MCL 24.304(3) that judicial review under that chapter is confined to the agency record. See also LeDuc, Michigan Administrative Law, § 9.01, p 597:
[Chapter 9: SCOPE OF JUDICIAL REVIEW]
§ 9:01 Scope of chapter
Scope of judicial review addresses the question of how much a court will undertake to substitute its judgment for that of an agency which has made a decision. How much a court will undertake to second-guess an agency is largely controlled by how it gets the case; the scope of review may he established by the Michigan Constitution, the relevant underlying statute, the Administrative Procedures Act, and the method of review used to get the case into a court.
In most cases, the scope of review is limited to the record made in the administrative proceeding under judicial challenge. An underlying statute may provide that limitation, as does the Administrative Procedures Act [citing MCL 24.304(3)]. Failure to heed those admonitions results in certain reversal [citing Roman v Secretary of State, 213 Mich App 592; 540 NW2d 474 (1995)].[ ]
Alternatively, accepting that an original action under § 64 of the APA was proper, the circuit court was still required to base its decision on the administrative record, and was without authority to expand that record. In Michigan Ass’n of Home Builders v Dep’t of Labor & Economic Growth Director, 481 Mich 496; 750 NW2d 593 (2008), our Supreme Court recently held that judicial review of a non-contested case, including a challenge to a rule promulgated after public hearings and challenged under § 64 of the APA, is limited to the administrative record, and the administrative record may not be expanded by a remand to the administrative agency. Additionally, the history of MCL 500.244 makes clear that the Legislature intended to abandon the prior procedure in which circuit courts took additional evidence on appeal in favor of judicial review based exclusively on the agency record. Thus, to the extent the circuit court’s decision was based on findings gleaned from the record made before it, rather than the administrative record, the decision should be vacated.
I cannot agree with Judge ZAHRA’s conclusion that the circuit court’s failure to limit its review to the agency record is harmless because plaintiffs assert a purely legal challenge. As discussed later in this opinion, the circuit court’s decision was based on conclusions regarding insurance scoring that were based on the record made in the circuit court. This was error.
2
Similarly, the standard governing the judicial determination whether the rules are valid is the same, without regard to the proper form of the challenge. In Northwestern, supra at 487-490, this Court discussed the standard of review circuit courts must apply to decisions of the insurance commissioner:
The Michigan Constitution provides that “[a]ll final decisions ... of any administrative officer or agency existing under the constitution or hy law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions ... are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.” Const 1963, art 6, § 28 (emphasis added). Whether “a hearing is required” is determined by reference to the statute governing the particular agency. See Attorney General v Public Service Comm, 206 Mich App 290, 293, 295-296; 520 NW2d 636 (1994). “Where no hearing is required, it is not proper for the circuit court or this Court to review the evidentiary support of an administrative agency’s determination.” Brandon School Dist v Michigan Ed Special Services Ass’n, 191 Mich App 257, 263; 477 NW2d 138 (1991) (emphasis added); see also LeDuc, Michigan Administrative Law, § 9:02, p 5. In such cases, “[j]udicial review is not de novo and is limited in scope to a determination whether the action of the agency was authorized by law.” Brandon, supra at 263.
There is apparently much confusion regarding the meaning of this constitutional standard, whether an agency’s decision is authorized by law. See LeDuc, § 9.05, pp 9-10. We agree that, in plain English, authorized by law means allowed, permitted, or empowered by law. Black’s Law Dictionary (5th ed). Therefore, it seems clear that an agency’s decision that “is in violation of statute [or constitution], in excess of the statutory authority or jurisdiction of the agency, made upon unlawful procedures resulting in material prejudice, or is arbitrary and capricious,” is a decision that is not authorized by law. Brandon, supra at 263. We recognize that this interpretation is almost identical to the standards set out in the Administrative Procedures Act (APA). See MCL 24.306(1)... ; see also LeDuc (1998 supp), § 9:01, p 128. However, we find that is also a reasonable articulation of the constitutional standard because it focuses on the agency’s power and authority to act rather than on the objective correctness of its decision. We therefore adopt the Brandon Court’s formulation of whether an agency’s decision is authorized by law.
As noted by the parties, the Insurance Code provides that “[a] person aggrieved by a final order, decision, finding, ruling, opinion, rule, action, or inaction provided for under this act may seek judicial review in the manner provided for in chapter 6 of the [APA].” MCL 500.244(1). .. (emphasis added). The APA normally provides review only from decisions and orders in contested cases. See MCL 24.301.. . ; see also Martin v Stine, 214 Mich App 403, 409-410; 542 NW2d 884 (1995). As discussed above, the APA’s standards of review coincide with the authorized-by-law standard provided in the constitution, but the APA also allows an agency’s decision to be set aside if it is “[n]ot supported by competent, material and substantial evidence on the whole record” or if it is “[a]ffected by other substantial and material error of law.” MCL 24.306(l)(d) and (f)....
We agree with the commissioner that the Insurance Code incorporates only the procedure provided in the APA and not its standards of review.... Therefore, in the present case, because no contested hearing was required or held, the proper standard of review was that set out in Const 1963, art 6, § 28 and explained in Brandon, not the substantial evidence test or the substantial and material error of law test. [Emphasis in original.]
Northwestern involved agency action that was judicial or quasi-judicial, and not legislative or quasi-legislative. It is an open question whether Const 1963, art 6, § 28, even applies to quasi-legislative administrative actions. See Luttrell v Dep’t of Corrections, 421 Mich 93, 108-109; 365 NW2d 74 (1984) (Ryan, J., concurring). However, whether constitutionally required or not, this Court has applied a similar test when reviewing an agency’s rulemaking activity. In Chesapeake & O R Co v Pub Service Comm, 59 Mich App 88, 98-99; 228 NW2d 843 (1975), this Court applied a test that is similar to the Brandon test, stating:
Where an agency is empowered to make rules, courts employ a three-fold test to determine the validity of the rules it promulgates: (1) whether the rule is within the matter covered by the enabling statute; (2) if so, whether it complies with the underlying legislative intent; and (3) if it meets the first two requirements, when [sic] it is neither arbitrary nor capricious.
The Brandon and Chesapeake tests provide for more expansive judicial review than if Const 1963, art 6, § 28, does not apply. In any event, the rules can be subject to no greater judicial scrutiny than provided in Brandon and Chesapeake.
HI
Judge KELLY does not reach the merits of the circuit court’s decision. Judge ZAHRA concludes that the circuit court correctly concluded that defendant exceeded her rulemaking authority under the Insurance Code. I conclude that the rules pass muster as applied to insurance issued under chapter 21 of the Insurance Code. With respect to insurance issued under chapters 24 and 26,1 would vacate the circuit court’s order and remand for review based on the administrative record. I separately apply the Brandon test to the two groups of insurance.
A
Defendant has statutory authority to “promulgate rules and regulations ... as [she] may deem necessary to effectuate the purposes and to execute and enforce the provisions of the insurance laws of this state in accordance with the provisions of [the APA].” MCL 500.210. The rules are within the matter covered by the enabling statute. Further, the rules were promulgated pursuant to lawful procedures as set forth in the APA. This conclusion applies to insurance under all three chapters.
B
Plaintiffs assert that the rules are in excess of defendant’s statutory authority, and are contrary to the legislative intent because they disallow rates without a prior hearing as required by MCL 500.2114, 500.2418, and 500.2618. The circuit court and Judge ZAHRA agree. I reject this argument because defendant concedes that plaintiffs are entitled to contested case hearings if they file rates that are not in compliance with the rules and if defendant disallows the rates on that basis. Admittedly, the hearing would be somewhat limited if the rules are found valid in these proceedings. However, plaintiffs could have eschewed a direct, declaratory challenge to the rules under § 64, and simply filed rates in conflict with the rules. Defendant would then have been obliged to initiate hearings under MCL 500.2114(2). I do not agree with Judge ZAHRA’s conclusion that the substance of such hearings would be confined to the question whether the rates comply with the rules. Rather, I believe the validity of the rules would be subject to challenge in the contested case proceeding. Thus, the only reason the rules have the effect of disallowing rates without a contested case hearing is that plaintiffs chose to preempt application of the rules by challenging them directly. Had they not commenced this proceeding, they would have been free to challenge the validity of the rules in contested case proceedings addressed to the question whether the filed rates meet the requirements of §§ 2109 and 2111 of the Insurance Code, MCL 500.2109 and 500.2111. Thus, I do not agree that the rules impermissibly invalidate rates without a meaningful contested case hearing.
Further, MCL 500.2114, 500.2418, and 500.2618, which provide for contested case hearings where rates are disallowed, are not inconsistent with a conclusion that defendant has authority under MCL 500.210 to conduct public hearings and promulgate rules announcing a conclusion that a certain rating factor or practice violates the Insurance Code, and that insurers should take certain specific actions in order to comply with the Insurance Code in the future. All that is required is that the rules so promulgated be within the statutory authority or jurisdiction of the agency, be made upon lawful procedures, be consistent with the Insurance Code, and not be arbitrary or capricious. Insurers retain the right to file rates in conflict with any such rules and to both defend the rates under the rules and challenge the rules as being invalid in contested case hearings. Thus, I cannot agree with Judge ZAHRA’s conclusion that the Insurance Code prohibits the promulgation of rules that affect rates prospectively.
c
Plaintiffs assert, and the circuit court agreed, that the rules impermissibly lower rates without a finding, as required by MCL 500.2109 and MCL 500.2403, that the rates are excessive. However, the rules simply disallow insurance scoring and provide a formula by which an insurer can satisfy defendant that its rates have been properly adjusted to eliminate the effects of insurance scoring. Plaintiffs have conceded that when the formula is applied, the same total amount of premium dollars is collected; but the premium cost is allocated differently among the insureds. This is not a reduction in rates, but rather a reallocation in premium cost on the basis of the disallowance of a rating factor. Thus, I reject this argument as it relates to insurance issued under all three chapters.
D
Plaintiffs also argue that the rules are contrary to statute and legislative intent because they disallow rates that are in compliance with the Insurance Code. I disagree with regard to insurance governed by chapter 21.
MCL 500.2109, 500.2110, and 500.2111 clearly set forth the rating factors that can be used for automobile and home insurance. Insurance scoring is not among them. Further, the procedure for authorizing the utilization of additional factors set forth in MCL 500.2111(9) was not followed. Plaintiffs assert that insurance scoring is permissible under MCL 500.2110a, which provides, in pertinent part:
If uniformly applied to all its insureds, an insurer may establish and maintain a premium discount plan utilizing factors in addition to those permitted by section 2111 for insurance if the plan is consistent with the purposes of this act and reflects reasonably anticipated reductions in losses or expenses.
Defendant asserts, and I agree, that insurance scoring is not a premium discount plan as contemplated by MCL 500.2110a because it does not reflect “reasonably anticipated reductions in losses or expenses.” The discount is not given because the insured has taken action, such as purchasing airbags or a theft-deterrent system, which may reduce the insured’s losses. Rather, the discount is provided because the insurer has determined that certain characteristics of the insured make it more likely that the insured will make fewer or less costly claims. Pivotal to defendant’s reasoning is the fact that with insurance scoring the total amount of premiums collected, and losses paid, remains the same; the base rates are simply adjusted upward to allow plaintiffs to grant discounts, or larger discounts, to those with better insurance scores. The premium cost is thereby shifted from persons with better insurance scores to persons with poorer insurance scores. This is clearly an unapproved rating factor, not a discount. Defendant’s construction of MCL 500.2110a is not contrary to law or legislative intent. Further, as applied to insurance issued under chapter 21, the rules reflect a determination that insurance scoring is neither a permissible rating factor under the statute nor a permissible discount. This determination is neither arbitrary nor capricious. I thus conclude that with regard to insurance issued under chapter 21, the circuit court erred in concluding that the rules are illegal, invalid, and unenforceable because they are beyond defendant’s rulemaking authority.
E
Regarding insurance issued under chapter 24, MCL 500.2426 provides:
No manual of classifications, rule, rating plan, or any modification of any of the foregoing which measures variations in hazards or expense provisions, or both, and which has been filed pursuant to the requirements of this chapter shall be disapproved if the rates thereby produced meet the requirements of section 2403(l)(d) (rate standards).
Regarding insurance issued under chapter 26, MCL 500.2626 provides:
No manual, minimum, class rate, rating schedule, rating plan, rating rule, or any modification of any of the foregoing which has been filed pursuant to the requirements of [this chapter] shall he disapproved if the rates thereby produced meet the requirements of this chapter.
Sections 2426 and 2626 include the “unfairly discriminatory” standard, which provides:
Rates shall not be excessive, inadequate, or unfairly discriminatory. A rate shall not be held to be excessive unless the rate is unreasonably high for the insurance coverage provided and a reasonable degree of competition does not exist with respect to the classification, kind, or type of risks to which the rate is applicable.... A rate for a coverage is unfairly discriminatory in relation to another rate for the same coverage, if the differential between the rates is not reasonably justified by differences in losses, expenses, or both, or by differences in the uncertainty of loss for the individuals or risks to which the rates apply. A reasonable justification shall be supported by a reasonable classification system; by sound actuarial principles when applicable; and by actual and credible loss and expense statistics or, in the case of new coverages and classifications, by reasonably anticipated loss and expense experience. A rate is not unfairly discriminatory because the rate reflects differences in expenses for individuals or risks with similar anticipated losses, or because the rate reflects differences in losses for individuals or risks with similar expenses. Rates are not unfairly discriminatory if they are averaged broadly among persons insured on a group, franchise, blanket policy, or similar basis. [MCL 500.2403(l)(d); MCL 500.2603(l)(d).]
Plaintiffs argue, and the circuit court found, that the rules are in excess of defendant’s authority because they invalidate rates that otherwise comply with the provisions of chapters 24 and 26, in violation of §§ 2426 and 2626. Defendant asserts that the rules are authorized because they are based on a finding that insurance scoring results in rates that are unfairly discriminatory.
Defendant based the rules on conclusions drawn from her review of the insurance scoring practices of the industry and the hearings held to elicit and consider the responses to her conclusions and proposed rules based thereon. Defendant found that that the underlying data and the operative formulas used by insurance companies are often inaccurate and inconsistent, that consumers are not provided with enough information to question the scoring and resulting premiums, and that the studies relied on by the industry are inadequate and unpersuasive. The circuit court refused to review this determination on the basis of the agency record, stating:
The Court declines to review the record of the public hearings for the reason that it consists largely of position statements and opinions which may not be admissible under the rules of evidence, and more importantly because the Court finds it unnecessary to address whether the rules are arbitrary and capricious as alleged in Count 2 of Plaintiffs’ complaint. The Court views the dispositive issues before it as questions of the legality of the Defendant’s rules, given the Commissioner’s rule-making authority.
While the circuit court framed the question as a purely legal one, its conclusion that the rules are invalid because they exceed defendant’s statutory authority was based on factual conclusions that were based solely on the record made in the circuit court, and which ignored the agency record. The court found as fact that insurance scores accurately reflect differences in risk:
The Defendant disputes the notion that those with better insurance scores present lower insurance risks and lower insurance costs, but the evidence presented establishes a strong correlation between insurance scores and risk of loss and expenses.
The evidence clearly establishes that, on average, a policyholder with a higher insurance score presents a lower risk and lower expense (due to lower number of claims) than a policyholder with a lower insurance score.
On the basis of this factual finding, the circuit court concluded that the rules are invalid because they disallow rate filings that otherwise comport with the statute:
Since rating plans utilizing insurance scores measure differences in risk that have a probable effect on losses or expenses, such plans are clearly authorized by the Insurance Code. MCL 500.2403(l)(c); 500.2603(l)(c). The statutory language only requires a probable effect on losses or expenses. The industry’s experience clearly shows an actual effect on losses and expenses.
The Commissioner clearly lacks any authority to adopt a rule banning the use of insurance scores because the Insurance Code states that no rating plan shall be disapproved if the rates meet these rate standard requirements. MCL 500.2426; 500.2626. [Emphasis in original.]
Thus, the circuit court’s conclusion that insurance scoring meets the rate standard requirements of MCL 500.2403 and 500.2603 was based on its rejection of defendant’s conclusions drawn from the administrative record and its adoption of its own conclusions drawn from the evidence submitted in this action. As discussed earlier, the circuit court was obliged to confine its review to the administrative record. Michigan Ass’n of Home Builders, supra.
CONCLUSION
I would reverse the circuit court’s order and injunction with regard to insurance issued under chapter 21, vacate the circuit court’s order and injunction with regard to insurance issued under chapters 24 and 26, and remand for proceedings consistent with this opinion concerning such insurance.
The order and injunction of the circuit court should be vacated and the stay imposed on enforcement of the rules should be lifted. I would not retain jurisdiction.
The practice of insurance scoring is explained in the report of the OFIS defendant submitted to the Legislature’s Joint Committee on Administrative Rules, referred to later in this opinion:
2. Purpose for the proposed rules and background:
Over the past five or more years, insurers in Michigan have gradually implemented a rating system for private passenger automobile, home, and other personal lines of insurance that classifies or rates consumers in part by use of information contained in the consumer’s credit report. Through data calls, filings, public hearings, consumer complaints, and research on this subject, the Office of Financial and Insurance Services (OFIS) has gathered information that establishes that Michigan insurers have increased their base rates over the same period of time in part to provide a discount or tiers of discounts for consumers with particular insurance credit scores or a particular score within a range of insurance credit scores. Insurers arrive at insurance credit scores by applying to the consumer’s credit report or credit information a model or formula either developed in house or purchased from Fair Isaac, ChoicePoint, or another vendor. Insurers usually secure the consumer’s credit report from one of the three major consumer reporting agencies — TransUnion, Experion [sic], or Equifax — though insurers may also consult other, smaller consumer reporting agencies for information. Each insurance company factors credit information into its classification system and may use different credit factors or attach different weights to different credit factors when rating for automobile, home, or other personal lines policies. To arrive at the premium charged an individual consumer, generally insurers use a “good” credit score to grant a larger percentage “discount” from the base rate, while a “poor” credit score results in a much smaller discount or no discount at all from the base rate.
The consumer typically receives a premium notice or quote stating that credit information has been used in arriving at the premium and referring the consumer to a toll-free telephone number for the consumer reporting agency that supplied the credit report. A consumer questioning the premium charged must secure his or her credit report, check it for accuracy, dispute any inaccuracies, and upon getting an error corrected, then request the insurer to refigure the premium charged, all without access to the particular scoring model used by the insurer. Consumers with poor credit and consumers without current credit records — often the young and the old but also many other people who for one reason or another do not choose to borrow money at all or do not borrow from lenders who report to credit reporting agencies — find themselves charged more for automobile, home, or other personal lines of insurance because they do not qualify for any “good credit” discount. Additionally, in selling group coverage, some insurers impose a surcharge on persons with low insurance credit scores.
The purposes of [the] Essential Insurance [Act] are identified in the title to the Insurance Code of 1956, 1956 PA 218, MCL 500.100 et seq. (Insurance Code), as follows:
“.. to provide for the continued availability and affordability of automobile insurance and home insurance in this state and to facilitate the purchase of that insurance by all residents of the state at fair and reasonable rates.”
Insurance Credit Scoring is being used in rates filed under the Essential Insurance Act, Chapter 21 of the Insurance Code, MCL 500.2101 to 500.2131 (applicable to individual automobile and home insurance); Chapter 24 ... for casualty policies, MCL 500.2400 to 500.2484 (applicable to group automobile and home insurance and the other personal lines covering mobile homes, rental properties, recreational vehicles, motorcycles, and boats); and Chapter 26... for property policies, MCL 500.2600 to 500.2674 (applicable to group home insurance and the other personal lines also subject to Chapter 24). Since Michigan is a “file and use” state, insurers file their classifications and rates and begin to use them, without prior approval of the Commissioner. MCL 500.2106, MCL 500.2430, MCL 500.2628.
MCL 500.2109 requires that rates for automobile and home insurance “shall not be excessive, inadequate, or unfairly discriminatory;” and MCL 500.2109(l)(c) provides:
“A rate for a coverage is unfairly discriminatory in relation to another rate for the same coverage if the differential between the rates is not reasonably justified by differences in losses, expenses, or both, or by difference in the uncertainty of loss, for the individuals or risks to which the rates apply. A reasonable justification shall be supported by a reasonable classification system; by sound actuarial principles when applicable; and by actual and credible loss and expense statistics or, in the case of new coverages and classifications, by reasonably anticipated loss and expense experience.”
The same standard for “unfairly discriminatory” appears verbatim in Chapter 24, MCL 500.2403(l)(d), and in Chapter 26, MCL 500.2603(l)(d), for group automobile, group home, and other personal lines subject to those chapters....
Except for those companies exempt under MCL 500.2129, Michigan does not allow the use of insurance credit scoring to refuse to write an individual or group automobile or home policy, cancel a policy, or non-renew a policy. MCL 500.2117 (home), MCL 500.2118 (automobile), MCL 500.2105 (group).
MCL 500.2111 provides an exclusive list of the classifications or rating factors an automobile insurer and a home insurer may use, with the proviso in subsection (9) that an insurer may use additional factors only if the Commissioner finds, after an Administrative Procedures Act contested case hearing that the factors “would encourage innovation, would encourage insureds to minimize the risk of loss from hazards insured against, and would be consistent with the purposes of this chapter.” Insurance credit scoring is not among the factors specified in MCL 500.2111, and no automobile or home insurer has requested of the Commissioner a contested case hearing and an opportunity to prove that insurance credit scoring meets the quoted requirements of subsection (9).
MCL 500.2110a is the only statutory provision possibly justifying or authorizing the use of insurance credit scoring in Michigan. It states:
“If uniformly applied to all its insureds, an insurer may establish and maintain a premium discount plan utilizing factors in addition to those permitted by section 2111 for insurance if the plan is consistent with the purposes of this act and reflects reasonably anticipated reductions in losses or expenses....”
Under this section, the premium discount plan must be uniformly applied, be consistent with the purposes of the act, and reflect reasonably anticipated reductions in losses or expenses. Insurers typically grant premium discounts for safety equipment such as anti-lock breaks [sic], smoke alarms, or security systems, i.e. [,] items the presence of which might actually reduce losses. Though business and industry arguing for the use of insurance credit scoring invariably assert a correlation between low credit scores and increased frequency of claims and occasionally extrapolate that correlation to another claimed correlation between low credit scores and the increased cost of claims, no insurer and or entity conducting studies of credit scoring for insurers has yet to present any data even suggesting, much less proving, that the use of insurance credit scoring results in a reduction in losses.
In fact, OFIS has the statements of at least two insurers (who are on record as being opposed to this rule set) in which they admit that the use of insurance credit scoring does not result in a reduction in losses.
The ORR was abolished by Executive Order No. 2005-1, and is now the State Office of Administrative Hearings and Rules.
The rules, Mich Admin Code, R 500.2151 through 500.2155, provided:
R 500.2151 Definitions.
Rule 1. As used in these rules:
(1) “Insurance score” means a number, rating, or grouping of risks that is based in whole or in part on credit information for the purposes of predicting the future loss exposure of an individual applicant or insured.
(2) “Personal insurance” means private passenger automobile, homeowners, motorcycle, boat, personal watercraft, snowmobile, recreational vehicle, mobile-homeowners and non-commercial dwelling fire insurance policies. “Personal insurance” only includes policies underwritten on an individual or group basis for personal, family, or household use.
R 500.2152 Scope.
Rule 2. These rules apply to personal insurance.
R 500.2153 Use prohibited.
Rule 3. (1) For new or renewal policies effective on and after July 1, 2005, an insurer in the conduct of its business or activities shall not use an insurance score as a rating factor.
(2) For new and renewal policies effective on and after July 1, 2005, an insurer in the conduct of its business or activities shall not use an insurance score as a basis to refuse to insure, refuse to continue to insure, or limit coverage available.
R 500.2154 Filing requirements.
Rule 4. (1) For new and renewal policies effective on or after July 1, 2005, an insurer shall adjust base rates in the following manner:
(a) Calculate the sum of earned premium at current rate level for the period January 1, 2004 through December 31, 2004.
(b) Calculate the sum of earned premium at current rate level with all insurance score discounts eliminated for the period January 1, 2004 through December 31, 2004.
(c) Reduce base rates by the factor created from the difference of the number 1 and the ratio of the amount of subdivision (a) to the amount of subdivision (b).
(2) The insurer shall file with the commissioner a certification that it has made the base rate adjustment and documentation describing the calculation of the base rates adjustment. The insurer shall file the certificate and documentation not later than May 1, 2005.
R 500.2155 Failure to make required filing.
Rule 5. If an insurer fails to make the filing required under R 500.2154, in any proceeding challenging a related rate filing, then the insurer shall be subject to the presumption that the rate filing does not conform to rate standards.
Defendant commissioner filed a motion for change of venue, asserting that Ingham, not Barry, County was the proper venue because defendant’s principal office is in, and the cause of action arose in, Ingham County. The circuit court denied the motion to change venue and took plaintiffs’ motion for an injunction under-advisement.
Plaintiffs did not allege any such irregularity.
MCL 500.210 provides:
The commissioner shall promulgate rules and regulations in addition to those now specifically provided for by statute as he may deem necessary to effectuate the purposes and to execute and enforce the provisions of the insurance laws of this state in accordance with the provisions of Act No. 88 of the Public Acts of 1943, as amended, being sections 24.71 to 24.80 of the Compiled Laws of 1948, and subject to Act No. 197 of the Public Acts of 1952, as amended, being sections 24.101 to 24.110 of the Compiled Laws of 1948.
The acts referenced in this section are provisions that have since been repealed and replaced with the Administrative Procedures Act of 1969, MCL 24.201 et seq. MCL 24.312 provides that any reference to these acts is deemed to be a reference to the APA of 1969.
In Blue Cross & Blue Shield of Michigan v Comm’r of Ins, 155 Mich App 723, 729; 400 NW2d 638 (1986), this Court held that review of the commissioner’s decision was not under MCL 500.244(1), but rather under MCL 600.631, because there had been no hearing.
This action was filed within 60 days of the ORR’s filing of the rules with the Secretary of State, although not within 60 days of the commissioner’s adopting them. This illustrates the difficulty in applying the chapter 6 judicial review provisions to a challenge to a rule, because an agency’s action in promulgating a rule is subject to additional review before the rule is effective, but the time for seeking judicial review is measured from the date of mailing notice of the final decision or action of the agency.
Under § 64, the question arises whether plaintiffs were required to first request a declaratory ruling from defendant before filing an action for a declaratory judgment in circuit court. MCL 24.264, quoted earlier in this opinion, explicitly states that such a request is a necessary precondition to filing an action for a declaratory judgment under that section. On the other hand, Professor Don LeDuc has expressed the view that there is no exhaustion requirement where the validity, rather than the applicability, of rules is at issue. See LeDuc, Michigan Administrative Law, § 8:13, pp 576-577:
§ 8:13 Challenges to statutes, orders, and validity of rules
.. . Section 64 of the Administrative Procedures Act allows the action for declaratory judgment to determine the validity or applicability of a rule. Then, it says that the action under Section 64 cannot be brought unless the plaintiff has first requested the agency for a declaratory ruling and the agency has denied or failed to act on the request.
First, the section creates an exhaustion problem only for matters relating to rules, it does not have any reference to the provisions in Section 63 authorizing declaratory rulings as to the applicability of statutes or orders. Those, presumably, may be challenged in an action for declaratory judgment which is not based on Section 64, and which would be subject to the law’s limitations on such actions. Since Section 64 only applies to determining the validity or applicability of rules, the language in Section 63 regarding statutes and orders is irrelevant.
Second, Section 63 empowers an agency to issue a declaratory ruling only as to the applicability of a rule, not as to its validity. The reason for this is obvious, an agency is unlikely to find its own rules invalid and those rules are presumed to be valid anyway. Courts will ultimately determine the validity of a rule. Section 64 thus specifically empowers a court to hear an action for a declaratory judgment as to either the validity or applicability of a rule. The exhaustion requirement of Section 64 (requiring resort first to the submission of a declaratory ruling) applies only when a plaintiff wishes to challenge the applicability of a rule to an actual state of facts. Section 63 does not authorize an agency to issue a ruling on the validity of rules, so there is nothing to exhaust.
In Roman, this Court reversed the circuit court’s setting aside of the revocation of the petitioner’s driver’s license, concluding that judicial review of the Secretary of State’s revocation of a driver’s license is confined to consideration of the administrative record, which was not provided to the circuit court.
I must disagree with Judge Zahra’s assertion that “[i]n no uncertain terms, the OFIS rules, if deemed valid, would render invalid existing rate filings for all insurers who use insurance scoring to determine their rates.” Post at 378. By their express terms, the rules have no effect on existing rates, and operate prospectively only. While future rates may be invalidated by the rules, the onus is still on defendant to invalidate any rates that conflict with the rules.
I observe, however, that hoth plaintiffs and defendant recognize the value of a contested case in determining to what extent, under what conditions, and with respect to which insurance coverages insurance scores accurately reflect differences in losses and expenses. I note that if defendant were to confine the rules to insurance issued under chapter 21, she could challenge the use of insurance scoring under chapters 24 and 26 through contested case proceedings in accordance with the provisions regarding the disapproval of filings under those chapters. Similarly, in lieu of this challenge to the rules in an action for a declaratory judgment, plaintiffs could seek to establish their illegality in contested case hearings in the defense of their rates when challenged by defendant. | [
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WILDER, J.
This case is before this Court pursuant to our Supreme Court’s order remanding the case to this Court for consideration as on leave granted. Laffin v Laffin, 477 Mich 1066 (2007). On appeal, defendant challenges the trial court’s October 12, 2005, order denying her motion to set aside prior orders issued in 2004. We reverse the October 12, 2005, order, vacate the trial court’s April 28, 2004, and May 19, 2004, orders, and remand for further proceedings.
I
The parties were divorced in 1999. They agreed to binding arbitration to resolve issues of alimony, child support, and property division. Under the arbitration award, defendant received the marital home, subject to a payment of $62,500 to plaintiff, as his share of the equity in the home. Because defendant did not have liquid assets to pay plaintiff for his equity interest in the home, the parties agreed that plaintiff would be granted a credit of $62,500 toward his future child support obligations. When this credit was exhausted, plaintiff would begin paying child support in accordance with the Michigan Child Support Formula Manual (MCSFM). However, the consent judgment that the parties approved, and that was signed by the trial court, did not conform to these requirements. Instead, it provided as follows:
SUPPORT OF MINOR CHILDREN
IT IS FURTHER ORDERED AND ADJUDGED that support is determined to be $337.00 each week for the three minor children, $269.00 for two minor children, and $175.00 per week when there is one minor child.
IT IS FURTHER ORDERED AND FOUND that Plaintiff has paid in advance to Defendant $62,500.00 for child support, and that accordingly child support is fully prepaid for as long as same would be payable under Michigan law.
IT IS FURTHER ORDERED AND ADJUDGED that in the event Defendant should ever seek and obtain child support from Plaintiff that a sum in the exact amount of the child support awarded shall be paid by Defendant to Plaintiff as alimony.
ALIMONY
IT IS FURTHER ORDERED AND ADJUDGED that neither party hereto is entitled to any alimony and same is forever barred. [Emphasis added.]
In other words, the consent judgment provided that any future child support obligation imposed on plaintiff would result in a reciprocal alimony obligation imposed on defendant in the same amount.
In 2004, the friend of the court determined that plaintiffs $62,500 credit had been exhausted. It issued an income withholding order against plaintiffs income, requiring him to pay child support in accordance with the MCSFM. Plaintiff moved to terminate the income withholding order and require defendant to pay him alimony in an amount equal to his child support payments. Defendant opposed the motion, arguing that the reciprocal alimony provision was the result of plaintiffs fraud, and, in any event, constituted an unenforceable agreement to bargain away the children’s right to financial support. The trial court rejected this argument, concluding that defendant was obligated to comply with the reciprocal alimony provision, because she agreed to it, and granted plaintiffs motion in an order dated April 28, 2004. Defendant’s motion to amend the consent judgment was subsequently denied by the trial court, in an order dated May 19, 2004. Defendant’s motion for reconsideration of that order was also denied. Approximately a year later, the case was reassigned to another judge. Defendant thereafter filed a motion for rehearing or reconsideration of the April 28, 2004, and May 19, 2004, orders, which the trial court denied on October 12, 2005. The trial court also ordered plaintiff to pay child support, and ordered defendant to pay an equal amount of alimony in return.
Defendant filed an application for leave to appeal the October 12, 2005, order, which this Court denied. Laffin v Laffin, unpublished order of the Court of Appeals, entered May 26, 2006 (Docket No. 266299). On further appeal, our Supreme Court initially denied defendant’s application for leave to appeal, 477 Mich 941 (2006), but then granted a motion for reconsideration, vacated its prior order, and on reconsideration and in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. 477 Mich 1066 (2007).
II
We begin by addressing the underlying question whether the reciprocal alimony provision is void because it violates public policy. This is a question of law, which we review de novo. Terrien v Zwit, 467 Mich 56, 61; 648 NW2d 602 (2002).
A consent judgment is in the nature of a contract, and is to be construed and applied as such. Gramer v Gramer, 207 Mich App 123, 125; 523 NW2d 861 (1994). If no reasonable person could dispute the meaning of ordinary and plain contract language, the Court must accept and enforce contractual language as written, unless the contract is contrary to law or public policy. Rory v Continental Ins Co, 473 Mich 457, 468; 703 NW2d 23 (2005). In general, consent judgments are final and binding upon the court and the parties, and cannot be modified absent fraud, mistake, or unconscionable advantage. Staple v Staple, 241 Mich App 562, 564; 616 NW2d 219 (2000); Walker v Walker, 155 Mich App 405, 406-407; 399 NW2d 541 (1986).
Defendant contends that the reciprocal alimony provision is unenforceable, because it is contrary to the public policy of this state that parents may not bargain away their children’s right to support. She contends that the provision effectively nullifies the children’s entitlement to support, by obligating defendant to remit the same amount back to plaintiff, under the guise of alimony. We agree.
It is a well-established principle in Michigan that parties cannot bargain away their children’s right to support. Macomb Co Dep’t of Social Services v Westerman, 250 Mich App 372, 377; 645 NW2d 710 (2002); Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995). Consequently, “[a]n agreement by the parties regarding support will not suspend the authority of the court to enter a support order.” Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989).
Thus, the provision in the consent judgment, stating that plaintiffs $62,500 credit “fully prepaid” his child support obligation, could not prevent the court from entering a support order. Here, the consent judgment did not preclude the possibility of future child support, but, rather, imposed on defendant a reciprocal obligation to pay plaintiff the same amount in alimony as any child support plaintiff was required to pay. The trial court apparently believed that the parties successfully fashioned an agreement that did not violate public policy, even though it had the practical effect of relieving plaintiff of his future child support obligation.
Although the reciprocal alimony provision is distinct in form from a provision totally precluding child support, it is a distinction without a difference. The purpose and effect of the reciprocal alimony provision are to ensure that the parties and the children remain in the same position financially, regardless of plaintiffs child support obligations. Thus, any amount that plaintiff might be required to remit to defendant and the children as child support is automatically offset hy the payment of a like amount from defendant to plaintiff as alimony.
We conclude that enforcement of this arrangement would deprive the parties’ children of the child support they are entitled to by law, and, therefore, the reciprocal alimony provision is void as against public policy, because parties cannot bargain away their children’s right to support. Macomb Co Dep’t of Social Services, supra at 377. Additionally, an alimony obligation that is triggered only by an order of child support, and in an amount equal to the amount of child support, is inconsistent with the purpose of alimony. The main purpose of awarding spousal support is to balance the incomes and needs of the parties, without impoverishing either party. Moore v Moore, 242 Mich App 652, 654; 619 NW2d 723 (2000). Spousal support “is to be based on what is just and reasonable under the circumstances of the case.” Id. See also MCL 552.23(1). Periodic spousal support is subject to modification, on a showing of changed circumstances. Moore, supra. Any modification of spousal support must be based on new facts or changed circumstances arising after the judgment of divorce, and requires an evaluation of the circumstances as they exist at the time modification is sought. Gates v Gates, 256 Mich App 420, 434; 664 NW2d 231 (2003). By definition, changed circumstances cannot involve facts and circumstances that existed at the time the court originally entered a judgment. Id. at 435.
A prearranged reciprocal alimony provision that becomes effective automatically with the imposition of a child support obligation, without any regard to the parties’ current circumstances or need for spousal sup port, is inconsistent with the purpose of spousal support and violates the mandate that spousal support may be modified only on the basis of new facts or changed circumstances. Here, the reciprocal alimony obligation is not really alimony, but a refund or reimbursement of plaintiffs child support obligation that, both in form and effect, eliminates his child support obligation.
Finally, the trial court’s April 28, 2004, order and any other orders that serve to recognize and enforce the reciprocal alimony provision, or nullify plaintiffs obligation to pay child support, also violate MCL 552.605(2). MCL 552.605(2) provides that the court “shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau ....” A court may deviate from this formula if it “determines from the facts of the case that application of the child support formula would be unjust or inappropriate” and articulates on the record its reasons for the departure. Id. Although MCL 552.605(3) permits the court to enter “a child support order that is agreed to by the parties and that deviates from the child support formula,” that subsection further provides that such an order is permissible only “if the requirements of subsection (2) are met.” Thus, the trial court must still comply with MCL 552.605(2) and ensure that a child support order is just, even if the parties agree to a support order that deviates from the guidelines. A trial court has discretion to modify a child support order “as the circumstances of the parents and the benefit of the children require,” MCL 552.17(1), but a court has a statutory duty to follow the criteria set forth in the MCSFM when modifying a child support award. Burba v Burba (After Remand), 461 Mich 637, 643-645, 647; 610 NW2d 873 (2000). Here, the consent judgment also violates the child support statutes, to the extent that it effectively nullifies plaintiffs child support obligation, contrary to the child support formula, without complying with MCL 552.605(2).
For the foregoing reasons, we conclude that the trial court’s orders of April 28, 2004, May 19, 2004, and October 12, 2005, violate the child support statutes, because they permit plaintiff to effectively avoid his child support obligation, as prescribed by the child support formula, without the requisite findings that application of the child support formula would be unjust or inappropriate.
in
Given that we have concluded that the reciprocal alimony provision is void, we now turn to the appropriate scope of relief in light of the unusual procedural history of this case.
Contracts that violate public policy may not be enforced. Rory, supra at 491 (unambiguous written contracts are enforced as written, unless a provision violates law or public policy). Accordingly, the trial court’s April 28, 2004, order was erroneous because it enforced the reciprocal alimony provision. Further, because the reciprocal alimony provision in the consent judgment is void, the trial court also erred by denying defendant’s motion for relief from the consent judgment on May 19, 2004. Thus, even though defendant did not appeal either of these prior orders, these orders have no force or effect because they are unenforceable. Id. Under these circumstances, where the trial court failed to set aside a void provision, we conclude that defendant is entitled to relief extending back to April 28, 2004, the date the void order was entered. Accordingly, we reverse the October 12, 2005, order of the trial court, insofar as it recognized and enforced the invalid reciprocal alimony provision. Further, we vacate the April 28, 2004, and May 19, 2004, orders that also recognized and enforced the invalid reciprocal alimony provision, and remand the case to the trial court for a determination of plaintiffs appropriate child support obligation, retroactive to April 28, 2004.
rv
In light of our decision, it is unnecessary to address defendant’s remaining issues on appeal.
Reversed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
The trial court also denied defendant’s motion for relief from the consent judgment for procedural reasons, because defendant did not cite the court rule under which she was requesting relief. When defendant indicated at the motion hearing that she was requesting relief under MCR 2.612(C), the trial court stated that this was not a case that fell within that rule. We disagree. MCR 2.612(C)(1)(d) and (f) provide that a court may grant relief from a judgment where the judgment is void or for any other reason justifying relief from the operation of the judgment. As explained previously, the reciprocal alimony provision is unenforceable. Because an unenforceable provision is void and is also a reason justifying relief from the operation of a judgment, relief was authorized under MCR 2.612(C)(1)(d) and (f). Furthermore, a motion under subrules d and f need only be made within a reasonable time. Although the motion here was brought approximately five years after the consent judgment was entered, it was not until February 2004 that the friend of the court notified the parties that plaintiffs prepaid child support had been exhausted. Plaintiffs motion to enforce the reciprocal alimony provision was granted shortly thereafter on April 28, 2004, and defendant filed her motion for relief from the consent judgment on May 12, 2004. Defendant’s motion was filed within a reasonable time under the circumstances.
We disagree with defendant’s argument that the trial court was obligated to refer the dispute in the instant case back to the original arbitrator. The parties’ arbitration agreement authorized the arbitrator to decide disputes relating to language to be incorporated into a judgment. It did not authorize the arbitrator to resolve disputes relating to the interpretation of the judgment once a judgment had been entered. | [
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O’Connell, J.
Respondent Secretary of State appeals by leave granted the trial court order setting aside as arbitrary and capricious respondent’s declaratory ruling interpreting § 57 of the Michigan Campaign Finance Act (MCFA), MCL 169.201 et seq. We reverse.
I. BASIC FACTS AND PROCEDURAL HISTORY
A. THE PARTIES
1. THE SECRETARY OF STATE
The respondent-appellant in this matter is the Secretary of State (the Secretary). The position of Secretary of State is an elective office under the Michigan Constitution. See Const 1963, art 5, § 21. The Secretary is the single executive heading the Department of State (the Department). See Const 1963, art 5, § 3. The Department of State is one of the principal departments in the executive branch of state government. See MCL 16.104(1). The Secretary has certain duties and responsibilities, see MCL 11.4 et seq., including the administration of the MCFA, MCL 169.215. Under the MCFA, MCL 169.215(l)(e), and under the Administrative Procedures Act, MCL 24.263, the Secretary of State may issue “a declaratory ruling as to the applicability to an actual state of facts of a statute.”
2. THE MEA
The petitioner-appellee in this matter is the Michigan Education Association (MEA). The MEA is a voluntary, incorporated labor organization that in August 2006 represented some 136,000 members employed by public schools, colleges, and universities throughout Michigan. The MEA’s MEA-PAC is a separate segregated fund under § 55 of the MCFA, MCL 169.255. According to the MEA: MEA-PAC is funded in part by MEA member payroll deductions; the MEA or its affiliates have entered into collective bargaining agreements with various public school districts throughout the state; some of those collective bargaining agreements, including the agreement between the Kalamazoo County Education Association/Gull Lake Education Association (presumably affiliates of the MEA) and the Gull Lake Public Schools, include a requirement that the school district employer administer a payroll deduction plan for contributions to MEA-PAC; the Gull Lake collective bargaining agreement also requires the Gull Lake Public Schools to make other payroll deductions, such as the payment of MEA dues and service fees; and in 2006, it proposed that it pay the Gull Lake Public Schools, in advance, for all anticipated costs of Gull Lake Public Schools attributable to administering payroll deductions to MEA-PAC or any other separate segregated fund affiliated with the MEA. The MEA contends that under this proposal, Gull Lake Public Schools would not incur any costs or expenses in administering the requested deductions, because the Gull Lake Public Schools would be reimbursed, in advance, for such costs and expenses.
3. THE AMICI
Various entities and persons have filed helpful briefs amicus curiae in this matter. They are the Mackinac Center for Public Policy, the Michigan State AFL-CIO and Change to Win, the Michigan Chamber of Commerce, and Senate Majority Leader Michael D. Bishop, Senate Majority Floor Leader Alan Cropsey, and Senator Michelle McManus, Chairwoman of the Senate Campaign and Election Oversight Committee.
B. THE MEA’S REQUEST FOR DECLARATORY RULING
On August 22, 2006, the MEA filed a request for a declaratory ruling by the Secretary. The MEA detailed the facts concerning the Gull Lake Public Schools summarized above and asserted that the administration of the payroll deductions by the school district did not “constitute an ‘expenditure’ under the MCFA” and did not constitute a violation of § 57 of the MCFA, MCL 169.257. The MEA then requested a declaratory ruling on three questions:
1. May the Gull Lake Public Schools continue to make and transmit to MEA-PAC the payroll deductions requested by MEA members through a properly completed, voluntary consent form?
2. May the Gull Lake Public Schools, consistent with the provisions of the MCFA, administer the payroll deductions to MEA-PAC if either the MEA or MEA-PAC pays the school district, in advance, for any costs associated with administering those payroll deductions?
3. What costs should be considered by the Gull Lake Public Schools in determining the costs attributable to administering the payroll deductions that are to be transmitted to the PAC [political action committee]?
C. THE SECRETARY’S DECLARATORY RULING
On November 20, 2006, the Secretary issued her declaratory ruling in response to the MEA’s request. Regarding the MEA’s first question, the Secretary noted that the Department of State and the Attorney General had both concluded that a public body is prohibited from collecting and remitting contributions to a “committee” through its administration of a payroll deduction plan. The Secretary noted that § 55 of the MCFA allowed the named private entities to make “expenditures” for the establishment and administration and solicitation of contributions to a separate segregated fund to be used for political purposes. However, citing § 55(1) and § 57, the Secretary went on to note that “no corresponding provision authorizes a public body to do so.” The Secretary stated that “[t]he Department is constrained to conclude that the school district is prohibited from expending government resources for a payroll deduction plan that deducts wages from its employees on behalf of MEA-PAC.”
Regarding the MEA’s second question, the Secretary stated that the Department was mindful of the Attorney General’s recent conclusion that
a violation [of § 57] could not be avoided by requiring the union to pay the anticipated costs before they are incurred. The language of MCL 169.257(1) unqualifiedly prohibits the use of public resources for the described purposes, making no exception for compensated uses. [OAG, 2005-2006, No 7187, p 81 (February 16, 2006).]
The Secretary stated that this opinion was consistent with the Department’s previous position, citing several previous interpretative statements, and that the Department saw no reason to depart from this rationale. The Secretary also concluded that it was unnecessary to address the MEA’s third question, given her response to the first and second questions.
D. THE TRIAL COURT’S DECISION
The MEA filed in the Ingham Circuit Court a petition for review challenging the Secretary’s declaratory ruling. On September 4, 2007, the trial court issued its opinion setting aside the Secretary’s declaratory ruling. The trial court summarized the Secretary’s declaratory ruling and stated: “This means that unions cannot take voluntary payroll deductions from their member employees and contribute those funds to PACs established by the unions, if the employees in the union work for a public body.”
After stating the standard of review contained in the Administrative Procedures Act, MCL 24.306(1), the provisions of § 57 of the MCFA, and the positions of the parties, the trial court determined that the Secretary’s declaratory ruling was “arbitrary, capricious, and an abuse of discretion.” The trial court concluded that under the plain language of § 57, the administration of payroll deductions to a union PAC constitutes an “expenditure” under the MCFA. The trial court then stated:
However, where the costs of administration are reimbursed, no transfer of money to the union PAC occurs, and therefore an “expenditure” has not been made within the meaning of the MCFA. Thus, a public body may administer payroll deductions so long as all costs of making deductions are reimbursed by the PAC. § 57 does not explicitly prohibit a public body from administering the payroll deduction requests of its employees.
The trial court also disagreed with the Secretary’s assertion that her declaratory ruling was consistent with past rulings and statements. While the trial court agreed with the Secretary that she is free to make prospective changes in the course and direction of the declaratory rulings, it stated that such changes “must not be arbitrary, capricious, or in violation of any other law.” The trial court concluded that the Secretary made such an arbitrary change when she issued her declaratory ruling. The trial court then held that public bodies, such as the Gull Lake Public School system, may “administer payroll deductions requested by their employees, provided that all expenses of making the deductions are borne by the PAC or its sponsoring labor organization and are paid in advance.”
E. THE SECRETARY’S APPEAL
On September 27, 2007, the Secretary filed an application for leave to appeal the trial court’s decision, and on December 19, 2007, a panel of this Court granted that application. In her brief on appeal, the Secretary outlined the question involved as follows:
The Secretary of State issued a declaratory ruling that § 57 of the Michigan Campaign Finance Act prohibits a school district, as a public body, from administering a payroll deduction plan on behalf of a union’s political action committee and that a violation could not be remedied by a union’s reimbursement of the costs associated with administering such a plan. On appeal, the circuit court found that the plain language of § 57 prohibited the administration of payroll deductions by a union political action committee, but that where the costs of administration are reimbursed in advance, a violation does not occur. Was the circuit court correct in finding that the declaratory ruling by the Secretary of State was arbitrary, capricious, and an abuse of discretion?
II. STANDARD OF REVIEW
We review de novo questions of statutory interpretation. Faircloth v Family Independence Agency, 232 Mich App 391, 406; 591 NW2d 314 (1998).
[A]gency interpretations are entitled to respectful consideration, but they are not binding on courts and cannot conflict with the plain meaning of the statute. While the agency’s interpretation may be helpful in ascertaining the legislative intent, courts may not abdicate to administrative agencies the constitutional responsibility to construe statutes. Giving uncritical deference to an administrative agency would be such an improper abdication of duty. [In re Complaint of Rovas Against SBC Michigan, 482 Mich 90, 117-118; 754 NW2d 259 (2008).]
III. STATUTORY INTERPRETATION
MCL 169.257(1) provides, in pertinent part:
A public body[ ] or an individual acting for a public body shall not use or authorize the use of funds, personnel, office space, computer hardware or software, property, stationery, postage, vehicles, equipment, supplies, or other public resources to make a contribution or expenditure or provide volunteer personal services that are excluded from the definition of contribution under section 4(3)(a).
The MCFA defines “expenditure” as “a payment, donation, loan, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate, or the qualification, passage, or defeat of a ballot question.” MCL 169.206(1). “[W]hen a statute specifically defines a given term, that definition alone controls.” Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). The Secretary previously issued an interpretive statement indicating that “the department interprets the term ‘expenditure’ to include the costs associated with collecting and delivering contributions to a committee” and that “[a] payroll deduction system is one method of collecting and delivering contributions.” Interpretative Statement to Mr. Robert LaBrant (November 14, 2005).
None of the parties appears to question this interpretation. Rather, as stated above, the sole issue before us is whether, under the MCFA, advance reimbursement for the costs of a payroll deduction system prevents what is otherwise an illegal expenditure from ever becoming an “expenditure.” We conclude that it does not. We find nothing in the plain language of the MCFA that indicates reimbursement negates something that otherwise constitutes an expenditure. This Court presumes that the Legislature intended the meaning clearly expressed in unambiguous statutory language, and no further construction is required or allowed. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). We note that although MCL 169.204(3) (c) provides that “[a]n offer or tender of a contribution, if expressly and unconditionally rejected, returned, or refunded in whole or in part within 30 business days after receipt” is not a contribution, MCL 169.206(2)(e) provides that only rejection and return prevent an expenditure and does not permit “refund.” “[N]othing may be read into a statute that is not within the manifest intent of the Legislature as derived from the act itself.” Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999). We may not assume that the omission of the term “refund” from MCL 169.206(2) (e) was inadvertent. South Haven v Van Buren Co Bd of Comm’rs, 478 Mich 518, 530; 734 NW2d 533 (2007).
We also conclude that reimbursement, advance or otherwise, does not prevent an otherwise illegal expenditure from ever becoming an expenditure because “there is no transfer of value.” Contrary to the trial court’s reasoning, a transfer of value has occurred because there is time spent by employees that monetary reimbursement cannot return. For example, it takes employees to distribute voluntary payroll deduction forms, receive the signed forms, make certain the forms conform to legal requirements, enter the information into the payroll system, and update the information yearly. Although monetary reimbursement can compensate the school district for the salary paid for the time spent by the employees performing those functions, the time spent on non-school district business is irretrievably lost and cannot be recovered. This work constitutes a transfer of value for which monetary reimbursement is insufficient. Accordingly, reimbursement does not prevent an expenditure from occurring. The trial court erred by concluding that reimbursement prevents an expenditure from occurring, and its declaratory ruling was arbitrary and capricious.
IV ADDITIONAL ISSUES
The dissent raises two issues that were not set forth in the statement of questions presented on appeal, nor were they raised by any of the nine parties or amici in their briefs or at oral argument. We are not obligated to consider issues not properly raised and preserved or those that were first raised on appeal, People v Stanaway, 446 Mich 643, 694; 521 NW2d 557 (1994); Booth Newspapers, Inc v University of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993), and we generally do not consider any issues not set forth in the statement of questions presented, Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000). We, therefore, decline to address them because they are not properly before us. Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). Although the dissent’s legal argument may “have substantive merit, it can be of no avail [because each of the parties and amici] failed to raise the issue in a timely fashion.” Forton v Laszar, 463 Mich 969, 970 (2001) (CORRIGAN, C.J., concurring).
If the parties wish to make arguments to resolve these “other issues,” they are free to file a separate lawsuit. However, this Court should not sua sponte create issues on appeal and then remand to the trial court for a determination of those issues, or request additional briefing to dispose of the issues for the first time on appeal.
We reverse the circuit court’s order. We do not retain jurisdiction.
Wilder, EJ., concurred.
“A declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case.” MCL 24.263.
See also Const 1963, art 6, § 28.
There is no dispute that a school district is a public body and, therefore, governed by MCL 169.257.
In fact, the trial court and the appellate briefs concede that an expenditure has occurred absent the asserted magical effects of prior reimbursement.
The dissent’s description of the MCFA as a “self-contained looking-glass” full of circus type mirrors may be accurate. However, in light of the MCFA prohibitions, we believe that the dissent “has traveled one mirror too far.” Unlike § 55 for corporations, § 57 does not authorize a public body to make expenditures to establish, administer, or solicit “contributions” for a management PAC, nor is there authorization to administer a payroll deduction plan for “contributions” to a separate segregated fund. Absent such authorization, school districts are prohibited from engaging in the political process. In our opinion, the prohibition on expenditures and contributions, coupled with the absence of express permission for a payroll deduction plan, should end the discussion.
We concede that the Legislature may have the authority to allow public bodies to engage in some limited form of partisan politics. However, until the Legislature explicitly makes such a pronouncement, courts should be reluctant to allow public bodies to engage in any form of politics. Sincere advocates can read self-contained looking-glass legislation and reach different results, but it is beyond question that the intent of this legislation was to prevent taxpayer funded public bodies from engaging in partisan politics. In our view, the methodological manner in which the dissent interprets the MCFA turns the statute upside down and inside out, resulting in permission for that which the statute was intended to prevent.
If we were to address the dissent’s issues, we would still reverse. The MCFA treats public entities and private entities differently. Compare MCL 169.254 with 169.257. Given this differential treatment, we would conclude that the allocated costs of collecting and delivering payroll deductions by members of the MEA affiliate to the MEA-PAC are both an expenditure and a contribution to the MEA-PAC by the Gull Lake Public Schools. See OAG, 2005-2006, No 7187, p 81 (February 16, 2006) (concluding that “[a] public body’s use of its resources to administer the payroll deduction plan would ‘cause’ the contribution to ‘happen,’ and thus violate section 57”).
Under our system of government, public bodies should not participate in the political process. To effectuate this, our Legislature prohibited them from making “expenditures” and “contributions.” MCL 169.257(1). Over time, the prohibition became more detailed, and now includes “the use or authorization of] the use of funds, personnel, office space, computer hardware or software, property, stationery, postage, vehicles, equipment, supplies, or other public resources to make a contribution or expenditure ____” Id. Numerous Attorney General opinions have made this proposition clear. See, e.g., OAG, 1993-1994, No 6763, p 45 (August 4, 1993) (“School districts may not permit their offices and phone equipment to be used in a restrictive manner for advocacy of one side of a ballot issue.... School districts may not endorse a particular candidate or ballot proposal.”); OAG, 1965-1966, No 4291, p 1 (January 4,1965) (school district not allowed to spend funds to advocate a favorable vote on a tax and bond ballot proposal). Given the consistency with which the MCFA has been interpreted to prohibit public bodies from spending public funds or otherwise utilizing public resources paid for by ah taxpayers to advocate for a particular political position or candidate, it is absolutely illogical, inconsistent, and contrary to the very purpose of MCL 169.257 to conclude that it is permissible for a school district (a public body) to administer payroll deductions sent to MEA-PAC (a group whose very purpose is to advocate for various political positions and candidates). | [
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MARKEY, P.J.
Defendants appeal by right a judgment entered after a jury trial awarding plaintiffs $86,813 in damages and costs. Flaintiffs claim that defendants failed to disclose a termite infestation in the residence plaintiffs purchased from defendants. Before trial, the trial court granted plaintiffs’ motion to dismiss all theories of liability except innocent misrepresentation. This claim was based on defendants “no” answer on their seller’s disclosure statement (SDS), MCL 565.957, in response to SDS item: “History of infestation, if any: (termites, carpenter ants, etc.).” We agree with defendants’ argument that innocent misrepresentation is not a viable theory of liability under the Seller Disclosure Act (SDA), MCL 565.951 et seq. Consequently, we reverse and remand for entry of judgment for defendants.
Flaintiffs’ complaint originally alleged breach of contract and three fraud claims: fraudulent misrepresentation or common-law fraud, silent fraud, and innocent misrepresentation. All plaintiffs’ claims were based on defendants’ response to the query regarding infestation on the SDS. After discovery, defendants moved for summary disposition under MCR 2.116(C)(8) and (10), arguing, among other things, that a claim for innocent misrepresentation cannot exist under the SDA. The trial court denied this motion.
Less than one week before trial, plaintiffs moved to voluntarily dismiss all claims except innocent misrepresentation and to amend their complaint to allege that defendants misrepresented whether structural modifications had been made without necessary permits. At the hearing on plaintiffs’ motions and other pretrial matters, defendants again asserted their position that innocent misrepresentation was not a cognizable theory of liability under the SDA. The trial court denied plaintiffs’ motion to amend the complaint, ruling that the evidence concerning permits would be admitted on credibility issues. The court, however, granted plaintiffs’ motion to dismiss all claims except innocent misrepresentation. With respect to defendants’ argument that a claim for innocent misrepresentation was not viable under the SDA, the court reserved its ruling on the issue until the close of plaintiffs’ proofs and until after defendants had moved for a directed verdict.
In essence, defendants argued below that liability for an error, inaccuracy, or omission in the SDS exists only if defendants had actual knowledge of the error, inaccuracy, or omission. MCL 565.955(1). Defendants relied on several unpublished opinions of this Court, including Pena v Ellis, unpublished opinion per curiam of the Court of Appeals, issued April 18, 2006 (Docket No. 257840); Huhtasaari v Stockemer, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2005 (Docket No. 256926); Timmons v DeVoll, unpublished opinion per curiam of the Court of Appeals, issued February 24, 2004 (Docket No. 241507); and Paule v Iwaniw, unpublished opinion per curiam of the Court of Appeals, issued October 5, 2001 (Docket No. 225590). The trial court rejected defendants’ argument on the basis of this Court’s decision in Bergen v Baker, 264 Mich App 376; 691 NW2d 770 (2004), which held that in adopting the SDA, “the Legislature intended to allow for seller liability in a civil action alleging fraud or violation of the act brought by a purchaser on the basis of misrepresentations or omissions in a disclosure statement, but with some limitations.” Id. at 385. The trial court reasoned that Bergen prevails over this Court’s unpublished opinions and held that actions for innocent misrepresentation may be brought for alleged errors, inaccuracies, or omissions in an SDS, subject to certain limitations. In this regard, Bergen held liability is precluded “for errors, inaccuracies, or omissions in a seller disclosure statement that existed when the statement was delivered where the seller lacked personal knowledge, and would not have had personal knowledge by the exercise of ordinary care . ...” Id.
We review de novo a trial court’s decision to grant or deny summary disposition. Id. at 381. A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the basis of the pleadings alone. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). The motion should be granted if the pleadings fail to state a claim upon which relief can be granted and no factual development could possibly justify recovery. Id.
Similarly, the Court reviews de novo the trial court’s decision on a motion for a directed verdict. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). A directed verdict is appropriate only when no factual question exists upon which reasonable minds could differ. Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427-428; 711 NW2d 421 (2006).
This case also involves statutory construction, a question of law we review de novo. Niles Twp v Berrien Co Bd of Comm’rs, 261 Mich App 308, 312; 683 NW2d 148 (2004). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Id. at 313. Our Supreme Court provided guiding principles for performing this task in Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002):
An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is that courts are to effect the intent of the Legislature. To do so, we begin with an examination of the language of the statute. If the statute’s language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. [Citations omitted.]
The common-law rule with respect to real estate transactions is caveat emptor, Christy v Prestige Builders, Inc, 415 Mich 684, 695 n 7; 329 NW2d 748 (1982). Thus, at common law “a land vendor who surrenders title, possession, and control of property shifts all responsibility for the land’s condition to the purchaser.” Id. at 694. In Christy, the Court recognized two exceptions to the general rule of caveat emptor regarding negligence actions arising from real estate sales. Id. First, the seller has a duty to disclose to the buyer any concealed condition known to the seller that involves an unreasonable danger. Second, after the sale, the seller is liable to those outside the land for a dangerous condition on the land until the buyer discovers or should have discovered it. Id.; see also M & D, Inc v McConkey, 231 Mich App 22, 34; 585 NW2d 33 (1998). Outside the context of a negligence action for personal injury, Michigan recognizes several theories of fraud as exceptions to the common-law rule of caveat emptor in real estate transactions: (1) traditional common-law fraud, (2) innocent misrepresentation, and (3) silent fraud. Id. at 26-27. In this case, in addition to a claim of breach of contract, plaintiffs originally asserted all three theories of fraud.
To prove a claim of fraudulent misrepresentation, or common-law fraud, a plaintiff must establish that: (1) the defendant made a material representation; (2) the representation was false; (3) when the representation was made, the defendant knew that it was false, or made it recklessly, without knowledge of its truth, and as a positive assertion; (4) the defendant made it with the intention that the plaintiff should act upon it; (5) the plaintiff acted in reliance upon the representation; and (6) the plaintiff thereby suffered injury. See id. at 27; see also Mable Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich App 485, 499-500; 686 NW2d 770 (2004), quoting Hord v Environmental Research Institute of Michigan (After Remand), 463 Mich 399, 404; 617 NW2d 543 (2000).
Silent fraud or fraudulent concealment has also long been recognized in Michigan. See Lorenzo v Noel, 206 Mich App 682, 684; 522 NW2d 724 (1994). “ ‘ “A fraud arising from the suppression of the truth is as prejudicial as that which springs from the assertion of a falsehood, and courts have not hesitated to sustain recoveries where the truth has been suppressed with the intent to defraud.” ’ ” Id., quoting Williams v Benson, 3 Mich App 9, 18-19; 141 NW2d 650 (1966), quoting Tompkins v Hollister, 60 Mich 470, 483; 27 NW 651 (1886). But for the suppression of information to constitute silent fraud there must exist a legal or equitable duty of disclosure. United States Fidelity & Guaranty Co v Black, 412 Mich 99, 125; 313 NW2d 77 (1981). Further, establishing silent fraud requires more than proving that the seller was aware of and failed to disclose a hidden defect. McConkey, supra at 30-32. Instead, to prove a claim of silent fraud, a plaintiff must show some type of representation by words or actions that was false or misleading and was intended to deceive. Id. at 31-32, 36.
As noted already, plaintiffs chose to voluntarily dismiss their claims of fraudulent misrepresentation, silent fraud, and breach of contract. Plaintiffs chose to rely solely on their claim of innocent misrepresentation, a doctrine that also has long been recognized in Michigan. United States Fidelity & Guaranty Co, supra at 115. “A claim of innocent misrepresentation is shown where a party detrimentally relies on a false representation in such a manner that the injury inures to the benefit of the party making the misrepresentation.” Forge v Smith, 458 Mich 198, 211-212; 580 NW2d 876 (1998). It is unnecessary to prove that the party making the representation had knowledge that it was false. Id.; United States Fidelity & Guaranty Co, supra at 115. But for liability under a theory of innocent misrepresentation to arise there must be privity of contract between the party making the representation and the party claiming to have detrimentally relied on it. Forge, supra at 212; McConkey, supra at 28.
Innocent misrepresentation is quite different from fraudulent misrepresentation and silent fraud. In a common-law fraud action, the plaintiff must establish that the defendant knowingly or recklessly misrepresented a material fact with the intent that the other party rely on it. McConkey, supra at 27; see also M Civ JI 128.01. Likewise, for silent fraud, the plaintiff must prove that the defendant knew of a material fact but concealed or suppressed the truth through false or misleading statements or actions and with the intent to deceive. McConkey, supra at 28-33; see also M Civ JI 128.02.
In contrast to fraudulent misrepresentation and silent fraud, the essence of an innocent misrepresentation claim is that the plaintiff need not prove that the defendant knew or should have known that the representation was false. United States Fidelity & Guaranty Co, supra at 116-117. Likewise, contrary to fraudulent misrepresentation and silent fraud, a plaintiff asserting an innocent misrepresentation claim need not prove that the defendant intended to deceive the plaintiff into relying on the false or misleading representation. Id. at 117-118; McConkey, supra at 27-28. Indeed, under the theory of innocent misrepresentation, false statements the claimant relied on are actionable “ ‘irrespective of whether the person making them acted in good faith in making them ....’” United States Fidelity & Guaranty Co, supra at 116, quoting 37 Am Jur 2d, Fraud and Deceit, § 195, p 257.
It is against this background of the common law that we examine whether a claim of innocent misrepresentation is viable within the context of a response on a seller’s disclosure statement required by the SDA. Contrary to the trial court’s conclusion, this Court did not decide this issue in Bergen, supra. In that case, the plaintiffs had purchased a home from the defendants and subsequently discovered a significant leak in the home’s roof. Bergen, supra at 377. The defendants’ SDS disclosed that the roof had leaked in the past but asserted that it had been completely repaired. Id. at 378. The plaintiffs sued under theories of “fraud, negligent misrepresentation, and breach of contract arising out of defendants’ alleged failure to disclose the leaking roof.” Id. at 377. Finding no genuine issue of material fact existed regarding reliance, the trial court granted summary disposition to the defendants on the plaintiffs’ claims of fraud and negligent misrepresentation. Id. at 379-380. This Court reversed, but in doing so only discussed theories of liability based on fraudulent misrepresentation and silent fraud. Id. at 382. This Court held that the trial court erred in ruling that no material issue of fact remained for trial. Id. at 381, 389. In particular, the Bergen Court held that the plaintiffs had produced sufficient evidence to permit “a reasonable fact-finder [to] infer that [the] defendants knew about the leak yet proceeded in bad faith by impermissibly failing to disclose the condition.” Id. at 388. Thus, the plaintiffs in Bergen produced evidence of material facts to support claims of fraud or silent fraud but not innocent misrepresentation.
This Court, however, in several unpublished opinions has held that a claim of innocent misrepresentation based on disclosures required in an SDS is incompatible with the SDA. See Paule, supra at 4 (“[W]e hold that MCL 565.955(1) eliminated any claim based on innocent misrepresentation in the context of a claim premised on a misrepresentation contained in a disclosure statement, because personal knowledge or ordinary care is required by the statute.”); Timmons, supra at 4 (“With respect to [the] plaintiffs’ claim for innocent misrepresentation, . . . such a claim cannot exist under the SDA, because the act itself eliminates any claims based on innocent misrepresentation in reference to alleged misrepresentations within the SDS.”); and Pena, supra at 3 n 1 (“[T]his Court expressly recognized that [MCL 565.955(1)] limits liability for error and omissions not within the seller’s personal knowledge, Bergen, supra at 385, precluding ‘innocent misrepresentation’ claims under the SDA . . . .”). See also Lane v Dinnocenzo, unpublished opinion per curiam of the Court of Appeals, issued August 17, 2006 (Docket No. 268370) at 2, holding with respect to the SDA that “a seller is not liable for any error, inaccuracy, or omission in the disclosure form if the error, inaccuracy, or omission was not within the seller’s personal knowledge. MCL 565.957. A seller is liable for common law fraud or silent fraud if a seller makes misrepresentations in the disclosure form.”
Unpublished opinions are not precedentially binding, and we need not consider them. MCR 7.215(C)(1). Several on this issue, however, are persuasive because they rely on the plain language of the statute. The SDA modifies the common law and in certain real estate transactions requires the transferor to disclose certain information in a specified format. The act applies to “the transfer of any interest in real estate consisting of not less than 1 or more than 4 residential dwelling units .. . .” MCL 565.952. The SDA excepts certain transfers, such as those made pursuant to court order, familial transfers, transfers related to debt collection, mortgage foreclosure, bankruptcy proceedings, transfers by nonoccupant fiduciaries, and other similar transfers, none of which applies here. MCL 565.953. The SDA requires that the transferor of any real property covered by the act “shall deliver to the transferor’s agent or to the prospective transferee or the transferee’s agent the written statement required by this act.” MCL 565.954(1). The form and substance of the written statement required by the act is set forth in MCL 565.957. The transferor must complete the SDS by answering its questions in “good faith,” i.e., with “honesty in fact in the conduct of the transaction.” MCL 565.960.
We find nothing in the plain terms of the SDA that requires a transferor of property covered by the act to exercise ordinary care to discover defects in the property being transferred. While good faith and honesty are required when completing an SDS, “[i]f at the time the disclosures are required to be made, an item of information required to be disclosed under [the SDA] is unknown or unavailable to the transferor, the transferor may comply with this act by advising a prospective purchaser of the fact that the information is unknown.” MCL 565.956. Further, the SDS must be completed with “the best information available and known to the transferor.” Id. (emphasis added). MCL 565.957 also explicitly provides that an SDS contains only information actually known to the transferor and that the SDS is not a warranty. MCL 565.957 states regarding the purpose of the SDS and the instructions for its completion, in pertinent part:
Purpose of Statement: This statement is a disclosure of the condition of the property in compliance with the seller disclosure act. This statement is a disclosure of the condition and information concerning the property, known by the seller. Unless otherwise advised, the seller does not possess any expertise in construction, architecture, engineering, or any other specific area related to the construction or condition of the improvements on the property or the land. Also, unless otherwise advised, the seller has not conducted any inspection of generally inaccessible areas such as the foundation or roof. This statement is not a warranty of any kind by the seller or by any agent representing the seller in this transaction, and is not a substitute for any inspections or warranties the buyer may wish to obtain.
Seller’s Disclosure: The seller discloses the following information with the knowledge that even though this is not a warranty, the seller specifically makes the following representations based on the seller’s knowledge at the signing of this document. Upon receiving this statement from the seller, the seller’s agent is required to provide a copy to the buyer or the agent of the buyer. The seller authorizes its agent(s) to provide a copy of this statement to any prospective buyer in connection with any actual or anticipated sale of property. The following are representations made solely by the seller and are not the representations of the seller’s agent(s), if any. THIS INFORMATION IS A DISCLOSURE ONLY AND IS NOT INTENDED TO BE A PART OF ANY CONTRACT BETWEEN BUYER AND SELLER.
Instructions to the Seller: (1) Answer ALL questions. (2) Report known conditions affecting the property. (3) Attach additional pages with your signature if additional space is required. (4) Complete this form yourself. (5) If some items do not apply to your property, check NOT AVAILABLE. If you do not know the facts, check UNKNOWN. [Emphasis added.]
In sum, the SDA requires a transferor of certain real property to answer all items required by MCL 565.957 honestly, on the basis of information actually known to the transferor at the time the SDS is completed. Id.; MCL 565.956; MCL 565.960. Thus, the SDA creates a duty of disclosure regarding specified items. MCL 565.954(1); MCL 565.957; Bergen, supra at 385. Further, the inclusion of items for disclosure in the SDS “does not limit or abridge any obligation for disclosure created by any other provision of law regarding fraud, misrepresentation, or deceit in transfer transactions.” MCL 565.961. That is, apart from the SDS, the Legislature has not modified the rule of caveat emptor and its common-law exceptions imposing liability for fraud. What the Legislature has done is set forth specific provisions limiting a transferor’s potential liability for any errors, inaccuracies, or omissions regarding disclosures required by the SDA by providing:
(1) The transferor or his or her agent is not liable for any error, inaccuracy, or omission in any information delivered pursuant to this act if the error, inaccuracy, or omission was not within the personal knowledge of the transferor, or was based entirely on information provided by public agencies or provided by other persons specified in subsection (3), and ordinary care was exercised in transmitting the information. It is not a violation of this act if the transferor fails to disclose information that could be obtained only through inspection or observation of inaccessible portions of real estate or could be discovered only by a person with expertise in a science or trade beyond the knowledge of the transferor.
(2) The delivery of any information required by this act to be disclosed to a prospective transferee by a public agency or other person specified in subsection (3) shall be considered to comply with the requirements of this act and relieves the transferor of any further duty under this act with respect to that item of information, unless the transferor has knowledge of a known defect or condition that contradicts the information provided by the public agency or the person specified in subsection (3).
(3) The delivery of a report or opinion prepared by a licensed professional engineer, professional surveyor, geologist, structural pest control operator, contractor, or other expert, dealing with matters within the scope of the professional’s license or expertise, is sufficient compliance for application of the exemption provided by subsection (1) if the information is provided upon the request of the prospective transferee, unless the transferor has knowledge of a known defect or condition that contradicts the information contained in the report or opinion. In responding to a request by a prospective transferee, an expert may indicate, in writing, an understanding that the information provided will be used in fulfilling the requirements of [MCL 565.957] and, if so, shall indicate the required disclosures, or parts of disclosures, to which the information being furnished applies. In furnishing the statement, the expert is not responsible for any items of information other than those expressly set forth in the statement. [MCL 565.955 (emphasis added).]
We agree with the Bergen Court that “it is evident that the Legislature intended to allow for seller liability in a civil action alleging fraud.. . brought by a purchaser on the basis of misrepresentations or omissions in a disclosure statement, but with some limitations.” Bergen, supra at 385. The first and foremost limitation on a transferor’s liability is found in the first half of the first sentence of MCL 565.955(1). “The transferor or his or her agent is not liable for any error, inaccuracy, or omission in any information delivered pursuant to this act if the error, inaccuracy, or omission was not within the personal knowledge of the transferor . ...” Id. As stated by this Court in Bergen, supra at 385: “Liability is precluded for errors, inaccuracies, or omissions in a seller disclosure statement that existed when the statement was delivered where the seller lacked personal knowledge” of the error, inaccuracy, or omission.
The second half of the first sentence of subsection 1 of MCL 565.955, read together with subsections 2 and 3, provide a second limitation on a transferor’s liability. Specifically, a transferor may not be found liable for errors, inaccuracies, or omissions in an item disclosed in a SDS when the transferor’s answer is “based entirely on information provided by public agencies or provided by other persons specified in subsection (3), and ordinary care was exercised in transmitting the information.” MCL 565.955(1). Persons specified in subsection 3 include “licensed professional engineer, professional surveyor, geologist, structural pest control operator, contractor, or other expert, dealing with matters within the scope of the professional’s license or expertise ... MCL 565.955(3). Consequently, when the transferor satisfies the SDA’s duty of disclosure regarding an SDS item by basing disclosure entirely on information provided by a public agency or qualified expert, the transferor is not liable for any error, inaccuracy, or omission in the provided information when it is transmitted with ordinary care, unless the transferor has knowledge of a known defect or condition that contradicts the information. In other words, when the transferor has knowledge of errors, inaccuracies, or omissions with respect to information from a public agency or an expert’s report or opinion, providing such information, report, or opinion will not satisfy the SDA’s duty of disclosure, MCL 565.955(2), nor will the transferor be exempt from potential common-law liability, MCL 565.955(1) and (3).
In sum, the SDA only requires a transferor to honestly disclose information known to the transferor at the time the SDS is completed. MCL 565.956; MCL 565.957. Further, a transferor may not be held liable for any errors, inaccuracies, or omissions in the SDS unless they were within the transferor’s personal knowledge. MCL 565.955(1). The SDA expressly states that the transferor “is not liable for any error, inaccuracy, or omission in any information delivered pursuant to this act if the error, inaccuracy, or omission was not within the personal knowledge of the transferor” and ordinary care was used in transmitting the information. Id. (emphasis added). But the act also states that “[t]he specification of items for disclosure in this act does not limit or abridge any obligation for disclosure created by any other provision of law regarding fraud, misrepresentation, or deceit in transfer transactions.” MCL 565.961. Considered together, these two sections mean that where an item is specified for disclosure on the SDS, a transferor may be liable for fraud or silent fraud if the elements of those causes of action are proved, including that the transferor possessed personal knowledge about the item but failed to exercise “good faith” by disclosing that knowledge. MCL 565.960; Bergen, supra. Correspondingly, a transferor cannot be found liable for an innocent misrepresentation regarding a disclosure required by the act because an innocent misrepresentation claim would allow liability for erroneous information even if the transferor lacked personal knowledge that the information was false and was acting in good faith. United States Fidelity & Guaranty Co, supra at 117.
We hold that innocent misrepresentation is incompatible with the exemption from liability afforded by MCL 565.955(1) with respect to a disclosure made on an SDS. Because liability for an innocent misrepresentation may be imposed without regard to whether the party making the representation knew it was false or. was acting in good faith and because MCL 565.955(1) precludes imposition of liability on transferors who lack personal knowledge with respect to errors, inaccuracies, or omissions in an SDS, there is no liability for a disclosure made on an SDS under a theory of innocent misrepresentation. By permitting plaintiffs’ innocent misrepresentation claim, the trial court failed to recognize the statutory exemption from liability when transferors lack personal knowledge of errors in the SDS. Consequently, plaintiffs’ pleadings regarding innocent misrepresentation fail to state a claim upon which relief can be granted, and no factual development could possibly justify recovery. Corley, supra at 277. The trial court erred in not granting defendants’ motion for summary disposition on that claim.
We reverse and remand for entry of judgment for defendants. We do not retain jurisdiction.
Wilder, J., concurred.
Latin for “let the buyer beware.” Black’s Law Dictionary (7th ed). “A doctrine holding that purchasers buy at their own risk.” Id.
Plaintiffs did not assert negligent misrepresentation in this action, although in their original fraud count, plaintiffs asserted that defendants “knew, or should have known” the representations were false. In a negligent misrepresentation action, the plaintiff must prove that “a party justifiably relied to his detriment on information provided without reasonable care by one who owed the relying party a duty of care.” Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 33; 436 NW2d 70 (1989). Michigan recognized negligent misrepresentation as a way of imposing third-party liability for the negligent performance of a contract. See Williams v Polgar, 391 Mich 6, 18-23; 215 NW2d 149 (1974) (holding that an abstractor could be found liable to third parties for negligent preparation of an abstract when the abstractor could reasonably foresee the third parties relying on the accuracy of the abstract). Although we do not address such a claim because it was not pleaded here, we disagree with the Bergen Court that the SDA imposes a duty on a seller to exercise ordinary care to discover defects in a home being sold. See Bergen, supra at 385. The SDA only imposes a duty on the transferor of real estate covered by the act to honestly disclose items about which the transferor actually knows. See MCL 565.955(1) (“within the personal knowledge of the transferor”); MCL 565.956 (“and known to the transferor”); MCL 565.957 (“known by the seller”); and MCL 565.960 (requiring “ ‘good faith’ meaning] honesty in fact”).
“A city, township, or county may require disclosures in addition to those disclosures required by [MCL 565.957], and may require disclosures on a different disclosure form in connection with transactions subject to [the SDA].” MCL 565.959.
To the extent Bergen implies otherwise, we find the reasoning of Pena, supra at 1-3, persuasive in determining that the SDA does not create a separate cause of action for the violation of its terms but instead affords buyers an opportunity to cancel a purchase agreement before closing or thereafter allows for a common-law action for fraud. Because plaintiffs only assert a claim alleging innocent misrepresentation, we do not decide the issue.
Although not necessary to decide this issue, it appears the Bergen Court read into the phrase in MCL 565.955(1) “and ordinary care was exercised in transmitting the information” a duty on the part of the transferor to use ordinary care to discover defects requiring reporting in the SDS. But the phrase requires ordinary care only in “transmitting the information,” not discovering information. Definitions of “transmit” in Random House Webster’s College Dictionary (1992) include: (1) “to send or forward, as to a recipient or destination; dispatch; convey” and (2) “to communicate, as information, or news.” Thus, even if the phrase “and ordinary care was exercised in transmitting the information” also modi fies the first half of the first sentence of MCL 565.955(1), it requires only that a transferor use ordinary care in communicating his or her actual knowledge. | [
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PER CURIAM.
In Docket No. 277983, plaintiff appeals by right the trial court’s judgment for defendants on a jury verdict of no cause of action. In Docket No. 279595, plaintiff appeals by right the trial court’s postjudgment order taxing costs and denying plaintiffs request to sanction defendants under MCR 2.114. This Court has consolidated the appeals. We affirm in part, reverse in part, and remand for modification of the order taxing costs consistent with this opinion.
I. ALLEGED MISCONDUCT OF DEFENSE COUNSEL
In Docket No. 277983, plaintiff first argues that he was prejudiced by several instances of misconduct by defense counsel and that he is therefore entitled to a new trial. We disagree.
A
The proper standard of review for claims of attorney misconduct in civil cases was discussed by our Supreme Court in Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102-103; 330 NW2d 638 (1982):
When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts need not be allowed to stand simply because a lawyer or judge or both failed to protect the interests of the prejudiced party by timely action.
See also Hilgendorf v St John Hosp & Med Ctr Corp, 245 Mich App 670, 682-683; 630 NW2d 356 (2001), and Badalamenti v William Beaumont Hosp, 237 Mich App 278, 290; 602 NW2d 854 (1999).
B
Plaintiff argues that defense counsel prejudicially and improperly questioned him and another witness regarding his past marijuana use. Relying in part on Wayne Co Bd of Rd Comm’rs v GLS LeasCo, Inc, 394 Mich 126, 136-138; 229 NW2d 797 (1975), plaintiff asserts that “such questioning was irrelevant and prejudicial” and that it evidenced “a deliberate and calculated attempt to prejudice the jury.”
Plaintiff has maintained throughout this case that he sustained a traumatic brain injury as a result of an automobile accident on July 22, 2002, and that this neurological injury has impaired his cognitive abilities and mental acuity. Plaintiff testified at trial that the symptoms of his alleged closed head injury included cognitive deficiencies, confusion, forgetfulness, difficulty in organizing his thoughts and affairs, and a general inability to focus. As evidenced by the deposition testimony of plaintiffs witness, Dr. Hankenson, at least one of plaintiffs physicians apparently believed that the nature and extent of plaintiffs marijuana use was a relevant consideration in diagnosing plaintiffs condition.
It is true that defense counsel was not permitted to prove plaintiffs “general lack of morality” with evidence of past instances of specific conduct such as marijuana use. People v Crabtree, 87 Mich App 722, 726; 276 NW2d 478 (1979). Nor is an attorney generally permitted to prove a person’s bad character with specific instances of past conduct. See MRE 404(b)(1). However, it does not appear that defense counsel’s questions concerning plaintiffs past marijuana use were designed to attack plaintiffs general character or morality. Instead, defense counsel’s questions were designed to determine whether plaintiffs past marijuana use had in any way affected his cognitive abilities and mental acuity independent of the July 2002 automobile accident. Many of the mental and cognitive symptoms attributed by plaintiff to the automobile accident could equally have been attributable, at least in part, to other causal factors such as drug use. Defense counsel’s questioning of plaintiff concerning the nature and extent of his marijuana use tended to aid the jury in determining whether plaintiffs cognitive and mental deficiencies were attributable to the automobile accident or to some other cause. The testimony elicited from plaintiff on this subject did not run afoul of MRE 404(b)(1) because it was not elicited for the purpose of proving plaintiffs bad character. Nor was the testimony irrelevant or unfairly prejudicial. MRE 401; MRE 403. Defense counsel did not act improperly by asking plaintiff about his past marijuana use.
Plaintiff also argues that it was improper for defense counsel to question witness Steve Porterfield on cross-examination concerning plaintiffs past marijuana use. It is clear from the record that defense counsel sought to question Porterfield concerning plaintiffs past marijuana use for the purpose of impeaching plaintiffs credibility on this issue. Plaintiff initially testified that he had smoked marijuana only once at a University of Michigan football tailgate party. Plaintiff then admitted that although he had also smoked marijuana occasionally as a teenager, he no longer used the drug. It is clear that defense counsel’s questioning of Porterfield — who worked for plaintiff during the summers of 1999, 2000, 2001, 2002, and 2003 — was designed to test plaintiffs credibility with respect to the issue of marijuana use. Indeed, Porterfield testified in response to defense counsel’s questions that he had smoked marijuana with plaintiff a “couple times” between 1999 and 2003, thereby undercutting the credibility of plaintiffs earlier testimony.
The problem with defense counsel’s questioning of Porterfield, however, is that it did not satisfy the technical requirements of MRE 608(b)(2). Pursuant to MRE 608(b)(2), “[s]pecific instances of the conduct of a witness” may, “if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness . . . concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.” In light of plaintiffs own testimony that he had used marijuana only once since his teenage years, evidence that Porterfield had smoked marijuana with plaintiff a “couple times” since 1999 would have been probative of plaintiffs truthfulness or untruthfulness. Therefore, defense counsel’s questioning of Porterfield satisfied one of the prongs of MRE 608(b)(2). However, Porter-field had not been called as a character witness and did not testify concerning plaintiffs character for truthfulness or untruthfulness on direct examination. Before specific instances concerning another witness’s character for truthfulness or untruthfulness may be inquired into on cross-examination, the witness subject to cross-examination must already have testified on direct examination regarding the other witness’s character for truthfulness or untruthfulness. MRE 608(b)(2); see also People v Fuzi No 1, 116 Mich App 246, 252; 323 NW2d 354 (1982). Because Porterfield was not called as a character witness and did not testify concerning plaintiffs character for truthfulness or untruthfulness on direct examination, defense counsel was not permitted to elicit from him on cross-examination testimony concerning specific instances of marijuana use for the purpose of impeaching plaintiff. MRE 608(b)(2). The trial court erred by admitting Porterfield’s testimony in this regard.
Nonetheless, defense counsel’s improper questioning of Porterfield concerning specific instances of marijuana use with plaintiff was harmless. In civil cases, evidentiary error is considered harmless unless “declining to grant a new trial, set aside a verdict, or vacate, modify, or otherwise disturb a judgment or order ‘appears to the court inconsistent with substantial justice.’ ” Chastain v Gen Motors Corp, 467 Mich 888 (2002) (citation omitted); see also Lewis v LeGrow, 258 Mich App 175, 200; 670 NW2d 675 (2003). As indicated on the special verdict form, although the jurors ultimately concluded that plaintiff had not suffered a serious impairment of body function, they did conclude that plaintiff was, in fact, injured as a result of the July 2002 automobile accident. Moreover, the jurors had heard both plaintiffs own testimony and the deposition testimony of Dr. Hankenson on the issue of plaintiffs marijuana use. In light of the jury’s special verdict in this case, and taking into account the other admissible evidence concerning plaintiffs past marijuana use, we simply cannot conclude that the improperly elicited testimony of Porterfield was so prejudicial that declining to set aside the verdict or grant a new trial would be inconsistent with substantial justice. Chastain, supra at 888. Porterfield’s improperly elicited testimony concerning specific instances of marijuana use with plaintiff was therefore harmless, id., and we will not reverse on the basis of harmless error, Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 529; 730 NW2d 481 (2007).
c
Plaintiff next argues that defense counsel prejudicially emphasized and mischaracterized a letter written by his attorney to Dr. Joel Saper on September 8, 2005. The letter stated, in pertinent part:
Dear Dr. Saper:
Enclosed is a copy of an abstract of an article ... entitled “MRI [magnetic resonance imaging] assessment of the alar ligaments in the late stage of whiplash injury — a study of structural abnormalities and observer agreement.” According to the (abstract) study, whiplash trauma can cause permanent damage to the alar ligaments which can be objectively evidenced by a high resolution proton density-weighted MRI.
In order to prevail in litigation against the driver of the motor vehicle which rear-ended him (and injured him), Tom must have objective evidence of injury to his craniovertebral junction.
In the hope that it will provide such objective evidence of injury, Tom needs an MRI study, which accords with the protocol described in the enclosed abstract. Specifically, Tom needs a “proton density-weighted MRI of the craniovertebral junction in three orthogonal planes.” Can you arrange for such an MRI?
Thanks for your consideration of this request.
Sincerely yours,
John L. Noud
The trial court admitted this letter into evidence. Defense counsel argued, both during his opening statement and during his closing argument, that the letter “speaks volumes” and that it evidenced a plan by-plaintiff and his attorney to find favorable evidence of “an objective sign of injury to get to a jury.” Defense counsel also argued that the letter showed that plaintiffs attorney had assisted plaintiff in “faking it [and] these sorts of things.” Because plaintiff did not object to these statements by defense counsel, our review is for plain error. Veltman v Detroit Edison Co, 261 Mich App 685, 690; 683 NW2d 707 (2004).
It is true that counsel must avoid arguing that a party or attorney has “bought” testimony or witnesses “when there is no basis in the evidence for any such charge.” GLS LeasCo, Inc, supra at 137 (citation and quotation marks omitted). However, unlike the situation presented in GLS LeasCo, Inc, defense counsel never argued that plaintiff and his counsel had “bought” favorable evidence in the case at bar. Moreover, as noted previously, the letter to Dr. Saper had already been admitted into evidence. Accordingly, there was a “basis in the evidence” to support the charge that plaintiff and his attorney had set out to find and obtain favorable evidence in this case.
We acknowledge that defense counsel likely exceeded the bounds of proper argument when he stated in reference to the letter that plaintiffs attorney had assisted plaintiff in “faking it [and] these sorts of things.” However, plaintiff never objected to this comment or requested a curative instruction. Furthermore, the trial court twice instructed the jurors that they should confine their deliberations to the actual evidence presented at trial and that the arguments and remarks of the attorneys were not evidence. These instructions were sufficient to cure the prejudice arising from defense counsel’s improper remarks. Tobin v Providence Hosp, 244 Mich App 626, 641; 624 NW2d 548 (2001). We accordingly find no outcome-determinative plain error. See Veltman, supra at 690.
D
Plaintiff argues that defense counsel improperly raised the issues of plaintiffs wage-loss benefits and plaintiffs lack of health insurance at trial. Because plaintiff did not object to the challenged remarks of defense counsel in this regard, our review is for plain error. Id.
It is true that attorneys must avoid injecting the issue of insurance coverage and benefits into trial. Felice v Weinman, 372 Mich 278, 280; 126 NW2d 107 (1964); Kokinakes v British Leyland, Ltd, 124 Mich App 650, 652; 335 NW2d 114 (1983). “[0]ur prior cases have made it clear that it is not relevant whether or not a plaintiff seeking recovery for personal injury has other remedies available and, therefore, the topic should not be raised before the jury.” Reetz, supra at 104. Accordingly, it was error for defense counsel to argue before the jury that plaintiff did not have health insurance to cover his injuries and that plaintiff had already received wage-loss benefits from his insurance carrier. Id. However, as previously explained, the trial court instructed the jury that it should confine its deliberations to the actual evidence presented at trial and that the statements and remarks of counsel were not evidence. Such instructions were sufficient to cure any prejudice arising from the remarks of counsel. Tobin, supra at 641.
Moreover, any prejudice resulting from defense counsel’s improper references to plaintiff’s lack of health insurance and collection of wage-loss benefits “could have been cured by an instruction from the bench . .. .” Reetz, supra at 105. An improper reference to insurance coverage or benefits during trial is simply not the type of error that cannot be alleviated by a timely objection and curative instruction. Id.; see also Fritz v McDonough Power Equip Co, 432 Mich 904 (1989). Because there was no objection or request for a curative instruction when defense counsel referred to plaintiffs lack of health insurance and collection of wage-loss benefits, further appellate review of this issue is precluded. Reetz, supra at 105; Watkins v Manchester, 220 Mich App 337, 340; 559 NW2d 81 (1996).
Finally, even if this issue had been properly preserved, we note that the jurors never reached the issue of damages in this case. Indeed, the jury specifically found that plaintiff had not suffered a serious impairment of body function and that he was consequently entitled to no tort recovery. We believe that this finding by the jury was sufficient to overcome any presumption of prejudice raised by defense counsel’s improper references to plaintiffs insurance coverage and benefits. See Kokinakes, supra at 654.
II. ALLEGED EVIDENTIARY AND INSTRUCTIONAL ERROR
Plaintiff argues that the trial court erred by admitting into evidence the aforementioned letter written by his attorney to Dr. Joel Saper on September 8,2005, and by declining to give three requested supplemental jury instructions. Again, we disagree.
A
While preliminary questions of law are reviewed de novo, a trial court’s decision to admit or exclude evidence is generally reviewed for an abuse of discretion. Waknin v Chamberlain, 467 Mich 329, 332; 653 NW2d 176 (2002). An abuse of discretion occurs when the court’s decision falls outside the range of principled and reasonable outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). Jury instructions are reviewed in their entirety to determine whether they accurately and fairly presented the applicable law and the parties’ theories. Meyer v Center Line, 242 Mich App 560, 566; 619 NW2d 182 (2000). We review for an abuse of discretion the trial court’s decision regarding supplemental jury instructions. Grow v W A Thomas Co, 236 Mich App 696, 702; 601 NW2d 426 (1999). We “will not reverse a court’s decision regarding supplemental instructions unless failure to vacate the verdict would be inconsistent with substantial justice.” Id.
B
Plaintiff argues that the letter written by his attorney to Dr. Saper constituted inadmissible hearsay. The letter from plaintiffs attorney to Dr. Saper did not constitute hearsay because it was not offered to prove the truth of the matter asserted. MRE 801(c); Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 30; 436 NW2d 70 (1989). Indeed, it was merely offered to show that plaintiff and his attorney had attempted to locate objectively manifested evidence of plaintiffs injuries. Moreover, even if the letter had been offered to prove the truth of the matter asserted, it still would not have constituted hearsay because it was a vicarious admission to a third party, written by plaintiffs attorney during the course of and in furtherance of the attorney-client relationship. MRE 801(d)(2)(D); see also United States v Amato, 356 F3d 216, 220 n 3 (CA 2, 2004), and United States v Brandon, 50 F3d 464, 468 (CA 7, 1995). The trial court did not err by admitting the letter into evidence.
c
Plaintiff also argues that the trial court erred by refusing to give three supplemental jury instructions that he requested. As this Court explained in Koester v City of Novi, 213 Mich App 653, 664; 540 NW2d 765 (1995), rev’d in part on other grounds 458 Mich 1 (1998),
[w]hen the standard instructions do not properly cover an area, a trial court is required to give requested supplemental instructions if they properly inform the jury of the applicable law. Sherrard v Stevens, 176 Mich App 650, 655; 440 NW2d 2 (1988). However, it is error to instruct the jury on a matter not supported by the evidence. Mills v White Castle Systems, Inc, 199 Mich App 588, 591; 502 NW2d 331 (1992). The determination whether supplemental instructions are applicable and accurate is within the trial court’s discretion. Bordeaux v Celotex Corp, 203 Mich App 158, 168-169; 511 NW2d 899 (1993).
Plaintiff requested three supplemental jury instructions, all of which the trial court declined to give. The first supplemental jury instruction requested by plaintiff provided:
The following nonexhaustive list of objective factors may be of assistance in evaluating whether plaintiffs “general ability” to conduct the course of his normal life has been affected: (a) the nature and extent of the impair ment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery. This list of factors in not meant to be exclusive nor are any of the individual factors meant to be dispositive by themselves.
The language of this requested instruction was lifted word-for-word from our Supreme Court’s decision in Kreiner v Fischer, 471 Mich 109, 133-134; 683 NW2d 611 (2004). Therefore, we acknowledge that it would have “properly inform[ed] the jury of the applicable law.” Koester, supra at 664.
However, we conclude that the trial court was not required to give plaintiffs first requested supplemental jury instruction because it had already properly and adequately instructed the jury on the relevant law. Specifically, the trial court instructed the jury as follows:
One of the elements Plaintiff must prove in order to recover noneconomic loss damages in this case is that he sustained a serious impairment of body function.
Serious impairment of body function means an objectively manifested impairment of an important body function that affects Plaintiffs general ability to lead his normal life. An impairment does not have to be permanent in order to be a serious impairment of body function.
In order for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis.
If you find Plaintiff suffered serious impairment of body function, but his injury has ceased, or may in the future cease to be a serious impairment of body function, that fact will not relieve Defendants from liability for any of the noneconomic loss damages suffered by Plaintiff as a proximate result of [defendants’] negligence.
The operation of the mind and of the nervous system are body functions. Mental or emotional injury which [is] caused by physical injury or mental or emotional injury not caused by physical injury but which results in physical symptoms may be a serious impairment of body function.
The court’s actual instructions were substantially similar to the applicable model jury instructions and substantially paralleled the language of M Civ JI 36.01, 36.01A, 36.02, and 36.11. These instructions adequately conveyed to the jury the applicable law and the meaning of the phrases “serious impairment of body function” and “objectively manifested.” Notably, the instructions as read informed the jury that it should consider the duration of any injuries sustained by plaintiff, that an injury need not be permanent in order to qualify as a serious impairment of body function, and that an injury could constitute a serious impairment of body function even if plaintiff were to eventually recover. Because the instructions, as given, properly covered the area, the trial court was not required to give plaintiffs first requested supplemental jury instruction. Koester, supra at 664; Sherrard, supra at 655.
The second and third supplemental jury instructions requested by plaintiff provided that “[m]uscle spasms and loss of normal cervical lordotic curve may establish an objectively manifested injury” and “[m]emory is an important body function, and neuropsychological testing may suffice as an objective manifestation of an important body function.” This Court has observed that muscle spasms and loss of the normal lordotic curve may qualify as objective manifestations of injury. See, e.g., Chumley v Chrysler Corp, 156 Mich App 474, 481-482; 401 NW2d 879 (1986); Shaw v Martin, 155 Mich App 89, 97; 399 NW2d 450 (1986); Harris v Lemicex, 152 Mich App 149, 153-154; 393 NW2d 559 (1986); Franz v Woods, 145 Mich App 169, 176; 377 NW2d 373 (1985), overruled on other grounds by Di-Franco v Pickard, 427 Mich 32 (1986). This Court has also observed that memory is an important body function and that neuropsychological testing may suffice to show an objective manifestation of a serious impairment of that body function. Shaw, supra at 93-95; see also Luce v Gerow, 89 Mich App 546, 549-550; 280 NW2d 592 (1979). Therefore, plaintiffs second and third proposed supplemental instructions would also have “properly inform[ed] the jury of the applicable law.” Koester, supra at 664.
However, as with plaintiffs first proposed instruction, we cannot conclude that the trial court erred by declining to give plaintiffs second and third proposed supplemental jury instructions. This was a well-tried case. Both plaintiffs attorney and defendants’ attorney presented cogent and well-crafted arguments to the jury. Plaintiffs attorney thoroughly summarized the pertinent evidence and comprehensively explained plaintiffs theories of liability. Plaintiffs attorney argued that the x-rays and physical examinations had revealed muscle spasms in plaintiffs neck and a loss of the normal lordotic curve in plaintiffs neck and back. He argued that these x-rays and examinations constituted objective manifestations of neck and back injuries. Plaintiffs attorney also pointed out that plaintiffs doctors had conducted extensive neuropsychological testing on plaintiff. He argued that the results of this neuropsychological testing “constitute objective evidence of a brain injury.” He lastly noted that the court would read M Civ JI 36.02, and argued to the jury that “[t]he operation of the mind and of the nervous system” were important body functions.
As noted previously, the trial court instructed the jury that “[i]n order for an impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis” and that “[t]he operation of the mind and of the nervous system are body functions. Mental or emotional injury which [is] caused by physical injury or mental or emotional injury not caused by physical injury but which results in physical symptoms may be a serious impairment of body function.” There is simply no indication that the jury misunderstood plaintiffs theories of liability in this case, that the jury did not comprehend the applicable legal principles, or that it was unaware of plaintiffs position that the x-rays, other physical examinations, and neuropsychological testing had produced objectively manifested evidence of neck, back, and neurological injuries. Because the court’s instructions properly covered the relevant areas, the trial court did not err by declining to give plaintiffs second and third requested supplemental jury instructions. Koester, supra at 664; Sherrard, supra at 655.
The jury instructions read by the trial court in this case accurately and fairly presented the applicable law and the parties’ theories. Meyer, supra at 566. We perceive no instructional error requiring reversal.
III. MOTION FOR JNOV OR NEW TRIAL
Plaintiff next argues that the trial court erred by denying his motion for judgment notwithstanding the verdict (JNOV) or alternatively a new trial. We disagree. Reasonable jurors could honestly have reached different conclusions in this case, and the jury’s verdict of no cause of action was not against the great weight of the evidence.
A
“This Court reviews de novo a trial court’s ruling on a motion for JNOV” Attard v Citizens Ins Co of America, 237 Mich App 311, 321; 602 NW2d 633 (1999). In doing so, we must view the evidence in a light most favorable to the nonmoving party. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). “ ‘If reasonable jurors could honestly have reached different conclusions, the jury verdict must stand.’ ” Central Cartage Co v Fewless, 232 Mich App 517, 524; 591 NW2d 422 (1998), quoting Severn v Sperry Corp, 212 Mich App 406, 412; 538 NW2d 50 (1995).
“[W]ith respect to a motion for a new trial, the trial court’s function is to determine whether the overwhelming weight of the evidence favors the losing party.” Phinney v Perlmutter, 222 Mich App 513, 525; 564 NW2d 532 (1997). “This Court’s function is to determine whether the trial court abused its discretion in making such a finding.” Id. We give substantial deference to the trial court’s conclusion that a verdict was not against the great weight of the evidence. Id.
B
Plaintiff argues that the evidence presented at trial established that he suffered a serious impairment of body function as a matter of law. He asserts that the trial court should have granted his motion for JNOV for this reason.
Following trial, the jury returned a unanimous verdict of no cause of action. The jury determined (1) that defendant Derek Smith was negligent, (2) that plaintiff was injured in the accident, (3) that Smith’s negligence was a proximate cause of plaintiffs injuries, but (4) that plaintiffs injuries had not resulted in a serious impairment of body function. The question whether plaintiff had suffered a serious impairment of body function turned largely on the testimony and reports of physicians and psychologists, as well as the testimony of plaintiff himself.
In order to establish a serious impairment of body function, plaintiff was required to prove that he had suffered one or more objectively manifested injuries that affected his general ability to lead his normal life. MCL 500.3135(7); Kreiner, supra at 132.
As an initial matter, there was conflicting evidence with respect to whether plaintiffs alleged injuries were objectively manifested. Physical examinations and x-rays appeared to show that plaintiff had sustained muscle spasms and a loss of the normal lordotic curve in his neck and back as a result of the July 2002 automobile accident. In addition, both Dr. Branca and Dr. Andary opined that plaintiff had suffered a traumatic brain injury as a result of the accident, and plaintiff himself testified at length concerning not only his alleged neurological and cognitive symptoms, but also concerning his back, neck, and head pain. In contrast, Dr. Chodoroff did not believe that plaintiff had sustained brain trauma as a result of the July 2002 automobile accident, and suggested that much of plaintiffs pain was likely attributable to a degenerative disc condition that had been present in plaintiffs neck and back since before 2002.
But even assuming, for the sake of argument, that plaintiffs alleged back, neck, head, and neurological injuries were all objectively manifested, we find that reasonable jurors could have honestly concluded that plaintiffs injuries did not affect his general ability to lead his normal life. It is true that plaintiff testified that his life had changed since the accident. For example, plaintiff complained that he was no longer able to perform many of the tasks that he had taken for granted before the accident. Buttressing plaintiffs testimony in this regard, Dr. Andary testified that plaintiffs neurological deficits, mood disorders, pain, headaches, and depression would likely “be persistent.” Dr. Andary also “doubt[ed] that [plaintiffs] neck pain will ever go away,” and “suspect[ed]” that plaintiffs occipital neuralgia would “be permanent.” In contrast, however, other testimony painted a somewhat different picture. For instance, plaintiff admitted that he had begun building a deck and that he had used heavy equipment since the July 2002 accident. Plaintiff also admitted that he continued to exercise, ride a bike, jog, and play tennis, and even testified that he had taken up hunting since the 2002 accident. Similarly, witness Susan Barry was confident that plaintiff “could perform the duties of a tennis coach,” even after the July 2002 accident. Finally, the surveillance video played for the jury showed that plaintiff had plowed and shoveled snow without any apparent difficulties during early 2007. In short, plaintiffs claim that he could no longer lead his preaccident lifestyle was belied by certain opposing testimony, which showed that plaintiff continued to engage in many of the same work and recreational activities that he had enjoyed before the accident.
Viewing the evidence in a light most favorable to defendants, Sniecinski, supra at 131, we find that reasonable jurors could honestly have reached different conclusions with respect to whether plaintiffs injuries affected his general ability to lead his normal life. Central Cartage, supra at 524. Because reasonable jurors could have honestly differed on this issue, the trial court did not err by denying plaintiffs motion for JNOV Id.
c
Nor did the trial court err by denying plaintiffs motion for a new trial, which was predicated on the ground that the jury’s verdict was against the great weight of the evidence. The evidence in this case did not overwhelmingly favor either side. With respect to whether plaintiffs alleged injuries were objectively manifested, the jury’s determination turned largely on the weight ascribed to the testimony of the individual physicians and psychologists. “The weight given to the testimony of experts is for the jury to decide,” and it is the province of the jury to decide which expert to believe. Phillips v Deihm, 213 Mich App 389, 401-402; 541 NW2d 566 (1995); see also Detroit v Larned Assoc, 199 Mich App 36, 41; 501 NW2d 189 (1993). Further, with respect to whether plaintiffs alleged injuries had affected his general ability to lead his normal life, the jury’s determination turned largely on plaintiffs own credibility. It is the jury’s responsibility to determine the credibility and weight of the trial testimony. Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195; 555 NW2d 733 (1996). The jury has the discretion to believe or disbelieve a witness’s testimony, even when the witness’s statements are not contradicted, Baldwin v Nall, 323 Mich 25, 29; 34 NW2d 539 (1948), and we must defer to the jury on issues of witness credibility, Allard v State Farm Ins Co, 271 Mich App 394, 406-407; 722 NW2d 268 (2006).
We give substantial deference to the trial court’s conclusion that the jury’s verdict was not contrary to the great weight of the evidence. Phinney, supra at 525. In view of the totality of the evidence presented at trial, we simply cannot conclude that “the overwhelming weight of the evidence” favored plaintiff in this case. Id. The trial court did not abuse its discretion by denying plaintiffs motion for a new trial on the ground that the verdict was against the great weight of the evidence. Id.
IV TAXATION OF COSTS
In Docket No. 279595, plaintiff argues that the trial court erred by allowing defendants to improperly tax certain of their expenses as costs. We agree in part.
A
We review for an abuse of discretion the trial court’s ruling on a motion to tax costs under MCR 2.625. Klinke v Mitsubishi Motors Corp, 219 Mich App 500, 518; 556 NW2d 528 (1996). However, whether a particular expense is taxable as a cost is a question of law. We review questions of law de novo. Gen Motors Corp v Dep’t of Treasury, 466 Mich 231, 236; 644 NW2d 734 (2002).
B
“Costs will be allowed to the prevailing party in an action, unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the action.” MCR 2.625(A)(1); see also Beach v State Farm Mut Auto Ins Co, 216 Mich App 612, 621; 550 NW2d 580 (1996). The power to tax costs is purely statutory, and the prevailing party cannot recover such expenses absent statutory authority. Elia v Hazen, 242 Mich App 374, 379; 619 NW2d 1 (2000). The starting presumption in all civil cases is:
“[C]osts shall be allowed as a matter of course to the prevailing party. This does not mean, of course, that every expense incurred by the prevailing party in connection with the proceeding may be recovered against the opposing party. The term ‘costs’ as used [in] MCR 2.625(A) takes its content from the statutory provisions defining what items are taxable as costs.” [Beach, supra at 622, quoting 3 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), pp 720-721 (emphasis added).]
Defendants, as the prevailing parties at trial, filed a motion to tax costs under MCR 2.625 in the amount of $10,768.18. Specifically, defendants sought to tax the following expenses as costs: (1) The case evaluation fee of $75, (2) three motion fees, totaling $60, (3) transcript and videotaping costs related to the depositions of Dr. Hankenson, Dr. Branca, Dr. Andary, and Dr. Chodoroff, totaling $2,681.61, (4) copying of the doctors’ video depositions for trial, totaling $70, (5) a copy of the surveillance video for plaintiffs counsel, totaling $35, (6) expert witness fees for Dr. Chodoroff in the amount of $4,142.50, (7) “Investigator Costs” for witness Gary Setla in the amount of $1,305.25, (8) statutory attorney fees in the amount of $170, (9) costs for “Blow Up Mounts” in the amount of $1,351.50, (10) a subpoena fee for witness Lauren Bell in the amount of $15, (11) mileage to and from trial in the amount of $562.32, and (12) general “Copying Charges” in the amount of $300.
Plaintiff first argues that there was no legal authority supporting the taxation of “Investigator Costs” for witness Gary Setla in the amount of $1,305.25. Defendants respond by arguing that Setla was an “expert witness” and that the “Investigator Costs” were therefore taxable pursuant to MCL 600.2164.
It is true that “MCL 600.2164(1) authorizes a trial court to award expert witness fees as an element of taxable costs.” Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 466; 633 NW2d 418 (2001). However, Setla was never qualified as an expert witness at trial. Moreover, even if Setla had been qualified as an expert, the “Investigator Costs” still would not have been taxable under MCL 600.2164 because a review of that statute reveals that it is expressly inapplicable here. MCL 600.2164(3) states that the statute does not apply to “witnesses testifying to the established facts, or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters of opinion.” (Emphasis added.) Setla, a private investigator, took surveillance film for the express purpose of establishing the fact that plaintiff was still able to engage in certain of his preaccident activities such as plowing and shoveling snow. Setla was not hired to testify concerning a matter of opinion. Thus, the statute does not apply, and the “Investigator Costs” of $1,305.25 were not taxable pursuant to MCL 600.2164. Century Dodge, Inc v Chrysler Corp, 154 Mich App 537, 547-548; 398 NW2d 1 (1986). Nor have we located any other statute or court rule that would authorize the taxation of these “Investigator Costs.” Because the “Investigator Costs” in the amount of $1,305.25 were not taxable, the trial court abused its discretion by awarding them as an element of the taxed costs. Klinke, supra at 518.
Plaintiff next argues that there was no legal authority permitting taxation of costs for “Blow Up Mounts” in the amount of $1,351.50. Plaintiff is correct. The expense of exhibit enlargement is not a taxable cost. J C Bldg Corp II v Parkhurst Homes, Inc, 217 Mich App 421, 429; 552 NW2d 466 (1996); Taylor v Anesthesia Associates of Muskegon, 179 Mich App 384, 387; 445 NW2d 525 (1989). The trial court abused its discretion by awarding the expense of “Blow Up Mounts” as an element of the taxed costs. Klinke, supra at 518.
Plaintiff also argues that there was no authority allowing the taxation of mileage to and from trial in the amount of $562.32. Again, plaintiff is correct. Although the traveling expenses of witnesses may be taxed as costs, MCL 600.2405(1); MCL 600.2552(1); MCL 600.2552(5), there is no statute or court rule allowing for the taxation of the traveling expenses of attorneys or parties. See McDonald v McDonald, 45 Mich 44, 45-46; 7 NW 230 (1880) (observing that the traveling expenses of a party himself were not taxable as costs). We conclude that the trial court abused its discretion by awarding mileage expenses in the amount of $562.32 as an element of the costs taxed in this case. Klinke, supra at 518.
Plaintiff further argues that there was no legal authority permitting taxation of general “Copying Charges” in the amount of $300. Plaintiff is correct. No statute or court rule allows the taxation of expenses related to the general copying of documents. See Beach, supra at 622-623. While the time spent by an attorney on activities such as the copying of documents may be awardable as attorney fees, the individual copying expenses are not awardable as taxable costs. Because no statute or court rule authorizes the taxation of general copying expenses, the trial court abused its discretion by awarding copying charges in the amount of $300 as an element of the costs taxed in this case. Klinke, supra at 518.
Plaintiff next argues that that there was no authority allowing the taxation of the case evaluation fee of $75. Plaintiff is again correct. Contrary to defendants’ assertion, case evaluation fees are not specifically covered by MCL 600.2529. Indeed, this Court has specifically observed that case evaluation fees, formerly known as mediation fees, are not taxable as costs. J C Bldg Corp II, supra at 429. The trial court abused its discretion by awarding the case evaluation fee of $75 as an element of the taxed costs. Klinke, supra at 518.
Plaintiff also argues that there was no legal authority permitting the taxation of $35 for copying of the surveillance video. Plaintiff is correct. There is simply no statute or court rule that authorizes the taxation of costs for the copying of surveillance videos, and the trial court therefore abused its discretion by awarding this amount as an element of the costs taxed in this case. Klinke, supra at 518.
Lastly, plaintiff argues that there was no authority permitting the taxation of $41.06 for the copying of Dr. Hankenson’s video deposition and $70 for the copying of the remaining doctors’ video depositions. Although correct about the above-mentioned items, plaintiff is incorrect with respect to these two expenses. The costs of copying the video depositions at issue here were properly taxed because the depositions were filed in the clerk’s office and used as evidence at trial. MCR 2.315(1); MCL 600.2549.
The trial court erred by allowing defendants to tax $3,629.07 in improper expenses. On remand, the trial court shall modify the order taxing costs accordingly, by decreasing the amount of taxable costs from $10,768.18 to $7,139.11.
V REASONABLENESS OF EXPERT WITNESS FEES
Plaintiff next argues that the trial court abused its discretion by allowing defendants to tax Dr. Chodoroff s expert witness fees of $4,142.50, which were charged at a rate of $500 an hour. We cannot agree.
A
We review for an abuse of discretion the trial court’s determination of the proper amount of taxable expert witness fees. Rickwalt, supra at 466. An abuse of discretion occurs when the court’s decision falls outside the range of principled and reasonable outcomes. Maldonado, supra at 388.
B
The trial court allowed defendants to tax Dr. Chodoroffs expert witness fees in the amount of $4,142.50. Those expert witness fees were charged at a rate of $500 an hour. As noted previously, “MCL 600.2164(1) authorizes a trial court to award expert witness fees as an element of taxable costs.” Rickwalt, supra at 466. The trial court also has discretion under MCL 600.2164 to include fees for the expert’s preparation time. Herrera v Levine, 176 Mich App 350, 357-358; 439 NW2d 378 (1989).
Plaintiff argues that Dr. Chodoroff s hourly rate of $500 was “patently unreasonable.” However, Dr. Hankenson, one of plaintiffs medical experts in this case, testified that he was paid $375 an hour for his deposition testimony. Dr. Hankenson is a family doctor and is board-certified in family medicine only. In contrast, Dr. Chodoroff is a specialist who is board-certified in the fields of physical medicine and rehabilitation and electrodiagnostic medicine. In comparison to Dr. Hankenson’s hourly rate of $375, Dr. Chodoroff s hourly rate of $500 does not strike us as “patently unreasonable.”
In Rickwalt, the plaintiff sought to tax $5,184.80 in expert witness fees. Rickwalt, supra at 466. “[A]n itemized bill was presented to the trial court and . . . the parties argued regarding the propriety of specific items within the bill.” Id. The record indicated that the expert had spent time preparing for his deposition testimony, establishing a case file, reviewing deposition testimony and notes, preparing a reconstruction of the decedent’s death, and reviewing the mediation summaries. Id. The trial court “considered the breakdown of [the expert’s] charges, ultimately finding appropriate the requested amounts of time [the expert] spent preparing for his testimony and trial, but reducing the requested hourly fees for [the expert’s] trial preparation, from $130 an hour to $100 an hour, and trial time, from $200 an hour to $150 an hour.” Id. at 466-467. Because the record “indicate[d] that the trial court considered and weighed the reasonableness of [the] requested expert witness fees,” this Court concluded that the trial court’s ultimate award of $4,196 had not constituted an abuse of discretion. Id. at 467.
Similarly in this case, the trial court observed during oral argument on the motion to tax costs that it had carefully considered the amount of expert witness fees that defendants sought to tax. After reviewing defendants’ itemized bill of costs and listening to the parties’ arguments, the court concluded that an award of expert witness fees for Dr. Chodoroff in the amount of $4,142.50 would not be unjustified. As in Rickwalt, the record “indicates that the trial court considered and weighed the reasonableness of [the] requested expert witness fees.” We cannot conclude that the trial court’s ultimate award of $4,142.50 in expert witness fees for Dr. Chodoroff, at a rate of $500 an hour, fell outside the range of principled and reasonable outcomes. Maldonado, supra at 388.
VI. SANCTIONS PURSUANT TO MCR 2.114
Plaintiff lastly argues that the trial court erred by declining to sanction defendants pursuant to MCR 2.114. We disagree.
A
We review for clear error the trial court’s determination whether to impose sanctions under MCR 2.114. Contel Sys Corp v Gores, 183 Mich App 706, 711; 455 NW2d 398 (1990). A decision is clearly erroneous when, although there may be evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.
B
Plaintiff contends that because there was no arguable legal basis for taxing certain of the costs sought by defendants in this case, the trial court should have sanctioned defendants under MCR 2.114. Pursuant to MCR 2.114(D), an attorney is under an affirmative duty to conduct a reasonable inquiry into both the factual and legal basis of a document before it is signed. LaRose Market, Inc v Sylvan Ctr, Inc, 209 Mich App 201, 210; 530 NW2d 505 (1995). Under MCR 2.114(D), the signature of a party or an attorney is a certification that the document is “well grounded in fact and... war ranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law” and that “the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” The filing of a signed document that is not well grounded in fact and law subjects the filer to sanctions pursuant to MCE 2.114(E). Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 407; 651 NW2d 756 (2002). MCE 2.114(E) states that the trial court “shall” impose sanctions upon finding that a document has been signed in violation of the rule. Therefore, if a violation of MCE 2.114(D) has occurred, the sanctions provided for by MCE 2.114(E) are mandatory. Contel Sys Corp, supra at 710-711.
The taxation of costs in civil actions is generally governed by chapter 24 of the Eevised Judicature Act, MCL 600.2401 et seq. Many of the statutes contained in this chapter are written in a cumbersome manner, and several of the statutes refer to other statutes to define which costs may actually be taxed. After reviewing this body of statutory law, we conclude that defendants likely honestly believed that many of the above-mentioned, disputed expenses were taxable as costs. Moreover, we do not find that the arguments presented by defendants in support of the requested costs were frivolous. Because defendants put forth reasonable arguments in support of their motion to tax costs, we cannot conclude that defendants’ motion was frivolous or devoid of legal merit when made. See Schadewald v Brulé, 225 Mich App 26, 42; 570 NW2d 788 (1997), and Attorney General v Harkins, 257 Mich App 564, 576-577; 669 NW2d 296 (2003). The trial court did not clearly err by declining to sanction defendants under MCE 2.114.
VII. CONCLUSION
In Docket No. 277983, we affirm the jury’s verdict of no cause of action. No error occurred requiring reversal. In Docket No. 279595, we affirm the trial court’s specific award of expert witness fees and the trial court’s denial of plaintiffs request to sanction defendants. However, we reverse the trial court’s order taxing costs to the extent that it allows the taxation of $3,629.07 in improper expenses. On remand, the trial court shall modify the order taxing costs accordingly, by decreasing the amount of taxable costs from $10,768.18 to $7,139.11.
Affirmed in part, reversed in part, and remanded for modification of the order taxing costs consistent with this opinion. We do not retain jurisdiction. No costs under MCR 7.219, neither party having prevailed in full.
Because plaintiffs testimony concerning his past marijuana use was relevant only as it related to his cognitive abilities, mental state, and medical condition, a request for a limiting instruction would have been appropriate. MRE 105; see also Wood v State, 20 Ark App 61, 66; 724 SW2d 183 (1987). However, no such limiting instruction was requested. The trial court is under no obligation to provide a limiting instruction when none is requested. MRE 105; People v Rice (On Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999).
See M Civ JI 36.11.
See M Civ JI 36.02.
In particular, defendants sought $239.80 for “Dr. Hankenson— Transcript Fee”; $974.25 for “Dr. Branca and Dr. Andary Transcript Fees”; $41.06 for “Dr. Hankenson — Video Copy”; $1,031.50 for “Deposition Transcript of Dr. Brian Chodoroff”; and $395 for “Videotape of Dr. Chodoroff.”
MCL 600.2549 does allow for the taxation of costs “for the certified copies of documents or papers recorded or filed in any public office” if “the documents or papers were necessarily used.” However, there is simply no indication that the $300 at issue here was spent for certified copies of official public documents. | [
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PER CURIAM.
Plaintiffs have filed an original action in this Court, seeking a writ of mandamus against defendants Michigan Secretary of State (the Secretary) and the Michigan Board of State Canvassers (the Board). Plaintiffs request a writ directing the Secretary and the Board to reject an initiative petition that intervening defendant Reform Michigan Government Now! (RMGN) has filed. The RMGN initiative petition seeks to place a proposal on the ballot for the November 2008 general election that would modify the Michigan Constitution. We grant the relief sought in the complaint for a writ of mandamus.
I. INTRODUCTION
The issues before this Court concern the interpretation and application of certain provisions of the Michigan Constitution of 1963. The framers of Michigan’s Constitution inserted specific provisions, which must be followed, not overlooked, when seeking to modify our state’s guiding legal document. As Judge METER observed several years ago:
The Constitution reigns supreme. It is an immutable, enduring document. Its fundamental integrity cannot be diluted nor tarnished by those who would interpret it in a myopic, transient or parochial fashion. The principles enunciated therein will not change unless we the People so decide by prescribed methods. It is also inviolate. There should be no modification to the sacred document we call our Constitution unless there are no less invasive or intrusive means to accomplish needed change. This I call the constitutional doctrine of manifest necessity. [Meter, An analysis of the unified trial court, 20 Quinnipiac L R 697, 706 (2001).]
Today our Court reaffirms these principles. Constitutional modification requires strict adherence to the methods and approaches included in the constitution itself. Shortcuts and end runs to revise the constitution, which ignore the pathways specifically set forth by the framers, cannot be tolerated. As Justice Markman said in his concurrence in Michigan United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359, 393; 630 NW2d 297 (2001) (MUCC III), “the ‘overarching right of the people’ is to have the constitution that they have ratified given respect and accorded its proper meaning.”
We offer no opinion on the merits of any or all of the substantive matters contained in the RMGN initiative petition. Also, let us be clear at the outset what our opinion today does not do. We do not act to prevent the citizens from voting on a proposal simply because that proposed is allegedly too complex or confusing. Nor do we seek to substitute our own preferences regarding governmental form, structure, or functioning for those of the electorate. We do not, for example, determine whether reducing the salaries of legislators and certain executive branch officers is a good idea or a bad one. Nor do we decide whether establishing new financial disclosure requirements for elected officials and candidates for public office should be done in the constitution, by statute, or not at all. We do not agree or disagree with the redistricting criteria or process contained in the RMGN proposal. And we most certainly do not address the question whether there should be a reduction in judicial salaries and in the number of appellate court judgeships on the ground that these judgeships are “unnecessary.” The broad range of public policy issues, and those items that involve politics and elections, are not the province of the judicial branch of government.
RMGN contends that plaintiffs’ arguments amount to a “judicial veto,” preventing a vote on this massive initiative petition. RMGN misstates the legal issue and ignores specific constitutional requirements, and its argument reflects an appeal to the court of public opinion, not a court of law. Our decision interprets and applies provisions of the constitution of the state of Michigan, nothing less and nothing more.
As we will explain, the Michigan Constitution clearly establishes separate methods for enacting an “amendment” to, as compared to a “general revision” of, the constitution. It is absolutely clear that the procedure for amending the constitution cannot effectuate such a “general revision.” Here, RMGN submitted its proposal under the initiative petition procedure that Const 1963, art 12, § 2, established for amending the constitution. However, we conclude that the proposal is a “general revision” of the constitution. Only the constitutional convention procedure established by Const 1963, art 12, § 3, can accomplish such a general revision. Therefore, the constitutional power of initiative does not extend to this proposal. Accordingly, the RMGN initiative petition does not meet the constitutional prerequisites for acceptance and the Board and the Secretary have a clear legal duty to reject the petition. Concurrently with the release of this opinion, we have issued an order direct ing the Secretary and the Board to stop the canvass, to reject the RMGN initiative petition, and to not allow the proposal to be placed on the ballot.
II. FACTS AND PROCEDURAL HISTORY
A. THE PARTIES
(1) PLAINTIFFS .
Citizens Protecting Michigan’s Constitution is a “ballot question committee” organized for the purpose of challenging the RMGN petition. Lowell R. Ulrich is the chief judge of the Chippewa County Probate Court. Michael Bishop and Alan Cropsey are members of the Michigan State Senate. Virgil Smith, Jr., is a member of the Michigan State House of Representatives. Mike Bryanton is the Ingham County Clerk.
(2) DEFENDANTS
The Secretary holds office under the constitution. See Const 1963, art 5, § 3. The Secretary is the single executive, see id., heading the Department of State. The Department of State is one of the principal departments in the executive branch of state government. See MCL 16.104(1). The Secretary is the chief election officer of the state and has supervisory authority over local election officials in the performance of their duties. MCL 168.21.
The Board is established by the constitution and by statute. Const 1963, art 2, § 7; MCL 168.22. It is the Board that canvasses an initiative petition to ascertain if the requisite number of qualified and registered electors has signed the petition and that makes a final determination regarding the sufficiency of a petition. See MCL 168.476.
(3) INTERVENING DEFENDANT
We granted RMGN permission to intervene in this matter. RMGN is a “ballot question committee” that was organized for the purpose of drafting, circulating, collecting signatures for, and submitting for approval the initiative petition that is being challenged here.
(4) AMICUS CURIAE
We granted the Attorney General permission to file a brief as amicus curiae. Although the Attorney General’s office represents the Board and the Secretary, the Attorney General asserts that he has an independent obligation as a state officer to protect and defend the constitution.
B. THE RMGN INITIATIVE PETITION
The RMGN initiative petition seeks to alter four articles of the Michigan Constitution of 1963: article 2 (elections), article 4 (legislative branch), article 5 (executive branch), and article 6 (judicial branch). More specifically, as the Attorney General points out, the proposal would, among other things:
(1) allow voting by absentee ballot without giving a reason;
(2) establish in the executive branch a new office of elections;
(3) modify the referendum procedure;
(4) modify the initiative procedure;
(5) reduce the number of legislators in the state Senate from 38 to 28;
(6) reduce the number of legislators in the state House of Representatives from 110 to 82;
(7) create a new commission with sole and exclusive authority over legislative districting;
(8) establish specific rules for creating legislative districting plans;
(9) eliminate the current provision allowing for judicial review of districting plans;
(10) limit lobbying activities of members of the Legislature who leave office;
(11) reduce the base salaries of legislators, the Governor, the Lieutenant Governor, the Attorney General, and the Secretary;
(12) authorize the Legislature to grant any citizen standing to bring certain environmental lawsuits;
(13) alter the pension and retirement benefits of legislators, certain executive officers, and judges elected after January 1, 2009;
(14) provide for public inspection of financial records of the Legislature;
(15) reduce the maximum number of principal departments in the executive branch;
(16) limit the lobbying activities of heads of principal departments in the executive branch after leaving office;
(17) establish a maximum number of state boards and commissions;
(18) require a separate vote to elect the Governor and the Lieutenant Governor, rather than a single joint vote for the Governor and the Lieutenant Governor candidates nominated by the same party;
(19) eliminate the Governor’s authority to fill vacancies in the office of the Secretary and the Attorney General;
(20) require financial disclosures by certain elected officials (including judges and legislators) and candidates for those positions;
(21) reduce the number of Supreme Court justices from seven to five;
(22) require the Supreme Court to issue rules for the public inspection of documents and records relating to the administration of the courts;
(23) reduce the number of Court of Appeals judges to 21;
(24) reduce the number of Court of Appeals districts to three;
(25) eliminate the Legislature’s authority to increase the number of Court of Appeals judges and change the districts from which they are elected;
(26) add 10 circuit court judgeships;
(27) reduce judicial salaries by 15 percent;
(28) require the Legislature to implement certain requirements regarding jury lists; and
(29) replace the Judicial Tenure Commission with a judicial performance commission, composed primarily of nonlawyer citizens.
C. THE FILING OF THE RMGN INITIATIVE PETITION
RMGN filed its initiative petition with the Secretary on July 7, 2008. The Secretary subsequently notified the Board, and the Board has since begun its canvass of the petition. In a letter of July 23, 2008, to plaintiffs’ counsel, the Secretary expressed an intention “to proceed with the actions necessary to place this proposal on the ballot provided the requisite number of valid signatures have been submitted.”
D. THE COMPLAINT FOR A WRIT OF MANDAMUS
On July 24, 2008, plaintiffs filed their complaint for a writ of mandamus in this Court. Plaintiffs claim that the RMGN initiative petition is not eligible to be placed on the ballot because it is not merely an “amendment” to the constitution, but is a “general revision” of the constitution that only a constitutional convention can accomplish. Plaintiffs further claim that the RMGN initiative petition is not eligible to be placed on the ballot because it offers more than a single amendment with a single purpose.
III. ANALYSIS
A. JURISDICTION
This Court has original jurisdiction to entertain an action for “mandamus against a state officer.” MCR 7.203(C)(2), citing MCL 600.4401. The Secretary and the Board are “state officers” for purposes of mandamus. See, e.g., Citizens for Protection of Marriage v Bd of State Canvassers, 263 Mich App 487, 491; 688 NW2d 538 (2004). Therefore, this case is within our jurisdiction.
B. “RIPENESS”
RMGN argues that this case is not properly before the Court because the Board has not yet made its sufficiency determination regarding the initiative petition. Although RMGN phrases the argument in terms of jurisdiction, we do not consider this a jurisdictional issue, but a “ripeness” issue. A claim is not ripe if it rests upon contingent future events that may not occur as anticipated, or may not occur at all. Huntington Woods v Detroit, 279 Mich App 603, 615-616; ___ NW2d ___ (2008). RMGN essentially argues that because its initiative petition is currently before the Board, there remains the possibility that the Board will deem the initiative petition insufficient and the submission of the proposal on the ballot may not occur. However, we hold that this case is indeed “ripe” for a decision by this Court.
In Michigan United Conservation Clubs v Secretary of State (On Remand), 246 Mich App 82; 630 NW2d 379 (2001) (MUCC II), rev’d 464 Mich 359 (2001), the plain tiffs sought a writ of mandamus ordering the Secretary and the Board to reject a petition for a referendum. This Court, by order, initially denied mandamus on the ground that the issue was not ripe because the Board had not completed its canvass. However, the Supreme Court in lieu of granting leave to appeal, vacated our order and remanded the case for plenary consideration. In so doing, the Supreme Court stated:
The issue in this case is whether the referendum sought is with respect to a law “making appropriations for state institutions or to meet deficiencies in state funds.” Const 1963, art 2, § 9. This controversy is ripe for review because it is not dependent upon the Board of Canvassers’ counting or consideration of the petitions but rather involves a threshold determination whether the petitions on their face meet the constitutional prerequisites for acceptance. All of the information necessary to resolve this controversy, i.e., whether 2000 PA 381 constitutes a law which is excepted from the referendum process under Const 1963, art 2, § 9, is presently available. [Michigan United Conservation Clubs v Secretary of State, 463 Mich 1009 (2001) (MUCC I) (internal citations omitted).]
Here, plaintiffs are arguing that, for reasons other than the sufficiency of the RMGN initiative petition, the proposal is not eligible to be placed on the ballot. Essentially, plaintiffs contend that this case involves a “threshold determination” that is ripe for our consideration because its resolution is not dependent on any determination by the Board. We agree and conclude that the doctrine of ripeness does not preclude our resolution of plaintiffs’ claims.
C. MANDAMUS
(1) REQUIREMENTS FOR MANDAMUS
Mandamus is the appropriate remedy for a party seeking to compel action by election officials. See, e.g., Wolverine Golf Club v Secretary of State, 24 Mich App 711; 180 NW2d 820 (1970), aff'd 384 Mich 461 (1971); Automobile Club of Michigan Comm for Lower Rates Now v Secretary of State (On Remand), 195 Mich App 613; 491 NW2d 269 (1992). That said, a writ of mandamus is an extraordinary remedy and will only be issued where (1) the party seeking the writ has a clear legal right to performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result. Tuggle v Dep’t of State Police, 269 Mich App 657, 668; 712 NW2d 750 (2005); Genesis Ctr, PLC v Comm’r of Financial & Ins Services, 246 Mich App 531, 546; 633 NW2d 834 (2001). We also note that, under MCR 7.216(A)(7), this Court can, in our discretion and on terms we deem just, “enter any judgment or order and grant further or different relief as the case may require.”
(2) POSITIONS OF THE PARTIES
The Secretary, the Board, and RMGN argue that plaintiffs have failed to establish the necessary prerequisites for granting mandamus. In particular, they argue that determining whether a proposal is an “amendment” to, or a “general revision” of, the constitution, or whether a proposal has more than a single purpose, is beyond the scope of the authority of the Secretary and the Board. Therefore, they argue, plaintiffs cannot establish that the Secretary and the Board have a clear legal duty to preclude submission of the RMGN proposal to the electors. They go on to argue that even if such duties exist, the exercise of those duties would not be a ministerial task.
Plaintiffs argue to the contrary. According to plaintiffs, the Board and the Secretary do indeed have a clear legal duty to make the “threshold determination” of whether the proposal is eligible to be placed on the ballot. Plaintiffs then note that the Secretary, in her July 23, 2008, letter, and on the basis of her belief that it is not her job to do so, has expressly declined to address the threshold ballot-eligibility questions that plaintiffs raise. They assert that if the RMGN proposal is not “ballot eligible,” the proper, indeed the only, remedy is a writ of mandamus.
The Attorney General argues that the RMGN initiative petition is a revision of the constitution, and therefore not the proper subject of an initiative petition, but he does not specifically take a position on whether mandamus should issue.
(3) EXISTENCE OF A CLEAR LEGAL DUTY
This Court has previously held that the Board’s duties with regard to a proposed constitutional amendment are “limited to determining whether the form of the petition substantially complies with the statutory requirements and whether there are sufficient signatures to warrant certification of the proposal.” Citizens for Protection of Marriage, supra at 492; see also MCL 168.476 and MCL 168.482. The Board has no authority to consider the lawfulness of a proposal. Citizens for Protection of Marriage, supra at 493. The Board must complete its canvass and make the official declaration of the sufficiency or insufficiency of the petition “at least 2 months before the election” at which the proposal is to be submitted. MCL 168.476(2); MCL 168.477(1). The Board also has the responsibility to approve the proposal’s statement of purpose, which the Director of Elec tions creates and which is not to exceed 100 words. MCL 168.474; MCL 168.22e; see also Citizens for Protection of Marriage, supra at 494.
The Secretary’s duties in regard to an initiative petition are also limited. Upon the filing of a signed petition, the Secretary must “immediately” notify the Board by first-class mail. MCL 168.475(1). The Secretary has no further duties until after the Board deems a petition sufficient and approves the Director of Elections’ statement of purpose. Once the Board approves the statement of purpose, the Secretary must send copies of the statement of purpose to newspapers to give “as wide publicity as possible . . . .” MCL 168.477(1). In addition, the Secretary must “[pjrepare the form of ballot for any proposed amendment to the constitution or proposal under the initiative or referendum provision of the constitution to be submitted to the voters of this state.” MCL 168.31(l)(f). The Secretary then provides the form, along with copies of the proposed amendment of the constitution, to the county clerks. MCL 168.480.
On their face, these duties of the Board and the Secretary may not include making a “threshold determination” whether a ballot proposal is an “amendment” to, as opposed to a “general revision” of, the constitution or whether the ballot proposal contains more than one purpose. Further, an act is ministerial if it is “ ‘ “prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” ’ ” Carter v Ann Arbor City Attorney, 271 Mich App 425, 439; 722 NW2d 243 (2006) (citations omitted). We agree with the Secretary, the Board, and RMGN that determining whether a ballot proposal is an “amendment” to, or a “general revision” of, the constitution and determining whether a ballot proposal serves more than one purpose involve, at a minimum, the exercise of judgment. But even assuming that the duties plaintiffs ascribe to the Board and the Secretary do not exist or, even if they do exist, that they are not “ministerial” in nature, we conclude that the Board and the Secretary have a clear legal duty that this Court can enforce in this particular case.
The entire history of the Michigan United Conservation Clubs case best illustrates the clear legal duty at issue here. As we mentioned earlier, this Court initially denied mandamus on the ground that the issue was not “ripe” because the Board had not completed its canvass. The Supreme Court remanded the case for plenary consideration, stating that “[a] 11 of the information necessary to resolve this controversy, i.e., whether 2000 PA 381 constitutes a law which is excepted from the referendum process under Const 1963, art 2, § 9, is presently available.” MUCC I, supra at 1009. On remand, this Court denied the request for a writ of mandamus, concluding that 2000 PA 381 was indeed subject to the referendum process. See MUCC II, supra at 84, 93. On appeal after this Court’s decision on remand, the Supreme Court reversed, holding:
The issue here is whether 2000 Public Act 381 is exempt from the power of referendum of the Michigan Constitution. Having granted leave to appeal and heard oral argument, this Court finds as follows:
(1) The power of referendum of the Michigan Constitution “does not extend to acts making appropriations for state institutions . ...” Const 1963, art 2, § 9.
(2) 2000 PA 381 states that “one million dollars is appropriated from the general fund to the department of state police ....” MCL 28.425w(l).
(3) An appropriation of $1,000,000 is an “appropriation,” and the Department of State Police is a “state institution.”
(4) Therefore, the power of referendum of the Michigan Constitution does not extend to 2000 PA 381.
Accordingly, consistent with Const 1963, art 2, § 9 and an unbroken line of decisions of this Court interpreting that provision, the Court of Appeals is reversed, and the relief sought in the complaint for mandamus is granted. The May 21, 2001 declaration by the Board of State Canvassers of the sufficiency of the petition for referendum on 2000 PA 381 is vacated and defendant Secretary of State and the Board of State Canvassers are directed that 2000 PA 381 is not subject to referendum for the reasons set forth herein. [MUCC III, supra at 365-366.]
Michigan United Conservation Clubs clearly establishes that challenges of the type made by plaintiffs in this case may be raised in a mandamus action against the Board and the Secretary before the Board’s sufficiency determination.
The Secretary further contends that neither she nor the Board has a clear legal duty to conduct a substantive review of the RMGN initiative petition to determine its constitutional sufficiency. And, indeed, plaintiffs concede that it is well settled that a substantive analysis of the RMGN initiative petition is premature. In Hamilton v Secretary of State, 212 Mich 31, 34-35; 179 NW 553 (1920), the Michigan Supreme Court established that substantive constitutional challenges to the validity of a ballot proposal are premature when made before the voters adopt the proposition in question. However, our Supreme Court has since made a distinction between substantive challenges and questions related to whether the proposition is constitutionally eligible to be presented before the voters.
In a subsequent case, Leininger v Secretary of State, 316 Mich 644, 654-656; 26 NW2d 348 (1947), the Court carved out an exception to the Hamilton rule, holding that a constitutionally fatal defect in an initiative petition supported the issuance of a writ of mandamus prohibiting the Secretary of State from transmitting the proposed law. The Leininger Court explained that, unlike in Hamilton, “[i]n the case at bar ... we are not concerned with the question of whether the substance of the proposed law is violative of the Federal or State Constitutions. Here the question is whether the petition, in form, meets the constitutional requirements so as to qualify it for transmittal to the legislature and submission to the people.” Id. at 651. On this point, the words of Chief Justice OSTRANDER in Scott v Secretary of State, 202 Mich 629, 643; 168 NW 709 (1918), are most instructive:
Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution. [Emphasis added.]
This is exactly what is involved here. The inquiry here involves the “threshold determination” whether the RMGN initiative petition meets the constitutional pre requisites for placement on the ballot. This is not an instance of “judicial veto” that Justice SHARPE admonished against in Hamilton, supra at 38 (SHARPE, J., concurring).
City of Jackson v Comm’r of Revenue, 316 Mich 694; 26 NW2d 569 (1947), is also directly relevant. In that case, the plaintiffs, by way of mandamus, sought to compel the defendants to comply with an amendment of the constitution that the voters had approved in a general election. The amendment reached the ballot for the general election through an initiative petition. At one point, the Supreme Court stated:
Defendants also claim that the amendment is void because it contains proposals for more than one purpose; and that it is an ineffectual attempt to revise the Constitution. The claims are without merit. We have carefully considered all of the objections raised as to the legality of the petitions and the manner in which this amendment has been submitted to the people. We find no defects in the petitions or in the manner of submitting the proposed amendment, to such extent that the amendment must now be declared a nullity. In that regard we are not unmindful of the fact that to now declare the amendment a nullity would thwart the expressed will of the voters. We also are conscious of the fact that these objections might have been raised in advance of the submission, as was done in Leininger v. Secretary of State [316 Mich 644; 26 NW2d 348 (1947)]. In that case we found that the initiative petition was fatally defective[ ] and directed the secretary of State, the State board of canvassers and the attorney general to refrain from submitting the proposal to the voters. [Id. at 711 (emphasis added).]
The cases establish that a “threshold determination” of whether the RMGN initiative petition meets the constitutional prerequisites for acceptance is now ripe for a decision by this Court. Further, the cases establish that a petition will not meet the constitutional prerequisites for acceptance if the constitutional power of initiative does not extend to the proposal at issue. And, finally, the cases establish that if we determine that the RMGN initiative petition is not subject to the constitutional power of initiative, we may grant mandamus and direct the Board and the Secretary to reject the RMGN initiative petition.
Thus, assuming the Board and the Secretary have no clear legal duty to determine whether the RMGN initiative petition is an “amendment” to, or a “general revision” of, the constitution, or a duty to determine whether the RMGN initiative petition serves more than one purpose, then this Court must make the “threshold determination” that the RMGN initiative petition does not meet the constitutional prerequisites for acceptance. And, at that point, the Board and the Secretary have a clear legal duty to reject the RMGN petition. In other words, in this case, our order would not enforce any duty on the part of the Board and the Secretary to make the “threshold determination” whether the RMGN initiative petition is an “amendment” or a “general revision,” or whether it serves more than one purpose. Rather, our order would enforce a duty on the part of the Board and the Secretary to reject the RMGN initiative petition in light of our “threshold determination” that it does not meet the constitutional prerequisites for acceptance. As noted earlier, we have the power under MCR 7.216(A)(7), in our discretion and on terms we deem just, to “enter any judgment or order or grant further or different relief as the case may require.” And the subsequent act of the Secretary and the Board in rejecting the RMGN initiative petition in light of our “threshold determination” would he ministerial in nature because it would not require the exercise of judgment or discretion.
D. THRESHOLD DETERMINATIONS
(1) “AMENDMENT” VERSUS “GENERAL REVISION”
(a) CONSTITUTIONAL PROVISIONS
Const 1963, art 12, § 2, which pertains to amendment by petition and vote of electors, provides:
Amendments may be proposed to this constitution by petition of the registered electors of this state. Every petition shall include the full text of the proposed amendment, and be signed by registered electors of the state equal in number to at least 10 percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected. Such petitions shall be filed with the person authorized by law to receive the same at least 120 days before the election at which the proposed amendment is to be voted upon. Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law. The person authorized by law to receive such petition shall upon its receipt determine, as provided by law, the validity and sufficiency of the signatures on the petition, and make an official announcement thereof at least 60 days prior to the election at which the proposed amendment is to be voted upon.
Any amendment proposed by such petition shall be submitted, not less than 120 days after it was filed, to the electors at the next general election. Such proposed amendment, existing provisions of the constitution which would be altered or abrogated thereby, and the question as it shall appear on the ballot shall be published in full as provided by law. Copies of such publication shall be posted in each polling place and furnished to news media as provided by law.
The ballot to be used in such election shall contain a statement of the purpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of purpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment.
If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. If two or more amendments approved by the electors at the same election conflict, that amendment receiving the highest affirmative vote shall prevail.
In contrast, Const 1963, art 12, § 3, which pertains to general revision of the constitution, provides:
At the general election to be held in the year 1978, and in each 16th year thereafter and at such times as may be provided by law, the question of a general revision of the constitution shall be submitted to the electors of the state. If a majority of the electors voting on the question decide in favor of a convention for such purpose, at an election to be held not later than six months after the proposal was certified as approved, the electors of each representative district as then organized shall elect one delegate and the electors of each senatorial district as then organized shall elect one delegate at a partisan election. The delegates so elected shall convene at the seat of government on the first Tuesday in October next succeeding such election or at an earlier date if provided by law.
The convention shall choose its own officers, determine the rules of its proceedings and judge the qualifications, elections and returns of its members. To fill a vacancy in the office of any delegate, the governor shall appoint a qualified resident of the same district who shall be a member of the same party as the delegate vacating the office. The convention shall have power to appoint such officers, employees and assistants as it deems necessary and to fix their compensation; to provide for the printing and distribution of its documents, journals and proceedings; to explain and disseminate information about the proposed constitution and to complete the business of the convention in an orderly manner. Each delegate shall receive for his services compensation provided by law:
No proposed constitution or amendment adopted by such convention shall be submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all the delegates elected to and serving in the convention, with the names and vote of those voting entered in the journal. Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in the manner and at the time provided by such convention not less than 90 days after final adjournment of the convention. Upon the approval of such constitution or amendments by a majority of the qualified electors voting thereon the constitution or amendments shall take effect as provided by the convention.
(b) INTERPRETING THE CONSTITUTIONAL PROVISIONS
The difference in procedure established “for amendments and for revision undoubtedly was purposely made and cannot be ignored.” People v Bd of State Canvassers, 323 Mich 523, 528; 35 NW2d 669 (1949) (interpreting Const 1908, art 17, §§ 1 and 4). Therefore, whether RMGN’s initiative petition proposes an “amendment” or a “general revision” is of central significance: only a constitutional convention can make a “general revision” of the constitution. Stated differently, to allow the constitutional power of initiative to extend to a “general revision” of the constitution would be to ignore the framers’ intentional differentiation in terms and procedure. Consequently, determining whether the RMGN proposal is an “amendment” to, or a “general revision” of, the constitution is of primary importance.
In this regard, we note that counsel for RMGN took the position at oral argument that the initiative procedure under Const 1963, art 12, § 2, would encompass an amendment, or series of amendments, that would result in a wholly new constitution. This position of necessity means that the initiative procedure under Const 1963, art 12, § 2, is an alternative to the constitutional convention procedure in Const 1963, art 12, § 3. In practical effect, therefore, Const 1963, art 12, § 3, would become superfluous. See Nat’l Pride at Work, Inc v Governor, 481 Mich 56, 70; 748 NW2d 524 (2008) (stating that an interpretation that renders language meaningless must be avoided). We do not, therefore, consider Const 1963, art 12, § 2, and Const 1963, art 12, § 3, to be alternative provisions. Rather, they set out separate procedures for “amendments” as contrasted to “general revisions.”
Further, we typically discern the common understanding of constitutional text “by applying each term’s plain meaning at the time of ratification.” Natl Pride at Work, Inc, supra at 67-68. We may discern the “plain meaning” by reference to a dictionary. See, e.g., id. at 69.
Webster’s Third New International Dictionary (1965), p 68, defines an “amendment” as “the process of amending (as a motion, bill, act, or constitution).” To “amend” means “to alter (as a motion, bill, or law) formally by modification, deletion, or addition <[amend] the constitution>.” Id. A “revision” is “an act of revising.” Id. at 1944. To “revise” means “to make a new, amended, improved, or up-to-date version.” Id. While somewhat helpful to the analysis, the dictionary definitions of “amendment” and “revision” do not completely reveal the differentiation that was intended by the framers of the constitution from their use of the words “amendment” and “revision.”
However, decisions of our Supreme Court provide some clarity. For example, in Kelly v Laing, 259 Mich 212, 217-218; 242 NW 891 (1932), our Supreme Court considered the difference between a “revision” and an “amendment” in the context of a city charter. The question posed was “whether the changes of the nature here proposed may be made by amendment to the charter or only by revision.” Id. at 216. The distinction was of import because there were different statutory methods for amending the charter and for revising the charter. Id. at 216-217. The Supreme Court delineated the differences between an amendment and a revision, stating:
“Revision” and “amendment” have the common characteristics of working changes in the charter and are sometimes used inexactly, but there is an essential difference between them. Revision implies a re-examination of the whole law and a redraft without obligation to maintain the form, scheme, or structure of the old. As applied to fundamental law, such as a constitution or charter, it suggests a convention to examine the whole subject and to prepare and submit a new instrument, whether the desired changes from the old be few or many. Amendment implies continuance of the general plan and purport of the law, with corrections to accomplish its purpose. Basically, revision suggests fundamental change, while amendment is a correction of detail. [Id. at 217.]
The Supreme Court went on to state:
It is a specific instrument, the charter, as to which the change must be “within the lines” in order to constitute an amendment, not the general “subject of municipal government” or “local self-government.” The latter, however, is a proper and principal consideration on revision.
There is reason in the distinction made by the legislature. An amendment is usually proposed by persons interested in a specific change and little concerned with its effect upon other provisions of the charter. The machinery of revision is in line with our historical and traditional system of changing fundamental law by convention, which experience has shown best adapted to make necessary readjustments.
From the express implication arising from an advisory vote in proceedings for revision, from the difference in method providing for difference in character of changes, and from the proper meaning of the words used, we are of the opinion that the statute must be construed to require that a change in the form of government of a home-rule city may be made only by revision of the charter. [Id. at 221-222.]
Although Laing specifically interpreted statutes and a city charter, not the constitution, we find the decision to be of significant relevance here, primarily in that Laing stands for the proposition that there is a qualitative aspect to the meanings of the words “amendment” and “revision” when used to describe changes to “fundamental law” such as the constitution. In particular, differentiating between an amendment and a revision requires consideration of the substance and the effect of the proposed changes.
Pontiac School Dist v City of Pontiac, 262 Mich 338; 247 NW 474 (1933), supports this conclusion. In that case, the Michigan Supreme Court considered a challenge to an amendment of the constitution approved in the November 1932 general election. The amendment, which had been initiated by a petition of qualified electors, limited property tax assessments and purportedly altered or abrogated “some 16 or 18 other provisions of the Constitution----” Id. at 343. The plaintiff’s challenge in Pontiac School Dist included an argument similar to the challenge that plaintiffs make here. In addressing the argument, the Supreme Court stated:
The validity of the 1932 amendment is further challenged on the ground that it is not an amendment, but instead it is so far reaching in its modification and restriction of governmental powers that it amounts to a revision of the State Constitution, and, not having been accomplished in the manner provided in the Constitution for revision (article 17, § 4), it is wholly ineffective and invalid. We are fully convinced that the adoption of this new limitation upon the power of taxation, under the construction hereinafter placed upon it, does not so interfere with or modify the operation of governmental agencies as to render it other than an amendment by way of an addition to the Constitution. As an amendment it was legally adopted and became a part of our fundamental law. [Id. at 345.]
In Laing and Pontiac School Dist, our Supreme Court established the proper analysis for determining whether a proposal is a “general revision” of, or merely an “amendment” to, the constitution: the analysis should consider not only the quantitative nature of the proposed modification, but also the qualitative nature of the proposed modification. More specifically, the analysis does not turn solely on whether the proposal offers a wholly new constitution, but must take into account the degree to which the proposal interferes with, or modifies, the operation of government. The clear implication is that the greater the degree of interference with, or modification of, government, the more likely the proposal amounts to a “general revision.” Such a quantitative and qualitative analysis of proposed changes is consistent with the analysis other states have used when considering the distinction between an “amendment” and a “revision” for purposes of modifying a state constitution.
(c) OUT-OF-STATE DECISIONS
The primary out-of-state case that plaintiffs, RMGN, and the Attorney General discuss is McFadden v Jordan, 32 Cal 2d 330; 196 P2d 787 (1948). In McFadden, the petitioner sought a writ of mandamus against California’s secretary of state directing him not to place an initiative proposal, titled the “California Bill of Rights,” on the ballot. The issue before the California Supreme Court was whether the proposal was an attempted “revision” of the constitution, rather than an “amendment” to the constitution. This issue was critical because the California Constitution, as does our constitution, provides separate methods for its revision and its amendment. Id. at 332-334.
The McFadden court noted that in Livermore v Waite, 102 Cal 113; 36 P 424 (1894), the court had previously held that the establishment of a specific procedure for revising the constitution (by way of constitutional convention) precluded the idea that the framers of the constitu tion intended to afford a means of effecting a revision by way of the procedure established for amending the constitution (legislative proposal). At one point, the court stated:
“The very term ‘constitution’ implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” [McFadden, supra at 333, quoting Livermore, supra at 118-119.]
The McFadden court then went on to state:
It is thus clear that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose as outlined hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed “the measure”) now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention, and the writ sought by petitioner should issue. [McFadden, supra at 334.]
In determining whether the measure at issue was a revision or an amendment, the McFadden court summarized the content of the measure, stating:
To recapitulate, at least 15 of the 25 articles contained in our present Constitution would be either repealed in their entirety or substantially altered by the measure, a minimum of four (five, if the civic center provision be deemed new) new topics would be treated, and the func tions of both the legislative and judicial branches of our state government would be substantially curtailed. [Id. at 345.]
The court then stated:
Our review of the subjects covered by the measure and of its effect on the totality of our plan of government as now constituted does not purport to be exhaustive. It is amply sufficient, however, to demonstrate the wide and diverse range of subject matters proposed to be voted upon, and the revisional effect which it would necessarily have on our basic plan of government. The proposal is offered as a single amendment but it obviously is multifarious. It does not give the people an opportunity to express approval or disapproval severally as to each major change suggested; rather does it, apparently, have the purpose of aggregating for the measure the favorable votes from electors of many suasions who, wanting strongly enough any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder. Minorities favoring each proposition severally might, thus aggregated, adopt all. Such an appeal might well be proper in voting on a revised constitution, proposed under the safeguards provided for such a procedure, but it goes beyond the legitimate scope of a single amendatory article. [Id. at 345-346 (emphasis in original).]
The court specifically rejected the intervenors’ argument that “if any less than all sections of the Constitution are altered, and if any less than all old sections are discarded, the change is merely an amendment.” Id. at 347. The court stated:
We cannot accept such an arbitrary and strained minimization of [the] difference between amend and revise. The differentiation required is not merely between two words; more accurately it is between two procedures and between their respective fields of application. Each procedure, if we follow elementary principles of statutory construction, must be understood to have a substantial field of applica tion, not to be (as argued in intervenors’ Answering Memorandum) a mere alternative procedure in the same field. Each of the two words, then, must be understood to denote, respectively, not only a procedure but also a field of application appropriate to its procedure. The people of this state have spoken; they made it clear when they adopted article XVIII and made amendment relatively simple but provided the formidable bulwark of a constitutional convention as a protection against improvident or hasty (or any other) revision, that they understood that there was a real difference between amendment and revision. .. . Intervenors’ contention — that any change less than a total one is but amendatory — would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. Each situation involving the question of amendment, as contrasted with revision, of the Constitution must, we think, be resolved upon its own facts. A case might, conceivably, be presented where the question would be close and where there would he occasion to undertake to define with nicety the line of demarcation; but we have no such case or occasion here. [Id. at 347-348 (emphasis in original).]
The McFadden court ultimately concluded:
Applying the long established law to any tenable view of the facts which have been related, it is overwhelmingly certain that the measure now before us would constitute a revision of the Constitution rather than an amendment or “such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purposes for which it was framed.” Indeed, as has been shown in some detail, the effect of adoption of the measure proposed, rather than to “within the lines of the original instrument” constitute “an improvement or better carry out the purpose for which it was framed,” would be to substantially alter the purpose and to attain objectives clearly beyond the lines of the Constitution as now cast. [Id. at 349-350 (citations omitted.]
After McFadden, California courts adopted a two-pronged test, consisting of both a qualitative and a quantitative element, to determine whether a ballot initiative constituted an “amendment” versus a “revision” of the constitution. In Raven v Deukmejian, 52 Cal 3d 336, 342-343, 350-351; 801 P2d 1077; 276 Cal Rptr 326 (1990), the ballot initiative at issue sought to limit the rights of criminal defendants by mandating that California courts could not offer greater protections than those offered by the United States Supreme Court’s interpretation of the federal constitution.
The initiative passed the quantitative prong of the test because it did not delete any of the language in the California Constitution and affected only a single article. Id. at 351. However, the court held that the initiative failed the qualitative prong of the test and constituted a revision because it sought far-reaching changes to the structure of the California judiciary by transferring its interpretive power concerning criminal defendants to the United States Supreme Court. Id. at 352-353. The court reasoned that the ballot initiative “substantially alter[ed] the substance and integrity of the state Constitution ....” Id. at 352. Therefore, it was not proper subject matter for a ballot proposal. See also Brosnahan v Brown, 32 Cal 3d 236, 259-261; 651 P2d 274; 186 Cal Rptr 30 (1982) (examining both the quantitative and qualitative effects of a proposal to determine if it constituted an “amendment” to or “revision” of the California Constitution).
Moreover, McFadden and its California progeny have formed the basis for the decisions of several other states that have considered the “revision” versus “amendment” issue in the context of modifying a state constitution. For example, in Bess v Ulmer, 985 P2d 979, 987 (Alas, 1999), the Supreme Court of Alaska stated that it “must consider both the quantity and quality of the proposed constitutional changes” and that the “core determination is always the same: whether the changes are so significant as to create a need to consider the constitution as an organic whole.” The Supreme Court of Alaska relied, in part, on decisions of the California Supreme Court, which held that
an enactment which is so extensive in its provisions as to change directly the “substantial entirety” of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. [Amador Valley Joint Union High School Dist v State Bd of Equalization, 22 Cal 3d 208, 223; 583 P2d 1281; 149 Cal Rptr 239 (1978).]
Likewise, in Opinion of the Justices, 264 A2d 342, 346 (Del, 1970), the Supreme Court of Delaware considered an “amendment” to be “ ‘an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed’ ” and a “revision” to make “extensive alterations in the basic plan and substance of the existing document” and attain “objectives and purposes beyond the lines of the present Constitution.” (Citations omitted.) See also Martinez v Kulongoski, 220 Or App 142, 149-150; 185 P3d 498 (2008) (holding that “the distinction between a ‘revision’ and an ‘amendment’ ” “can properly involve quantitative and qualitative considerations” and that changes can be “so ‘fundamental’ and ‘far reaching’ as to effect a ‘revision’ ”) (citation omitted). The upshot of McFadden and these out-of-state decisions is that the distinction between a revision and an amendment depends on both the quantitative and the qualitative nature of the proposed changes to a constitution.
We agree with the reasoning of these decisions and find them to be consistent with Michigan law as stated in Laing and Pontiac School Dist. Consequently, we hold that in order to determine whether a proposal effects a “general revision” of the constitution, and is therefore not subject to the initiative process established for amending the constitution, the Court must consider both the quantitative nature and the qualitative nature of the proposed changes. More specifically, the determination depends on not only the number of proposed changes, or whether a wholly new constitution is being offered, but on the scope of the proposed changes and the degree to which those changes would interfere with, or modify, the operation of government.
(d) APPLICATION
We recognize that it is not possible to “define with nicety the line of demarcation” between an “amendment” and a “general revision.” McFadden, supra at 348. But, as in McFadden, “we have no such case or occasion here” that requires us to do so. Id. After evaluating the quantitative and the qualitative nature of the changes the RMGN initiative petition proposes, we hold that the proposal does not even approach the “field of application” for the amendment procedure. Id. at 347. Instead, the proposal plainly falls within the realm of a “general revision” of the constitution.
In particular, the RMGN initiative petition modifies §§ 1, 4, 7, and 9 of article 2; §§ 2, 3, 4, 5, 6, 7, 10,12,17, and 52 of article 4; §§ 2, 3, and 21 of article 5; and §§ 2, 3, 8, 11, 18,19, and 30 of article 6, and would add §§ 55 and 56 to article 4, § 31 to article 5, and § 31 to article 6.
Looked at quantitatively, the proposal affects four articles of the constitution, modifies 24 current sections of the constitution, and adds four new sections to the constitution. Clearly, the number of proposed changes and the proportion of current articles and sections affected by those proposed changes are very significant.
From a qualitative standpoint, the scope of the proposed changes is expansive. In the words of McFadden, the proposal “obviously is multifarious.” McFadden, supra at 346. The proposal touches on a wide and diverse range of subjects, from the number of executive departments, legislators, and judges to absentee ballots, jury lists, lobbying activities, public disclosure of records, retirement and pension benefits, legislative districting, and standing to bring lawsuits. Also, the impact of the proposal on the operation of the three branches of government, and the electoral process, is substantial. As just one example, the proposal strips the Legislature of any authority to propose and enact a legislative redistricting plan. It abrogates a portion of the judicial power by giving a new executive branch redistricting commission authority to conduct legislative redistricting. It then removes from the judicial branch the power of judicial review over the new commission’s actions. We agree with the Attorney General that the proposal affects the “foundation power” of government by “wresting from” the legislative branch and the judicial branch any authority over redistricting and consolidating that power in the executive branch, albeit in a new independent agency with plenary authority over redistricting.
We have thoroughly reviewed the number, scope, breadth, and impact of the petition’s changes to the fundamental governmental structure that our current constitution creates and allows. We are further cognizant of the abruptness with which some of the changes are to be made. For example, the reduction in the number of justices of the Supreme Court and the number of Court of Appeals judges is to be implemented on December 20,2008, and the reduction in the number of departments, boards, and commissions, and the establishment of the judicial performance commission, are to be made by April 2009. In addition, the proposal requires the convening of the new commission on legislative districting and the completion of the commission’s work within months of the effective date of the proposal.
We conclude, in light of these factors, that the modification of, and interference with, the operation of government is so far-reaching and so substantial that, considering both the quantitative and the qualitative nature of the proposed changes, the RMGN initiative petition effects a “general revision” of, and not simply an “amendment” to, the constitution. The substantial entirety of the petition alters the core, fundamental underpinnings of the constitution, amounting to a wholesale revision, not a mere amendment.
Therefore, we conclude that the power of initiative established by Const 1963, art 12, § 2, for amending the constitution does not extend to the RMGN initiative petition. In light of our “threshold determination” that the RMGN initiative petition does not meet the constitutional prerequisites for acceptance, the Board and the Secretary now have a clear legal duty to reject the petition. Consequently, we grant the relief sought in the complaint for mandamus and preclude the proposal from being placed on the ballot.
(2) MULTIPLE PURPOSES
In light of our conclusion that the RMGN initiative petition does not meet the constitutional prerequisites for acceptance because the proposal at issue amounts to a “general revision” of the constitution, we need not make a “threshold determination” about whether the proposal also fails to meet the constitutional prerequi sites for acceptance because it serves more than one purpose. Consequently, we offer no opinion on whether a proposal submitted under the initiative petition procedure established by Const 1963, art 12, § 2, must embrace only a single purpose or whether the RMGN initiative petition would violate such a requirement.
IV CONCLUSION
The RMGN initiative petition is overarching, of a reach and expanse never before seen in any constitutional initiative in Michigan’s long history. It proposes fundamentally to redesign the very framework of the Michigan Constitution of 1963, which emerged after an historic convention and subsequent voter approval. The issue is not whether the motivation for the proposed changes is altruistic or parochial. And the issue is not whether any one, or several, or all of the proposals in the RMGN initiative petition are warranted or make sound public policy. The issue is that our present constitution contains specific language requiring that any proposal of the magnitude and enormity of the RMGN initiative petition be submitted to a constitutional convention, and then to the citizens for approval. We may not blithely ignore or conveniently overlook Const 1963, art 12, § 3, requiring a constitutional convention for any “general revision.” The Michigan Constitution has transcended, and will continue to transcend, the lifetime of any single constituency, and it demands no less than a rigorous application of its prescribed methods for modification.
We grant the relief sought in the complaint for a writ of mandamus.
No costs, a public question being involved. We retain jurisdiction. This opinion is to have immediate effect, MCR 7.215(F)(2).
See Fontana v Lindholm, 276 Mich 361, 363; 267 NW 860 (1936) (stating that in Hamilton the Court held that “where a proposed amendment to the State Constitution was proper in form and contained the required number of signatures, it was the duty of the secretary of State to place it upon the ballot, that he may not question the constitutionality of said amendment, and that under such circumstances his duties were ministerial and not judicial”).
The “fatal defect” in Leininger was that the initiative petition was not in the proper “form”; in particular, the petition did “not contain the title of the proposed measure” as required by the constitution. Leininger, supra at 654.
There are some distinctions between Pontiac School Dist and the case here. Primarily, Pontiac School Dist was decided under the Michigan Constitution of 1908 and considered the issue of the propriety of the amendment after the amendment was approved in the general election. However, these distinctions are of no significant legal consequence. First, the 1908 Michigan Constitution is similar to the 1963 Michigan Constitution in that it also established separate methods for enacting "amendments” to, and a “general revision” of, the constitution. See Const 1908, art 17, §§ 1, 2, and 4. Second, the fact that the voters had already approved the amendment in the general election did not affect the Supreme Court’s analysis in Pontiac School Dist. As a result, our reliance on Pontiac School Dist is appropriate.
As the Attorney General notes in his brief as amicus curiae, the measure purported to add only one new article to the California Constitution, but contained 12 separate sections, 208 subsections, and more than 21,000 words. McFadden, supra at 334. In contrast, the California Constitution at the time contained 25 articles, composed of 347 sections and 55,000 words. Id. Moreover, the measure contained a clause making it controlling over any conflicting provision in the existing California Constitution. Id. at 346. | [
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] |
PER CURIAM.
This product liability action brought by the plaintiff, Maria Del Socorro Herrera Hernandez, as personal representative of the estate of Jose Francisco Martinez Villalon, deceased, arises from an October 5, 2002, rollover automobile accident in Tabasco, Mexico, involving a 1996 Ford Explorer. The decedent, plaintiffs husband, was fatally injured in the accident. The trial court denied defendant Ford Motor Company’s (Ford) motion to dismiss on the basis of forum non conveniens. Ford filed an interlocutory application for leave to appeal that order, and this Court, in lieu of granting the application, vacated the order and remanded for further proceedings. On remand, the trial court again denied Ford’s motion to dismiss on the basis of forum non conveniens. Ford now appeals by delayed leave granted, and we reverse.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff is a Mexican citizen, as was her husband. According to a police report, the accident at issue was a single-vehicle accident, in which the driver of the Explorer was driving above the speed limit without a driver’s license. Villalon was a passenger in the Explorer and died as a result of the accident. The Explorer was manufactured in a plant in Missouri and was allegedly designed in Michigan. Hernandez indicates that the Explorer was sold in Mexico and remains in Mexico, available for inspection.
Ford moved to dismiss Hernandez’s complaint on the basis of forum non conveniens. Hernandez and Ford each presented affidavits from experts on Mexican law, who differed on whether Mexico was an available alternative forum.
Hernandez’s expert, Leonel Pereznieto-Castro, submitted a declaration explaining that there were different evidentiary and legal standards in Mexico, long delays of at least two or three years, and no contingency fees. Pereznieto-Castro explained that the defendant’s domicile was usually the appropriate forum under Mexican law and that he believed the appropriate forum in this case was the United States, where the product was designed and manufactured. He further alleged that Mexican courts would refuse jurisdiction in a case against a defendant who was not domiciled in Mexico. Pereznieto-Castro averred that, after Garcia v Ford Motor Co and Torres v Ford Motor Co were dismissed by courts in the United States because of forum non conveniens, they were refiled in Mexico but dismissed by the Mexican courts for lack of jurisdiction, even though the Mexican courts were aware that Ford had consented to their jurisdiction. Pereznieto-Castro also explained that damages awards were not as good in Mexico as in the United States, that there was no strict liability under Mexican law, and that there was a higher standard for recovery in Mexico.
Ford’s expert, Roberto S. Genis Gonzales Mendez, averred that Mexico’s legal system is “equal to that of most developed countries,” and that it provides due process and free access. Genis Gonzales Mendez averred that Hernandez had several available options under Mexican law and that the case would be resolved in 16 months to two years.
Ford acknowledged that under Mexican law a foreign defendant must submit to the jurisdiction of both the Mexican court and a specific Mexican judge in order to consent to jurisdiction. Ford submitted an affidavit from Professor Jose Maria Serna de la Garza, who explained that, in Garcia, Ford was never given notice of the filing of the case in Mexico and, therefore, did not submit to the jurisdiction of a specific judge, and that if it had so submitted, the case would have been accepted. Serna de la Garza explained that Torres was dismissed because the basis of the accident — the design and manufacture— occurred in the United States. Torres was affirmed on appeal to the Guanajuato, Mexico, Supreme Court, but Serna de la Garza explained that the appellate decision offered no real guidance because it affirmed the dismissal of the plaintiffs case on the ground that the appeal was procedurally deficient, the decision did not include any analysis of the possible theories, and the court did not mention whether Ford submitted to the jurisdiction of the Mexican court and judge.
Ford stipulated that it would submit to the jurisdiction of the Mexican courts, abide by their rulings, and pay any final judgment. (Ford asserts on appeal that it also stipulated that it would make evidence available.)
The trial court ruled as follows:
Faced with two experts who don’t agree and one case which says that jurisdiction was not properly in Mexico, further being told that at best the parties can agree by contract, which there is none, or other agreement, which there was none prior to the filing of this lawsuit, this Court would find first and foremost that Mexico is not an alternative forum for this products case. But because I know we’re going to end up in the Court of Appeals, I will go through the Cray[ ] factors as well.
This Court does not find that there is a substantial inconvenience looking at the Cray factors. In fact, things are relatively equal.. ..
The Court would decline to dismiss, finding first that there is no alternative forum in Mexico for this product liability case, and secondly, finding that each — even if there were, the Cray factors considered that forum non conveniens does not apply.
The trial court entered an order on August 16, 2005, denying Ford’s motion.
Ford filed an application for leave to file an interlocutory appeal in this Court and a motion for a stay. This Court granted a stay and ordered the matter held in abeyance pending the Michigan Supreme Court’s decision in Radeljak v Daimler-Chrysler. In August 2006, after Radeljak was decided, this Court, in lieu of granting leave to appeal, vacated the trial court’s August 16, 2005, order, ordering the trial court to “provide an expanded analysis that addresses the competing [expert witness] arguments,” taking Juanes v Continental Tire North America, Inc, into consideration, and reconsid ering “all of the Cray factors in light of Radeljak v DaimlerChrysler[.] ”
On remand, the trial court briefly stated the facts of the underlying case and then considered a number of the Cray factors, again ruling that the case should not be dismissed under a forum non conveniens analysis. The trial court made no mention in its decision of Radeljak, Garcia, Torres, or Juanes, the cases that this Court had instructed the trial court to consider on remand.
II. MEXICO AS AN AVAILABLE FORUM
A. STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision whether to dismiss a case on the basis of forum non conveniens. An abuse of discretion occurs when the trial court’s “decision results in an outcome falling outside the principled range of outcomes.”
B. ANALYSIS
Forum non conveniens is a common-law doctrine defined as “the ‘discretionary power of court to decline jurisdiction when convenience of parties and ends of justice would be better served if action were brought and tried in another forum.’ ” As the Supreme Court of Tennessee explained in Zurich v Inman, the “doctrine of forum non conveniens presupposes the court has jurisdiction of both the parties and the subject-matter. The doctrine also presupposes there is at least one forum other than the forum chosen where the plaintiff may bring his cause of action[.]”
Here, the trial court indicated in its first order that application of the Cray factors was not required in this case because Mexico was not an available forum for Hernandez’s cause of action. This Court vacated the trial court’s order and remanded the case, explaining:
The trial court’s ruling that Mexico is not an alternate forum was too conclusory for this Court to sufficiently review, especially in light of the competing lengthy affidavits and arguments advanced by the parties. Therefore, the trial court is directed to provide an expanded analysis that addresses the competing arguments, and in doing so, shall consider Juanes v Continental Tire North America, Inc, 2005 WL 2347218 (SD 111, 2005) regarding the impact of the Garcia and Torres decisions on the issue at hand in this case.[ ]
On remand, the trial court did not specifically revisit whether Mexico was an alternate forum and did not consider or revisit the Juanes cases. However, in the context of addressing the Cray factors, the trial court did state that “[t]he Court was more persuaded by the assertion of the plaintiffs expert that even if Ford agrees to submit to the jurisdiction of the Mexican Court, the Mexican Courts are not obligated to take jurisdiction over the case.”
This mirrors the reasoning in the trial court’s initial order, in which it concluded that Mexico was not an available forum for Hernandez’s action, and explained that there were “two experts who don’t agree and one case which says that jurisdiction was not properly in Mexico .It appears that in both instances the trial court was referring to Hernandez’s one expert, Pereznieto-Castro, and his explanation that the Mexican courts’ dismissals of the Garcia and Torres cases was proof that Mexico did not have jurisdiction over an American corporation. Ford argues on appeal that Pereznieto-Castro’s opinions should not have been the basis for the trial court’s decision, and that other courts have sanctioned Pereznieto-Castro for asserting that Mexico is an unavailable forum in product liability cases involving accidents that occurred in Mexico, the same opinion he offered here.
The parties rely on numerous unpublished Mexican and United States federal district court cases for their respective positions, and Ford relies in part on Pereznieto-Castro’s deposition testimony in a different case. It is not clear what weight should be given to the Mexican court proceedings because it is difficult to surmise the reasons for the decisions, given the different procedures used by Mexican courts. None of the cited opinions is binding on this Court, and PereznietoCastro’s deposition testimony was taken as evidence in a different case. But because the reasoning of some of the cases and Pereznieto-Castro’s testimony on this issue may be instructive, some aspects of each will be discussed here.
The question of forum non conveniens, specifically whether Mexico is an available alternative forum, has been addressed as part of an international, multijurisdictional federal product liability action. Pereznieto-Castro has been involved in a number of the federal court cases, including the Garcia and Torres cases noted in this Court’s remand order, acting as a plaintiffs lawyer in Mexican proceedings, as a consultant, and as an expert witness in United States courts for the proposition that Mexico is not an available forum for a product liability case involving a foreign defendant.
In one of these actions, the United States Court of Appeals for the Seventh Circuit considered an appeal from a district court’s dismissal of a case on the basis of forum non conveniens. While the appeal in that case was pending, the plaintiffs filed an action in a district court in Morelos, Mexico, over which the Mexican district court determined it did not have jurisdiction. In considering the effect of the Mexican court’s dismissal, the Seventh Circuit commented that “a suspicious haze surrounds the plaintiffs’ actions in Mexico,” noting that the plaintiffs did not inform either Bridgestone/Firestone or Ford of the Mexican proceed ings, or inform the court in Morelos of the proceedings in the United States. Despite having “substantial misgivings” about the plaintiffs’ actions, the Seventh Circuit concluded that it lacked sufficient information to determine whether the plaintiffs’ actions were taken in good faith. Therefore, the Seventh Circuit remanded the case to the federal district court for a determination whether the plaintiffs acted in good faith, stating that if the plaintiffs did not act in good faith by manipulating the dismissal of their case in Mexico, the district court would be free to dismiss the case again.
On remand, the federal district court conducted an evidentiary hearing to explore the circumstances surrounding the decisions of the Morelos court. Relying on expert testimony presented at the evidentiary hearing, the federal district court found that “there are several types of jurisdictional competence” in Mexico, and that the form of competence at issue in the case before it was “territorial” competence, which is similar to personal jurisdiction in the United States. Territorial competence requires that a defendant be domiciled within the Mexican district court’s jurisdictional territory, but may be waived or extended when a defendant is outside the court’s territorial competence but there is nonetheless a point of contact within the forum. The federal district court concluded:
The evidence establishes that in filing the case in Morelos, Mexico, the attorneys for Plaintiffs acted with the clear purpose of having the case dismissed; and, in seeking that result, manipulated the process to insure that the dismissal would be based on a particular reason that was calculated to improve the chances of the dismissal being sustained on appeal. In addition, the Morelos court’s conclusion that it lacked territorial competency over the defendants and therefore could not try the matter pending before it was obtained in bad faith and therefore is not subject to recognition by courts in the United States.[ ]
The federal district court also commented on Pereznieto-Castro’s role in the case, noting that he acted as both the plaintiffs’ Mexican counsel and as their legal expert in the United States, which it characterized as “a double role in this attempted fraud on the court... .” The federal district court also observed that Pereznieto-Castro had accepted a contingency fee interest in the plaintiffs’ recovery and improperly submitted an affidavit to the federal court without disclosing that interest.
Hernandez maintains that there are no cases in which any plaintiff was able to successfully sue Ford in Mexico. Ford disagrees and identifies a case where it was successfully sued in Mexico, Gonzalez v Ford Motor Co, and includes a number of apparent pleadings filed against Ford in a Mexican federal civil court in that case. Other federal courts have found that Mexico is an available jurisdiction for tort actions of Mexican citizens.
Understanding any general rule in Mexican law is complicated by the fact that there are separate civil codes in all 31 Mexican states, as well as a federal code in Mexico, and that some of the foundational rules are different than in American courts. Despite those differences, however, Pereznieto-Castro acknowledged that under Mexican law, Mexican courts have jurisdiction of a tort action if both parties agree to submit to that jurisdiction, and that a foreign defendant could establish its submission under a variety of circumstances, including appearing in court or filing a response.
Ex parte proceedings are apparently legal in Mexico, and it appears that a plaintiff there can avoid jurisdiction by not following the Mexican courts’ specific procedures. In his deposition in Villanueva, PereznietoCastro stated that a Mexican lawyer does not act in bad faith by filing an action there and urging dismissal, explaining that it is legal and appropriate for a lawyer to go to a judge, ex parte, and urge dismissal, and that a lack of notice or an attempt to have a case dismissed was not considered bad faith under Mexican law. That view was rejected, however, by the court in Bridgestone III, which concluded that Pereznieto-Castro acted in bad faith by deliberately seeking to obtain dismissal of a Mexican case in an attempt to show that Mexico was not an available forum for the action.
Some of the Mexican cases suggest that Mexico’s procedural rules are very different from those of Michi gan courts and that it may be difficult for Hernandez to bring a cause of action there. But it appears from the Mexican and the United States federal court cases, and even from Pereznieto-Castro’s deposition testimony in Villanueva, that a plaintiff can successfully bring an action there by complying with applicable procedural rules, and one could reasonably presume that a lawyer who practices in Mexico would know those rules. As recognized in Bridgestone III, territorial jurisdiction in Mexico generally requires that a defendant be domiciled within the court’s jurisdictional territory, but such jurisdiction may be waived or extended when a defendant is outside the court’s territorial competence and there is a point of contact within the forum. This case arises from an accident in Mexico, and Ford has agreed to stipulate that it will submit to jurisdiction in Mexico, pay any judgment, and comply with any rules of the foreign jurisdiction. Accordingly, Mexico appears to be an available forum to hear this case.
Although not a focus of the parties’ arguments on appeal, this Court’s prior remand order in Hernandez I directed the trial court to “consider Juanes v Continental Tire North America, Inc, 2005 WL 2347218 (SD Ill, 2005) [,] regarding the impact of the Garcia and Torres decisions on the issue at hand in this case.” In Juanes, the United States District Court for the Southern District of Illinois dismissed the plaintiffs product liability action on the basis of forum non conveniens. In doing so, it rejected the plaintiffs reliance on the Garcia and Torres cases, in which Pereznieto-Castro participated, as supporting the plaintiffs proposition that Mexico is not an available forum in a product liability case, explaining that the cases were dismissed because of errors. In Garcia, the defendant “failed to meet the requirement of identifying, in a clear and precise way, the specific judge to whom they were submitting themselves.” Also, “[w]ith regard to the Torres case, defendants note that there is no indication in either of the trial and appellate court’s opinions that either court was made aware that the defendants in the case had submitted themselves to the jurisdiction of the Mexican courts.” The Garcia court concluded that the Mexican courts would have jurisdiction over a United States corporation not domiciled in Mexico “as long as it is done properly.”
Furthermore, Pereznieto-Castro stated in his deposition that the Mexican cases on which he relied for his opinion that Mexico would not have jurisdiction over a foreign defendant, including Garcia and Torres, lack precedential value, even in Mexico. Pereznieto-Castro explained that it is rare for a case to have precedential value in Mexico.
In sum, as other courts have concluded, the Garcia and Torres cases do not clearly establish that Mexico would not be an available forum to hear this case, especially where Ford is willing to stipulate jurisdiction in Mexico. Further, Hernandez’s remaining arguments against finding Mexico as an available forum are based principally on the opinions of Pereznieto-Castro, which have been criticized and rejected by other courts, and which appear to be based more on his own personal beliefs of what the law ought to be than what it actually is. As such, PereznietoCastro’s opinions do not provide a reliable basis for concluding that Mexico is not an available forum to hear this case. Conversely, it appears that Mexico is an available forum if Ford agrees to submit to jurisdiction in Mexico, which it has indicated it is willing to do.
For these reasons, the trial court abused its discretion by deciding that Mexico was not an available forum for this action by a Mexican citizen regarding injuries sustained in an accident in Mexico.
III. THE CRAY FACTORS AND DISMISSAL ON THE BASIS OF FORUM NON CONVENIENS
A. STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision whether to dismiss a case on the basis of forum non conveniens. A trial court’s conclusion after application of the Cray factors is an abuse of discretion when it is “outside the principled range of outcomes ... .”
B. THE CRAY FACTORS
This Court in Hernandez I instructed the trial court to consider on remand all the factors set out in Cray v Gen Motors Corp, in light of the Michigan Supreme Court’s decision in Radeljak.
In Cray, the Michigan Supreme Court determined that the doctrine of forum non conveniens should apply in Michigan and explained that the decision whether to accept jurisdiction required “[a] balancing out and weigh ing” of several factors. The Supreme Court explained that “courts are charged to consider the plaintiffs choice of forum and to weigh carefully the relative advantages and disadvantages of jurisdiction and the ease of and obstacles to a fair trial in this state.”
In Radeljak, the Michigan Supreme Court reconsidered and explained the application of the doctrine. As in this case, Radeljak involved a situation in which the plaintiffs decedent was killed in a car accident in a foreign country involving an automobile manufactured in the United States, except that the foreign jurisdiction in Radeljak was Croatia. The Michigan Supreme Court approved the use of the Cray factors, held that dismissal may be warranted if a plaintiff chooses a particular forum solely to take advantage of the more favorable law rather than because it was convenient, determined that a foreign plaintiffs choice of forum should be given less deference than would be accorded to a domestic plaintiff, and concluded that a court had discretion to refuse to hear a case even if the Michigan court was not “seriously inconvenient.”
Here, the trial court considered each of the Cray factors, but did not consider the effect of Radeljak. We will address each of the Cray factors along with the trial court’s findings.
1. THE PRIVATE INTEREST OF THE LITIGANT
(a) AVAILABILITY OF COMPULSORY PROCESS FOR ATTENDANCE OF UNWILLING WITNESSES AND THE COST OF OBTAINING ATTENDANCE OF WILLING WITNESSES
The trial court determined that witnesses are “sub ject to compulsory process for depositions under the Hague Convention,” regardless of the trial location, and the trial court was “not persuaded that this factor favors dismissal.” The trial court correctly recognized that Michigan courts do not have the power of compulsory process over Mexican witnesses and that defendant would have to use “letters rogatory” to obtain testimony from witnesses unwilling to travel. In fact, it appears that both parties would normally have to use letters rogatory, although Ford stipulated in this case that it would make its witnesses available voluntarily. “The use of letters rogatory is acknowledged to be a very time consuming and cumbersome process.” Each party, if trial were in the other forum, would incur the expense for the attendance of willing witnesses. The trial court found that this factor did not favor dismissal, and we agree that it would normally not favor either party. Because of Ford’s stipulation, however, that it would voluntarily provide its witnesses if the case were heard in Mexico, this factor slightly favors a Mexican forum.
(b) EASE OF ACCESS TO SOURCES OF PROOF
The trial court found that although the documents and proofs regarding the accident are located in Mexico, they are “likely to be small in number” compared to the technical documents in the United States regarding product design. Because both sets of documents would have to be translated, and the Mexican documents appear to be fewer, the trial court found that “[t]his factor disfavors dismissal.”
The accident, the witnesses to the accident, the Explorer, and any repair records for the Explorer, are all located in Mexico. Although Hernandez suggests that it is incomprehensible that Ford would consider Mexico more “convenient” than Michigan, it would be easier to obtain sources of proof regarding the accident and this specific vehicle in Mexico. And while the documentary evidence relating to design and manufacture is located in the United States, Ford has stipulated that it will make that evidence available. Michigan law authorizes subpoenas for document production when an action is pending in another country and, as was also true in Radeljak, Hernandez shows no similar provision under Mexican law. In addition, as the Seventh Circuit explained in Bridgestone II, the “U.S.-specific information” in this multi-jurisdictional litigation has already been established, and only the accident-specific evidence in individual cases needed to be collected. Therefore, it appears that the parties would have easier access to those proofs in Mexico, where the accident occurred, and that the trial court abused its discretion by ruling that this factor disfavored dismissal. This factor favors the Mexican forum.
(c) DISTANCE FROM THE SITUS OF THE ACCIDENT OR INCIDENT THAT GAVE RISE TO THE LITIGATION
The trial court noted in passing that “[t]he proofs regarding the accident, other than live testimony of any witnesses will involve accident reconstruction techniques and are not affected by the distance from the cite [sic] of the incident.” Michigan is far from Mexico, where the accident occurred, but is the alleged site of the decisions regarding the Explorer’s design. The parties have not established that either forum is favored under this subsection.
(d) ENFORCEABILITY OF ANY JUDGMENT OBTAINED
The trial court found that “ [a]ny judgment obtained in Michigan is enforceable against the defendant. The defendant asserts that it will voluntarily pay any Mexican judgment. Voluntary payment is an unenforceable gratuity and this factor favors keeping the case in the United States.” Ford stipulated that it would pay any nonappealable foreign judgment, and Hernandez does not explain why she could not obtain an enforceable court order of Ford’s stipulations. Moreover, in its original ruling, the trial court found that “[t]he judgments are enforceable regardless of in which country.” Neither the trial court nor Hernandez explains what has changed in this regard. This factor is neutral.
(e) POSSIBLE HARASSMENT OF EITHER PARTY
The trial court did not address this factor on remand. However, in its initial opinion, it stated, “I don’t see any harassment that’s here.” It appears that this factor is neutral.
(0 OTHER PRACTICAL PROBLEMS THAT CONTRIBUTE TO THE EASE, EXPENSE, AND EXPEDITION OF THE TRIAL
As a practical problem contributing to its decision, the trial court stated that the plaintiffs choice of counsel was also a factor to consider: “The Plaintiff has chosen Counsel from Oklahoma. Unfortunately, she did not pick one of our superior Michigan lawyers. However, her choice of Counsel will be [eviscerated] if the case is moved to Mexico.” The trial court gave no explanation why a Michigan forum is favored because of a foreign plaintiffs choice of an Oklahoma attorney to pursue a tort action that arose from the death of a Mexican citizen in an accident in Mexico. To the extent that the trial court was weighing Hernandez’s choice of forum under this factor, the Michigan Supreme Court stated in Radeljak that a trial court “should afford a foreign plaintiffs choice of forum less deference than it would accord a domestic plaintiff.”
The trial court also considered the problems with “language issues,” explaining that “both jurisdictions will be faced with letters rogatory and translation issues. It is no easier for our neighbors in Mexico to translate English to Spanish than it is for us to translate Spanish to English. The recent certifications of translator services in Michigan is not a unique issue in a global economy and Michigan is competent to manage it.” We do not believe that the additional considerations, choice of counsel, and language, favor either forum.
(g) POSSIBILITY OF VIEWING THE PREMISES
The trial court explained that “ [t]his factor favors dismissal. However, the frequency of actual visits to an accident site are rare, at least in the United States. It is much more likely that a ‘view’ will be done by simulation or digital recording.” The trier of fact in a Michigan court would not be able to view the scene of the accident. Regardless of what the parties decide to do in a trial, there remains the possibility that the accident site could be viewed in a Mexican forum, and there is no chance of a visit to the site if the trial is held in Michigan. This factor favors the Mexican forum.
On balance, four of the factors relating to the private interest of the litigant are neutral, and three factors favor a Mexican forum. Neither of the trial court’s additional considerations changed that balance, so the “private interest” factors favor dismissal in the Michigan forum.
2. MATTERS OF PUBLIC INTEREST
(a) ADMINISTRATIVE DIFFICULTIES THAT MAY ARISE IN AN AREA THAT MAY NOT BE PRESENT IN THE AREA OF ORIGIN
The trial court considered the “inability to interplead other parties” and rejected Ford’s claim that it could not interplead unidentified Mexican parties in a Michigan forum. The trial court concluded that “[t]he mere assertion that some other unknown, unnamed, or undescribed person might need to interplead does not create for this Court a basis for declining jurisdiction. This factor does not favor dismissal. Moreover, MCL 600.2957 allows consideration for the fault of all parties and non-parties regardless of whether they are present in the case in any case in Michigan.[ ] Therefore, consideration of fault of non-parties is not obviated by their inability to be interpled.”
In Radeljak, the Michigan Supreme Court explained that the American defendant there would not be able to implead Croatian people or entities that might be responsible for the plaintiffs injuries, and that the inability to implead was a factor that favored the Croatian forum. The same is true here, where Ford could not implead, for instance, the Explorer’s driver or mechanic, if the case were tried in Michigan. It is not fatal that Ford has not identified a specific individual. “ ‘[T]he problems posed by the inability to implead potential third-party defendants’ is ‘sufficient to sup port dismissal on grounds oí forum non conveniens.’ ” This factor favors a Mexican forum, and the trial court abused its discretion in stating otherwise.
(b) CONSIDERATION OF THE STATE LAW THAT MUST GOVERN THE CASE
The trial court did not consider this issue because it had not been briefed, stating:
This Court is aware there is a conflict as to which law applies to this case.
The defendant argues that Mexican products law is applicable and will cause incredible difficulty in its application. They ask the Court to consider Hall v General Motors, 229 Mich App, 580, at 55 [sic], 583 [sic] Northwest 2d, 866, a 1998 case.[ ]
The plaintiff asserts that Michigan law applies and asks the Court to look instead at Olmstead v Anderson, 428 Michigan [l].[ ]
Both cases apply an interesting analysis. Without rendering what this Court believes is a premature decision on conflict of laws, the Court would note that while Mexico has an interest in its citizens’ safety, Michigan has a deep and abiding interest in the mass production of automobiles and the protection of the stream of commerce arising from those automobiles.
Until and unless the issues of conflict of laws are fully briefed and argued, this Court cannot and will not determine that Mexico’s interests are superior to Michigan.
In Radeljak, the Michigan Supreme Court explained that “courts look to see which jurisdiction has a greater interest in the case” in order to determine whose laws apply. Here, Mexico has an interest because a Mexican citizen was killed in an accident on Mexican soil, in a vehicle purchased in Mexico. As the trial court suggested, Michigan citizens do have an interest in Ford’s business because it affects this state’s economy, but Michigan citizens were not directly involved in the fatal accident. While both forums have some interest in this proceeding, Mexico’s interest in having this case, involving redress to a Mexican citizen, “decided by its own rules and procedures” appears greater. Although the trial court declined to make a finding regarding choice of law, we believe it is more likely that Mexican law would apply, and that this factor favors Mexico as a forum.
(c) PEOPLE WHO ARE CONCERNED WITH THE PROCEEDING
In Radeljak, the Michigan Supreme Court balanced Croatia’s “local interest” in a “localized controversy” involving the fatal accident there and the interest of Michigan citizens in “products-liability lawsuits filed against Michigan manufacturers.” In Radeljak, the Michigan Supreme Court concluded that, for the same reasons it discussed with regard to factor 2(b), Croatia’s interest was greater than Michigan’s interest.
On appeal, Hernandez suggests that her “best opportunity for full compensation and justice rests in Michigan,” and that Mexico’s “primary interest in this case is having its citizens fully compensated for their losses.” These arguments work against the choice of Michigan as a forum because “ ‘dismissal may be warranted where a plaintiff chooses a particular forum, not because it is convenient, but solely in order to . . . take advantage of favorable law.’ ” As the Michigan Supreme Court explained in Radeljak, when a plaintiff chooses a forum in another country thousands of miles away from the accident, “there is no basis to presume that this faraway forum will be more convenient to the parties and to the court, and, thus, there is no basis to defer to the plaintiffs choice of forum.” The trial court did not specifically address this factor, but given that a Mexican citizen was killed in an accident in Mexico and that his Mexican widow is bringing this action, we conclude that this factor favors the Mexican forum.
3. REASONABLE PROMPTNESS IN RAISING THE PLEA OF FORUM NON CONVENIENS
The trial court did not address this factor, and Hernandez does not assert that Ford’s claim was untimely. Therefore, this factor is neutral.
4. CONCLUSION
All three of the “public interest” factors favor a Mexican forum, and the promptness factor is neutral. None of the factors, under either the private or the public interest considerations, favors a Michigan forum. Therefore, we conclude that a balancing and weighing of the Cray factors leads to the conclusion that Mexico is the more appropriate forum. Because Mexico is an available forum and the Cray factors favor Mexico, the trial court’s decision was not within the “principled range of outcomes,” and the trial court therefore abused its discretion in denying Ford’s motion to dismiss on the basis of forum non conveniens.
We reverse and remand for entry of an order dismissing Hernandez’s cause of action. We do not retain jurisdiction.
Garcia v Ford Motor Co, unpublished memorandum opinion of the United States District Court for the Eastern District of Missouri, issued July 7, 2003 (Docket No. 4:02CV001319 RWS).
Torres v Ford Motor Co, Civil Court in the District of Leon, Guanajuato, Mexico, Case No. 648/04-C (November 16, 2004), aff d on appeal in the Supreme Court, Guanajuato, Mexico (January 31, 2005).
Cray v Gen Motors Corp, 389 Mich 382, 396; 207 NW2d 393 (1973).
Radeljak v DaimlerChrysler Corp, 472 Mich 924, 924-925 (2005).
Radeljak v DaimlerChrysler Corp, 475 Mich 598; 719 NW2d 40 (2006).
Juanes v Continental Tire North America, Inc, unpublished memorandum opinion of the United States District Court for the Southern District of Illinois, issued September 26, 2005 (Docket No. 05-4015-JLF), 2005 WL 2347218.
Pereznieto-Castro gave expert testimony in Juanes, which involved one of several United States federal court dismissals based on forum non conveniens, with a “return jurisdiction” provision in the event the plaintiffs complaint was rejected by the Mexican court. Juanes is not developed by either party on appeal.
Radeljak v DaimlerChrysler Corp, 475 Mich 598, 603; 719 NW2d 40 (2006).
Id.
Id. at 604, quoting Black’s Law Dictionary (6th ed).
Zurich v Inman, 221 Tenn 393, 402; 426 SW2d 767 (1968).
Hernandez v Ford Motor Co, unpublished order of the Court of Appeals, issued August 2, 2006 (Docket No. 264910) (Hernandez I),
According to the caption on the deposition transcript, PereznietoCastro was deposed in In re Firestone/Ford Litigation (Villanueva), 44th District Court, Dallas County, Texas, Docket No. 04-06717-B (Master File No. 01-01-410). The deposition was taken on October 19, 2006.
In re Bridgestone/Firestone, Inc, 305 F Supp 2d 927, 932 (SD Ind, 2004) (Bridgestone I), vacated and remanded 420 F3d 702 (CA 7, 2005). In this case, the court held that Mexico is an available and adequate forum when the defendants agree to submit to Mexico’s jurisdiction. Among the long thread of cases included in Master File No. IP IP009374-C-B/S, MDL No. 1373 is Mendoza v Bridgestone/Firestone, Inc (Case No. IP 04-5797-C-B/S), in which Pereznieto-Castro also participated.
Decisions in most of these product liability cases are apparently unpublished. It is unclear how many of the cases directly involved Pereznieto-Castro, but he testified in a deposition in another case that he was involved in several cases that he identified by name (Donato, Villanueva, Abarca, Torres Ojeda, Gonzales, Lopez, and Garcia), and that the ideas behind the Mexican jurisdictional argument were his.
In re Bridgestone/Firestone, Inc, 420 F3d 702 (CA 7, 2005) (Bridgestone II).
Id. at 706.
Id.
Id. at 706-707.
In re Bridgestone/Firestone, Inc, 470 F Supp 2d 917, 920 (SD Ind, 2006) (Bridgestone III).
Id. at 921.
Id. at 920.
Id. at 928.
Id. A month later, the federal district court sanctioned PereznietoCastro, whom it labeled “the apparent mastermind behind these frauds on the U.S. and Mexican courts ....” In re Bridgestone/Firestone, Inc, 470 F Supp 2d 931, 933 (SD Ind, 2006) (Bridgestone IV), vacated De Manez v Bridgestone Firestone North American Tire, LLC, 533 F3d 578 (CA 7, 2008). The Seventh Circuit Court of Appeals vacated the district court’s sanction award because Pereznieto-Castro did not receive constitutionally adequate notice or an opportunity to be heard, and remanded the case to the district court for reconsideration.
See Gonzales v Chrysler Corp, 301 F3d 377, 380 n 3 (CA 5, 2002) (finding that Mexico was “an amenable forum because the defendants have agreed to submit to the jurisdiction of the Mexican courts”).
Bridgestone III, supra at 920-921.
Id. at 921.
Juanes, supra at *6.
Id. at *2.
Id.
Id.
Pereznieto-Castro claimed, however, that he would soon have written authority to support his opinion, because he had written a new version of his textbook on conflict of law, and had recommended that Mexican courts not take jurisdiction over foreign defendants.
Radeljak, supra at 603.
Id. at 606 (quotation marks and citations omitted).
Cray, supra at 396.
Radeljak, supra at 605-606.
Cray, supra at 395.
Id. at 396.
Radeljak, supra at 602-603.
Id. at 605-606, 612-618.
See the United States Department of State website: <http://travel.state.gov/law/info/ judicial/judicial_683.html> (accessed August 14, 2008).
Radeljak, supra at 607.
MCR 2.305; Radeljak, supra at 608.
Bridgestone II, supra at 705.
Radeljak, supra at 618.
MCL 600.2957 provides that each person’s liability should be allocated and that a percentage of fault can be assessed against a nonparty.
Radeljak, supra at 609.
Id., quoting Piper Aircraft Co v Reyno, 454 US 235, 259; 102 S Ct 252; 70 L Ed 2d 419 (1981).
In Hall v Gen Motors Corp, 229 Mich App 580, 585; 582 NW2d 866 (1998), this Court applied the “interest analysis” to choice of law in a case involving an accident in North Carolina involving a plaintiff who later moved to Michigan.
Olmstead v Anderson, 428 Mich 1, 3; 400 NW2d 292 (1987), involved an automobile accident in Wisconsin where Minnesota citizens were struck and killed by a Michigan resident.
Radeljak, supra at 610; see also Olmstead, supra at 5-6.
Radeljak, supra at 611.
Id.
Id.
Id. at 613, quoting Piper, supra at 249 n 15.
Radeljak, supra at 613-614.
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WILDER, J.
This case is before us on remand from the Michigan Supreme Court. People v Blackmon, 477 Mich 1125 (2007). This Court is instructed to decide
(1) whether the error that occurred [at defendant’s trial] is constitutional in nature; (2) whether the Court of Appeals, on direct appeal, therefore erred in failing to apply the “harmless beyond a reasonable doubt” standard that is applied to preserved federal constitutional error, Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967) [overruled in part on other grounds, as recognized in Sherley v Kentucky, 889 SW2d 794 (Ky, 1994)]; (3) if so, whether the errors committed at trial were harmless beyond a reasonable doubt; (4) whether defendant has shown good cause for failing to raise these issues on direct appeal; and (5) if so, whether defendant has shown actual prejudice and is therefore entitled to postappeal relief under MCR 6.508(D)(3). [Id.]
We conclude that the claimed errors at defendant’s trial were raoreconstitutional in nature.
i
In April 1998, in the area of 14748 Woodmont Street in the city of Detroit, defendant shot to death one person (the murder victim, Kenneth Tinsley) and shot two other persons, who survived (Michael Hearn, who was shot twice, and Tiffiney Smith, a nine-year-old girl who was riding her bicycle at the time of the assaults). All three victims were innocent bystanders. Defendant was 21 when he committed these felonies. The medical examiner, who autopsied Tinsley, found that Tinsley died from a single gunshot to his chest. The prosecutor charged defendant with first-degree premeditated murder, two counts of assault with intent to murder, and one count of possession of a firearm during the commission of a felony.
The prosecution argued that the crimes were gang-related and presented evidence that defendant was a member of the Schoolcraft Boys, a gang. Defendant denied that he was the shooter, presenting an alibi that he was at home at the time of the murder.
The prosecution argued that defendant’s crimes were committed because he was coming to the aid of fellow gang member, Jimmy Crost. Crost had visited Keynyatta Simons’s girlfriend, Nancy Ellis, who testified that Simons threatened to harm Crost and that Crost made a telephone call asking to be picked up because of some trouble. Hearn testified that defendant arrived, spoke to Crost, and then fired several shots, two of which hit Hearn as he stood near Simons.
At trial, two eyewitnesses (Hearn and Arthur Anderson) testified that they saw defendant commit the crimes. This testimony tended to establish the identity of the murderer. Although the credibility of their testimony was challenged through impeachment, a jury of defendant’s peers found him guilty of murder and the other charges. The trial court sentenced defendant to 40 to 60 years’ imprisonment for the second-degree murder conviction, 3 to 10 years’ imprisonment for each assault conviction, and 2 years’ imprisonment for the felony-firearm conviction.
Defendant appealed. This Court determined that, in light of the other testimony indicating that defendant was the murderer, the trial court abused its discretion in admitting the testimony about defendant’s gang membership, because the unfairly prejudicial nature of the testimony substantially outweighed any probative value (even though it supported the prosecution’s theory). People v Blackmon, unpublished opinion per curiam, issued September 14, 2001 (Docket No. 219350). This Court rejected the argument that the evidence concerning gang membership was relevant to show witness intimidation and motive.
This Court also concluded that presentation of the testimony indicating defendant’s membership in the Schoolcraft gang was prosecutorial misconduct. Notwithstanding its conclusions that the admission of gang-membership evidence and argument concerning that evidence was erroneous and prosecutorial misconduct, this Court concluded that the errors, which it called nonconstitutional, were harmless because the untainted evidence of defendant’s guilt was overwhelming. Therefore, this Court affirmed the convictions and sentences.
Defendant filed an application for leave to appeal in the Supreme Court, arguing that this Court, after finding prosecutorial misconduct and evidentiary error, should have reversed the convictions. The Supreme Court denied leave to appeal. 467 Mich 851 (2002).
Defendant sought habeas corpus relief in federal district court, arguing that the failure to reverse the convictions infringed federal constitutional rights. The federal district court agreed, concluding that the erroneous admission of gang-membership evidence, as well as that of the related prosecutorial misconduct, resulted in an unfair trial and a deprivation of defendant’s liberty without due process of law. The federal court concluded that the untainted evidence of defendant’s guilt was not overwhelming and held that defendant was entitled to be tried anew or released. Blackmon v Booker, 312 F Supp 2d 874 (ED Mich, 2004).
The United States Court of Appeals for the Sixth Circuit reversed the district court, determining that defendant had failed to present his federal constitutional claims to the state courts. Blackmon v Booker, 394 F3d 399, 400-401 (CA 6, 2004). On remand, the federal district court instructed defendant to exhaust his state-court remedies for the alleged federal-law violations.
In the circuit court, defendant filed a motion for relief from the judgment of conviction, presenting his federal claims that he was deprived of liberty without due process of law and arguing that the trial court’s errors were constitutional in nature. The trial court denied the motion. This Court denied defendant’s application for leave to appeal. People v Blackmon, unpublished order of the Court of Appeals, entered September 15, 2006 (Docket No. 268628).
The Supreme Court, in lieu of granting defendant’s application for leave to appeal, remanded the case to this Court. People v Blackmon, 477 Mich 1066 (2007), vacated 477 Mich 1125 (2007). The prosecutor filed a motion for reconsideration or clarification of the Supreme Court’s order, which the Supreme Court granted, vacating its earlier order and once again remanding the case to this Court for consideration as on leave granted. 477 Mich 1125 (2007). We now again affirm.
n
The first issue concerns whether the errors that occurred at defendant’s trial were constitutional in nature. Defendant argues that some of the errors were constitutional. We disagree.
Whether an error is constitutional in nature is an issue of law. We review issues of law de novo. People v Kaslowski, 239 Mich App 320, 323; 608 NW2d 539 (2000).
On direct appeal, this Court held that the following two errors occurred at trial: (1) erroneous admission of gang-affiliation testimony and (2) prosecutorial misconduct. Evidentiary errors are nonconstitutional. People v Herndon, 246 Mich App 371, 402 n 71; 633 NW2d 376 (2001). The key issue is whether prosecutorial misconduct is constitutional error. We hold that, in this case, it is not.
Some domestic decisions hold that prosecutorial misconduct is nonconstitutional error, even where the defendant alleges that the misconduct deprived the defendant of a fair trial and resulted in a deprivation of the defendant’s liberty without due process of law, see People v Jones, 468 Mich 345, 354; 662 NW2d 376 (2003) (improper questioning by the prosecutor is nonconstitutional error); People v Mezy, 453 Mich 269, 285-286; 551 NW2d 389 (1996) (plurality opinion of WEAVER, J.) (applying the nonconstitutional harmless-error standard to review a claim of prosecutorial misconduct), while others hold that it constitutes constitutional error, People v Abraham, 256 Mich App 265, 272, 276; 662 NW2d 836 (2003) (“Generally, a claim of prosecutorial misconduct is a constitutional issue____”), citing People v Pfaffle, 246 Mich App 282, 288; 632 NW2d 162 (2001); but cf. People v Taylor, 159 Mich App 468, 471; 406 NW2d 859 (1987) (holding that prosecutorial noncompliance with a discovery order is an error of nonconstitutional magnitude). Thus, domestic decisions do not settle this question. We must look to decisions from federal courts and the courts of other states.
Here, the prosecutorial misconduct consisted of (1) improper elicitation of gang-affiliation testimony, (2) improper argument to the jury concerning defendant’s alleged gang affiliation, (3) improper impeachment by the prosecution of one of its own witnesses, Tiffany Goggans, and (4) improperly questioning defendant about the credibility of witnesses. Regarding the first two type of prosecutorial misconduct, defendant cites no authority suggesting that improper elicitation of gang-affiliation testimony, or improper argument to the jury concerning gang affiliation, is an error of constitutional magnitude. Neither do we find any such authority. Therefore, we reject defendant’s argument.
Regarding the second two types of prosecutorial misconduct that the earlier panel of this Court found to have occurred, we conclude that these relate only to evidentiary matters. And evidentiary errors are non-constitutional. Herndon, supra at 402 n 71. Therefore, we reject defendant’s argument that the second two types of prosecutorial misconduct that occurred at triad, were errors of a constitutional nature.
We find no authority for a general constitutional right to exclude gang-affiliation evidence. And none of the errors implicated a specific constitutional right— only the general right to be free from a deprivation of one’s liberty without due process of law. (The instant case is not one where the prosecutor violated, for instance, the Fifth Amendment right against self-incrimination by commenting on defendant’s failure to testify, or one where the Sixth Amendment right to counsel was infringed.) The United States Supreme Court made this key distinction, between claims that the prosecutor violated a specific, enumerated constitutional right and claims of violation of the general due-process right to a fair trial. Donnelly v DeChristoforo, 416 US 637, 643; 94 S Ct 1868; 40 L Ed 2d 431 (1974). The former types of rights require that courts take special care to ensure that the prosecutor in no way infringes upon the specific constitutional right. Id. Although any error can potentially be argued to have deprived a defendant of his due-process fair-trial right, not every trial error is constitutional in nature. People v Toma, 462 Mich 281, 296; 613 NW2d 694 (2000) (not every trial error violates due process). Merely framing an issue as constitutional does not make it so. People v Weathersby, 204 Mich App 98, 113; 514 NW2d 493 (1994).
Defendant cites United States Supreme Court authority treating prosecutorial misconduct as federal constitutional error. See Chapman v California, 386 US 18-20, 25-26; 87 S Ct 824; 17 L Ed 2d 705 (1967) (the prosecutor’s comments violated the defendant’s Fifth Amendment right against self-incrimination), over ruled in part on other grounds, as recognized in Sherley v Kentucky, 889 SW2d 794 (Ky, 1994). But neither Chapman nor the other decisions cited by defendant definitively settle the question at issue here, because none of them stands for the proposition that any prosecutorial misconduct, by itself, is constitutional error. Once again, in Chapman, there was a specific constitutional right infringed, not the general constitutional right of due process. Accordingly, we conclude that the errors at issue here are nonconstitutional. Toma, supra at 296 (not every trial error violates due process). There is simply no general federal constitutional right to exclusion of gang-membership evidence.
In any event, defendant failed to preserve the errors as constitutional. Although defendant argued in his appellate brief on direct appeal that the prosecutorial misconduct violated his federal and state constitutional due-process rights to a fair trial, his reply brief expressly characterized the errors as nonconstitutional. Thus, defendant waived his argument that this Court should have treated the errors as constitutional. See People v Williams, 475 Mich 245, 261; 716 NW2d 208 (2006).
Even if defendant had not waived his argument that the errors were constitutional in nature, we would conclude that they were not constitutional. Where there is no allegation that prosecutorial misconduct violated a specific constitutional right, a court must determine whether the error so infected the trial with unfairness as to make the resulting conviction a denial of due process of law. Donnelly, supra at 643.
In Donnelly, a jury of DeChristoforo’s peers found him guilty of first-degree murder. DeChristoforo appealed to the Massachusetts Supreme Judicial Court, arguing, among other things, that certain remarks by the prosecutor during closing argument deprived him of his federal constitutional right to a fair trial. Donnelly, supra at 638. That court affirmed. It acknowledged that the prosecutor had made improper remarks, hut determined that they were not so prejudicial as to require reversal. Id. DeChristoforo then sought habeas corpus relief in federal district court, which denied relief, concluding that the prosecutor’s arguments were not so prejudicial as to deprive DeChristoforo of his right to a fair trial. The United States Court of Appeals for the First Circuit reversed. “The majority held that the prosecutor’s remarks deliberately conveyed the false impression that respondent had unsuccessfully sought to plead to a lesser charge and that this conduct was a denial of due process.” Id. at 639. The United States Supreme Court reversed the court of appeals, holding that the prosecutor’s remarks, considered in the context of the entire trial, were not so prejudicial as to violate DeChristoforo’s federal due-process rights. Id.
Donnelly does not state an explicit rule for determining when prosecutorial misconduct constitutes constitutional error and when it constitutes nonconstitutional error. But the Court did state:
This is not a case in which the State has denied a defendant the benefit of a specific provision of the Bill of Rights, such as the right to counsel, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), or in which the prosecutor’s remarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them. But here the claim is only that a prosecutor’s remark about respondent’s expectations at tried by itself so infected the trial with unfairness as to make the resulting conviction a denial of due process. [Donnelly, supra at 643 (emphasis added).]
In Darden v Wainwright, 477 US 168; 106 S Ct 2464; 91 L Ed 2d 144 (1986), Darden was found guilty by a jury of his peers in Florida state court of murder and other crimes. Under Florida’s capital-sentencing statute, the same jury heard further testimony and argument and made a nonbinding recommendation that the death penalty be imposed. The trial judge followed that recommendation, and the Florida Supreme Court affirmed the conviction and the sentence, rejecting the petitioner’s contention that the prosecution’s closing argument during the guilt phase of the trial rendered the trial fundamentally unfair and deprived the sentencing determination of the reliability required by the Eighth Amendment. “The prosecution’s argument included improper remarks that indicated that petitioner was on weekend furlough from an earlier prison sentence when the crime involved here occurred; implied that the death penalty would be the only guarantee against a future similar act; referred to petitioner as an ‘animal’; and reflected an emotional reaction to the case.” Id. at 169.
Darden sought habeas corpus relief in federal district court, raising the same claim (and one other not relevant here). The district court denied relief, and the United States Court of Appeals for the Eleventh Circuit ultimately affirmed. Before the United States Supreme Court, Darden argued “that the prosecution’s closing argument at the guilt-innocence stage of the trial rendered his conviction fundamentally unfair and deprived the sentencing determination of the reliability that the Eighth Amendment requires.” Darden, supra at 178-179. The Court sought to place the prosecutor’s remarks in context:
It is helpful as an initial matter to place these remarks in context. Closing argument came at the end of several days of trial. Because of a state procedural rule petitioner’s counsel had the opportunity to present the initial summation as well as a rebuttal to the prosecutors’ closing arguments. The prosecutors’ comments must be evaluated in light of the defense argument that preceded it, which blamed the Polk County Sheriffs Office for a lack of evidence, alluded to the death penalty, characterized the perpetrator of the crimes as an “animal,” and contained counsel’s personal opinion of the strength of the State’s evidence. [Id. at 179.]
Next, Darden stated:
The prosecutors then made their closing argument. That argument deserves the condemnation it has received from every court to review it, although no court has held that the argument rendered the trial unfair. Several comments attempted to place some of the blame for the crime on the Division of Corrections, because Darden was on weekend furlough from a prison sentence when the crime occurred. Some comments implied that the death penalty would be the only guarantee against a future similar act. Others incorporated the defense’s use of the word “animal.” Prosecutor McDaniel made several offensive comments reflecting an emotional reaction to the case. These comments undoubtedly were improper. But as both the District Court and the original panel of the Court of Appeals (whose opinion on this issue still stands) recognized, it “is not enough that the prosecutors’ remarks were undesirable or even universally condemned.” Darden v. Wainwright, 699 F.2d. at 1036. The relevant question is whether the prosecutors’ comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, the appropri ate standard of review for such a claim on writ of habeas corpus is “the narrow one of due process, and not the broad exercise of supervisory power.” Id., at 642, 94 S.Ct., at 1871. [Id. at 179-181 (emphasis added).]
The United States Supreme Court affirmed, holding that the prosecutor’s improper closing argument did not deprive the defendant of his federal right to a fair trial. Thus, although Darden does not expressly make the distinction between prosecutorial misconduct that constitutes constitutional error and misconduct that constitutes nonconstitutional error, it can be read to provide that the former requires that the prosecutor’s remarks so infected the trial with unfairness as to make the resulting conviction a deprivation of liberty without due process of law. Id.
In Burton v Renico, 391 F3d 764, 780-781 (CA 6, 2004), Burton had been convicted of first-degree murder in a Michigan state court, and his conviction was affirmed by this Court. Burton petitioned for habeas corpus relief in federal district court. The district court denied relief. The United States Court of Appeals for the Sixth Circuit affirmed, holding that this Court’s denial of Burton’s claim that his Sixth Amendment rights were violated by the trial court’s failure to grant his request for a continuance did not warrant habeas corpus relief. The court stated standards for determining whether prosecutorial misconduct causes a deprivation of liberty without due process of law:
Burton’s fifth procedurally defaulted claim is that the prosecutor engaged in misconduct by making statements undermining Burton’s presumption of innocence. Prosecutorial misconduct, in order to rise to the level of a constitutional due process violation, must be so severe that the defendant did not have a fair trial. As we explained in Bowling v. Parker, for prosecutorial misconduct to rise to the level of a constitutional violation cognizable on habeas review:
“the misconduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. Even if the prosecutor’s conduct was improper or even universally condemned, we can provide relief only if the statements were so flagrant as to render the entire trial fundamentally unfair. Once we find that a statement is improper, four factors are considered in determining whether the impropriety is flagrant: (1) the likelihood that the remarks would mislead the jury or prejudice the accused, (2) whether the remarks were isolated or extensive, (3) whether the remarks were deliberately or accidentally presented to the jury, and (4) whether other evidence against the defendant was substantial.”
344 F.3d 487, 512-13 (6th Cir. 2003) (internal quotation marks and citations omitted). [Id. (emphasis added).]
Thus, in order to constitute or cause a deprivation of liberty without due process under the federal constitution, the prosecutorial misconduct must be “so flagrant as to render the entire trial fundamentally unfair.” Id.
In Marshall v Hendricks, 307 F3d 36 (CA 3, 2002), Marshall was convicted in a New Jersey state court of hiring someone to murder his wife and was sentenced to death. After exhausting state-court appeals, he petitioned for habeas corpus relief in federal district court, asserting, among other claims, prosecutorial misconduct. The federal district court denied relief. The United States Court of Appeals for the Third Circuit held, in relevant part, that the prosecution’s repeated, deliberate misconduct did not render the trial unfair, that the prosecutorial misconduct constituted harmless error, and that prosecutorial misconduct did not violate Marshall’s right to call witnesses. The court stated:
Marshall urges that the New Jersey Supreme Court misapplied the United States Supreme Court’s precedent in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), by determining either that “no error” occurred, or that any error that did occur was harmless. App. Br. at 134. In Berger, the United States Supreme Court condemned the prosecutor’s argument as “undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury.” Id. at 85, 55 S.Ct. 629. The Court then enunciated the often-cited standard by which prosecutors must abide:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongfiil conviction as it is to use every legitimate means to bring about a just one.”
Id. at 88, 55 S.Ct. 629. But improper conduct is not, in itself, sufficient to constitute constitutional error, even when — as here — that conduct is alleged to be both deliberate and pervasive. Improper conduct only becomes constitutional error when the impact of the misconduct is to distract the trier of fact and thus raise doubts as to the fairness of the trial.
State courts have also acknowledged that, to be constitutional error, prosecutorial misconduct must so infect the trial with unfairness as to render the trial a deprivation of liberty without due process of law. People v Ledesma, 39 Cal 4th 641, 680; 140 P3d 657; 47 Cal Rptr 3d 326 (2006). Ledesma states:
A prosecutor’s conduct violates the Constitution only when it is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.... Conduct that does not rise to the level of a constitutional violation will constitute prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Id. at 680-681 (quotation marks and citations omitted; emphasis added).]
See also People v Jablonski, 37 Cal 4th 774, 835; 126 P3d 938; 38 Cal Rptr 3d 98 (2006).
Accordingly, in order for prosecutorial misconduct to be constitutional error, the misconduct must have so infected the trial with unfairness as to make the conviction a deprivation of liberty without due process of law. Donnelly, supra at 643. We conclude that none of the prosecutorial misconduct in this case infected the trial with such unfairness as to make the conviction a denial of due process. All of the prosecutorial misconduct, with the exception of the misconduct consisting of improper argument to the jury concerning defendant’s alleged gang affiliation, related to admission of evidence, and such evidentiary errors were supported by specific evidentiary rulings by the trial court. Although we are bound by the prior panel’s conclusion that there was prosecutorial misconduct, we conclude that the eviden tiary misconduct did not so infect the trial with unfairness as to deprive defendant of due process.
We also conclude that the misconduct consisting of improper argument to the jury did not so infect the trial with unfairness as to render the conviction a denial of due process. There was evidence that defendant was a member of the Schoolcraft gang and that these crimes (shooting of innocent bystanders) were committed because defendant was coming to the aid of fellow gang member Crost. Crost had visited Keynyatta Simons’s girlfriend, Nancy Ellis, who testified that Simons threatened to harm Crost and that Crost made a telephone call asking to be picked up because of some trouble. Hearn testified that defendant arrived, spoke to Crost, and then fired several shots, two of which hit Hearn as he stood near Simons. This evidence suggests (and the jury evidently concluded) that defendant intended to shoot and murder Simons (for threatening to harm Crost), but instead hit the victims. Thus, there was evidence that defendant’s crimes were gang-motivated, or at least gang-related. Accordingly, the prosecution’s misconduct, consisting of improper argument to the jury regarding defendant’s gang affiliation, did not rise to the level of a constitutional violation, because it did not so infect the trial with unfairness as to render the conviction a deprivation of liberty without due process of law.
Accordingly, this Court on direct appeal applied the proper standard of review — the preserved, nonconstitutional error standard. Under the preserved, nonconstitutional error standard, a defendant has the burden of establishing that it is more probable than not that the error in question “undermine[d] the reliability of the verdict,” thereby making the error “outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
hi
Because the prosecutorial misconduct was nonconstitutional in nature, this Court was not required to apply the “harmless beyond a reasonable doubt” standard on direct appeal. Accordingly, this issue, which the Supreme Court directed us to consider, is moot. Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 61; 744 NW2d 174 (2007).
Next, defendant argues that he has shown good cause and actual prejudice under MCR 6.508(D)(3) for relief from the judgment. Because we find that there was no constitutional error, we reject defendant’s arguments in this regard.
IV
The prosecutorial misconduct that occurred in defendant’s trial was nonconstitutional error. On direct appeal, this Court did not err in failing to apply the “harmless beyond a reasonable doubt” standard that is applied to preserved federal constitutional error.
Affirmed.
Markey, EJ., concurred.
Both of the assault victims must live the rest of their lives with bullets in their bodies.
Later, the first count was amended to second-degree murder.
The first three counts were also leveled against a codefendant, Jimmy Crost, a fellow gang member of defendant.
This evidence suggests that defendant may have intended to shoot and murder Simons (for threatening to harm Crost), but instead hit the victims.
It is undisputed that several witnesses were reluctant to testify against defendant.
It is not clear whether Chapman still would have held that the error was constitutional absent the involvement of the Fifth Amendment right against self-incrimination. Defendant also cites Darden v Wainwright, 477 US 168; 106 S Ct 2464; 91 L Ed 2d 144 (1986) (in evaluating a prosecutorialmisconduct claim, the Court asked whether the conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process; the Court did not indicate whether error was constitutional); Donnelly, supra at 640-645 (observing that the respondent’s “claims of constitutional error” focused on remarks made by the prosecutor and holding that the errors did not render the respondent’s trial so fundamentally unfair as to deny him due process); Berger v United States, 295 US 78; 55 S Ct 629; 79 L Ed 1314 (1935) (holding that a new trial was warranted where prejudice stemming from prosecutorial misconduct was highly probable; Court did not indicate whether error was constitutional). But none of these decisions holds that prosecutorial misconduct is always constitutional error.
We note that we only conduct a harmless error inquiry once we decide that constitutional error did occur. Thus, we first examine whether the misconduct so infected the trial as to render it unfair. See, e.g., Darden v. Wainwright, 477 U.S. 168, 182 n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
[Id. at 67 (emphasis added).]
We agree with the prosecutor that “[t]here is nothing improper about a prosecutor’s reliance on a state court’s evidentiary ruling, whether or not the ruling itself was correct. ” Frazier v Huffman, 343 F3d 780, 792 (CA 6, 2003) (emphasis added). | [
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Per Curiam.
The prosecution appeals by leave granted the trial court’s decision on reconsideration to grant defendants’ motions to quash. The trial court originally determined that all prior drunken driving convictions could properly be considered for purposes of enhancing a sentence under MCL 257.625. However, on reconsideration, the trial court concluded that it had erred in its earlier determination. And it agreed with defendants’ contention that only convictions that occurred after January 3,1997, which was 10 years before the date that amended MCL 257.625 became effective, could be considered for purposes of sentence enhancement. We conclude that, for offenses occurring after the effective date of amended MCL 257.625, the state may properly charge defendants on the basis of prior convictions that occurred more than 10 years before the date of the amendment. Therefore, we reverse the trial court’s decision to quash and remand for further proceedings.
I. BASIC FACTS AND PROCEDURAL HISTORY
A. PERKINS
Defendant James D. Perkins was arrested on March 23, 2007, for driving a vehicle while intoxicated and was charged with three offenses, including operating a motor vehicle while intoxicated (OWI), third offense, possession of marijuana, and driving with a suspended, denied, or revoked license, second or subsequent offense. Perkins had four prior alcohol-related convictions at the time of the hearing, including: (1) in Oakland County, operating while visibly impaired (September 21, 1990); (2) in Oakland County, operating under the influence (February 3, 1992); (3) in Genesee County, operating under the influence (May 19, 1993); and (4) in Genesee County, OWI (June 22, 2005).
B. LESAGE
Defendant Joseph W Lesage was charged with OWI, third offense, on May 21, 2007. Lesage had three prior alcohol-related convictions: (1) OWI (April 8,1975); (2) operating while impaired (June 8, 1991); and (3) impaired driving (July 16, 1991).
C. “HEIDI’S LAW”
Because both defendants had committed two or more prior alcohol-related offenses, they were subject to enhanced sentences under 2006 PA 564 — also known as “Heidi’s Law.” Before the trial court, defendants argued that Heidi’s Law was unconstitutional because it “(1)... violate[d] the rule prohibiting ex-post [sic] facto application of laws; (2) [was] not intended to include prior convictions that were time barred when the statute was passed based on statutory construction; and (3) [was] a violation of due process.” At the end of the hearing on defendants’ motion to quash, the trial court agreed with the prosecution and denied defendants’ motion to quash the information because the law was constitutional and did “not violate the rule against ex post facto laws[, and its] statutory construction demonstrate[d] the intent to include convictions that would have been barred under the 10 year statute of limitations.” The trial court did not rule on defendants’ due-process claim, finding that it was not yet ripe for decision.
Perkins and Lesage filed motions for reconsideration on September 5, 2007, and October 2, 2007, respectively. The trial court granted the motions, ruling that it had misinterpreted the relevant caselaw and committed “palpable error.” The trial court concluded that its earlier analysis concluding that application of the law in this case was not ex post facto was incorrect, and determined instead that Heidi’s Law “does not apply to events that have been neutralized by the prior statute of limitations period without the amendment being ex-post [sic] facto.” According to the trial court, “any conviction that occurred prior to January 3, 1997 is time barred and cannot be considered when Heidi’s Law is being applied to a case.. . . [B]y using this date as a guide, defendants whose claims were neutralized can still use that as a proper defense.” The prosecutor now appeals.
II. EX POST FACTO LAWS
A. STANDARD OF REVIEW
This Court reviews a trial court’s decision to grant or deny a motion for reconsideration for an abuse of discretion. We review issues of statutory construction and interpretation of constitutional provisions de novo.
B. VIOLATIONS OF THE EX POST FACTO DOCTRINE
In its August 20, 2007, ruling, the trial court denied defendants’ motions to quash the information, concluding that the law at issue was constitutional and that the Legislature had clearly intended “to include convictions that would have been barred under the 10 year statute of limitations” when it enacted Heidi’s Law. Furthermore, the court held that “no subsequent behavior... is being punished by application of Heidi’s Law,” and the law did not deny defendants any defense. The court also cited People v Russo, stating that that case directs courts to
look at... the status of the law at the time the act is committed.... At the time [the offenses in the instant case] were committed, the new statute ... stated that any prior conviction from any time in the Defendant’s criminal history could be utilized.
... So the key is the Defendant is presumed to know the law at the time he commits the act and that it’s a violation of law and that’s all certainly present here.
However, in granting defendants’ motion for reconsideration, the trial court observed that upon “[f]urther reading and analysis of People v Russo, . . . this Court was wrong when it held that any offense, no matter when it occurred, could be considered in determining if a defendant can be charged with a felony.” The court’s new conclusion was that Russo holds that if the Legislature amends a statute of limitations, the “amendment does not apply to events that have been neutralized by the prior statute of limitations period without the amendment being ex-post [sic] facto.” Therefore, the court determined that only convictions that occurred after January 3, 1997 — ten years before the effective date of Heidi’s Law — could be considered for prosecution, because that date “covers any claim that was time barred at the time the amendment was put in place. Thus, . .. defendants whose claims were neutralized can still use that as a proper defense.”
The defendant in Russo was charged in 1989 with committing criminal sexual conduct for alleged assaults that occurred between 1978 and 1982. The statutory period of limitations in effect at the time of the acts was six years, but before the running of the then-applicable limitations period, the Legislature amended the statute to extend the period in which charges could be filed from “ ‘within 6 years after the commission of the offense or by the alleged victim’s twenty-first birthday, whichever is later.’ ” Russo argued that the amendment was not applicable to him because it did “not specifically state that it applies to offenses arising before its effective date,” and also that it violated the ex post facto clauses of the Michigan and United States constitutions. The Michigan Supreme Court disagreed, holding that there was no conflict between application of the amendment to the defendant’s case and the rule against ex post facto laws:
Well-settled principles require the conclusion that applying the extended statute of limitations to the then-not-as-yet-time-barred alleged sexual assaults is not ex post facto. The sexual assaults were not innocent when committed, the quantum of punishment is unchanged, and the defendant has not been deprived of any defense available to him at the time the acts were committed. The statute of limitations defense was not available to the defendant at the time the assaults were committed or at the time the amendment became effective!, as the] Legislature amended the statute of limitations five months before the defendant had any substantive right to invoke its protection.[ ]
2006 PA 564 amended the governing statute in this case. Before the amendment, a defendant was guilty of a felony rather than a misdemeanor for violating the statute only if he or she had been convicted of two or more drunken driving offenses within the previous 10 years. The amendment eliminated the 10-year window and added language permitting the use of any previous conviction in enhanced sentencing, regardless of the time that elapsed between it and the defendant’s current offense. The statute now provides, in pertinent part, “If a person is convicted of violating subsection (1) or (8)” and “the violation occurs after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, the person is guilty of a felony . .. .” In granting defendants’ motions for reconsideration, the trial court stated that Russo permitted the Legislature to amend a statute of limitations in regard to prior events, but such amendments do not apply to events for which the period of limitations had already run.
The ex post facto clauses of both the state and federal constitutions prohibit legislative bodies from enacting laws that criminalize an act after it has been committed. In Callon, this Court noted that “[a]ll ex post facto laws share two elements: (1) they attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant.” In this case, Heidi’s Law certainly works to defendants’ disadvantage, but the amendment did not attach legal consequences to their prior offenses, which occurred before the amendment’s effective date. Rather, the amendment made the consequences of their current offenses, which occurred after January 3, 2007, more severe on the basis of defendants’ prior convictions.
Thus, the trial court was incorrect when it stated that “Heidi’s Law is not unconstitutional as written; but when asked to apply it in the manner that is in these cases, such application is ex-post [sic] facto and is therefore prohibited.” As in Callon, “the amended statute did not attach legal consequences to defendant’s prior impaired-driving conviction, but attached legal consequences to defendant’s future conduct. . . .” Further, the court treated the prior 10-year limit on consideration of prior convictions as a statutory period of limitations that had run. But this analysis ignores the fact that defendants are not being prosecuted for the prior offenses. They are being prosecuted for actions that took place after the amendment took effect. As in Callon, the change in the predicate offenses used to raise current conduct to the felony level does not constitute an ex post facto violation.
III. CONCLUSION
The trial court erred in concluding that defendants’ prosecution under the amendment to MCL 257.625 violates ex post facto protections.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
See 2006 PA 564.
MCL 257.625(l)(a).
MCL 333.7403(2)(d).
MCL 257.904(1).
The trial court did not specify the county in which Lesage was convicted of his prior offenses.
Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000).
People v Callon, 256 Mich App 312, 315; 662 NW2d 501 (2003).
People v Russo, 439 Mich 584; 487 NW2d 698 (1992).
Id. at 589.
Id. at 590, quoting MCL 767.24(2).
Id. at 592.
Id. at 593.
MCL 257.625(9)(c).
2006 PA 564.
MCL 257.625(9)(c).
US Const, art I, § 10, cl 1; Const 1963, art 1, § 10; Russo, supra at 592 (noting that it was well-settled that “ ‘any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.’ ”), quoting Dobbert v Florida, 432 US 282, 292-293; 97 S Ct 2290; 53 L Ed 2d 344 (1977).
Callon, supra at 318 (citations omitted).
Id.
Id. at 320-321; see also Gryger v Burke, 334 US 728, 732; 68 S Ct 1256; 92 L Ed 1683 (1948) (“Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive or subjects the petitioner to double jeopardy. The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.”). | [
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PER CURIAM.
In this income tax dispute, petitioner appeals as of right from the Tax Tribunal’s order granting summary disposition in favor of respondent. The Tax Tribunal determined that it lacked jurisdiction to consider petitioner’s tax assessment challenge because she failed to pay the uncontested portion of the assessment as required by MCL 205.22. We affirm.
I. FACTS
On March 14, 2006, respondent issued a final assessment of $13,536 to petitioner for income tax owed for tax year 2001. Subsequent penalty and interest charges increased the amount due to $17,881.60. Petitioner disputed that amount. However, petitioner acknowledged that she failed to report $36,080 of gambling income on her 2001 federal income tax return, which affected her Michigan income tax liability. On the basis of the admitted figure for gambling income, the respondent determined the undisputed portion of tax that petitioner was required to pay was $1,515.36.
Petitioner claimed that she was unable to pay the entire uncontested amount. Instead, she paid $500 towards the tax liability when she filed her petition for review of the final assessment with the Tax Tribunal. Petitioner then proposed to make five installment payments to pay the uncontested amount by January 20, 2007. Respondent moved for summary disposition under MCR 2.116(C)(4), arguing that the Tax Tribunal lacked jurisdiction over the matter because petitioner failed to pay the undisputed portion of the tax under MCL 205.22. The Tax Tribunal agreed with respondent and entered an order granting summary disposition in respondent’s favor. Petitioner now appeals.
II. STANDARD OF REVIEW
“This Court’s review of Tax Tribunal decisions in nonproperty tax cases is limited to determining whether the decision is authorized by law and whether any factual findings are supported by competent, material, and substantial evidence on the whole record.” J C Penney Co, Inc v Dep’t of Treasury, 171 Mich App 30, 37; 429 NW2d 631 (1988); see also Const 1963, art 6, § 28. Issues involving the interpretation and application of statutes are reviewed de novo as questions of law. Danse Corp v City of Madison Hts, 466 Mich 175, 178; 644 NW2d 721 (2002).
In reviewing a motion under MCR 2.116(C)(4), it is proper to consider the pleadings and any affidavits or other documentary evidence submitted by the parties to determine if there is a genuine issue of material fact. Cork v Applebee’s of Michigan, Inc, 239 Mich App 311, 315; 608 NW2d 62 (2000); see also MCR 2.116(G)(5). Jurisdictional questions are reviewed de novo, but this Court “ ‘must determine whether the affidavits, together with the pleadings, depositions, admissions, and documentary evidence, demonstrate ... [a lack of] subject matter jurisdiction.’ ” L & L Wine & Liquor Corp v Liquor Control Comm, 274 Mich App 354, 356; 733 NW2d 107 (2007), quoting CC Mid West, Inc v McDougall, 470 Mich 878 (2004) (alteration by the L & L Court).
III. ANALYSIS
At the time pertinent to the proceedings in this case, MCL 205.22 provided, in relevant part:
(1) A taxpayer aggrieved by an assessment, decision, or order of the department may appeal the contested portion of the assessment, decision, or order to the tax tribunal within 35 days, or to the court of claims within 90 days after the assessment, decision, or order. The uncontested portion of an assessment, order, or decision shall be paid as a prerequisite to appeal....
(2) An appeal under this section shall be perfected as provided under the tax tribunal act, Act No. 186 of the Public Acts of 1973, as amended, being sections 205.701 to 205.779 of the Michigan Compiled Laws, and rules promulgated under that act for the tax tribunal, or chapter 64 of the revised judicature act of 1961, Act No. 236 of the Public Acts of 1961, as amended, being sections 600.6401 to 600.6475 of the Michigan Compiled Laws, and rules adopted under that chapter for the court of claims. In an appeal to the court of claims, the appellant shall first pay the tax, including any applicable penalties and interest, under protest and claim a refund as part of the appeal.
(4) The assessment, decision, or order of the department, if not appealed in accordance with this section, is final and is not reviewable in any court by mandamus, appeal, or other method of direct or collateral attack. [Emphasis added.]
Section 35 of the Tax Tribunal Act, MCL 205.735, addresses the manner for perfecting an appeal. At the time petitioner’s petition was filed in April 2006, the statute provided, in relevant part:
In all other matters, the jurisdiction of the tribunal is invoked by a party in interest, as petitioner, filing a written petition within 30 days after the final decision, ruling, determination, or order that the petitioner seeks to review, or within 35 days if the appeal is pursuant to section 22(1) of 1941 PA 122, MCL 205.22. [MCL 205.735(2).]
“The primary rule governing the interpretation of a statute is to discern and give effect to the Legislature’s intent through reasonable construction in consideration of the purpose of the statute and the object sought to be accomplished.” Tyson Foods, Inc v Dep’t of Treasury, 276 Mich App 678, 684; 741 NW2d 579 (2007). In construing legislative intent, a court begins by examining the statutory language and, if the statutory language is clear, it must be enforced as plainly written. Id.
The statutory language in this case is not ambiguous. MCL 205.22(1) clearly requires that “[t]he uncontested portion of an assessment... shall be paid as a prerequisite to appeal.” Although the words “shall,” “prerequisite,” and “paid” are not defined, undefined statutory words and phrases are construed according to their common and approved usage, unless such a construction would be inconsistent with the Legislature’s manifest intent. ADVO-Systems, Inc v Dep’t of Treasury, 186 Mich App 419, 424; 465 NW2d 349 (1990). The word “prerequisite” is defined as “required beforehand” and “something prerequisite; precondition.” Random House Webster’s College Dictionary (1997), p 1029. Among the definitions of the word “pay” is “to discharge or settle (a debt, obligation, etc.), as by transferring money or goods, or by doing something” and “to discharge a debt or obligation.” Id. at 957. The word “shall” generally indicates mandatory conduct. Costa v Community Emergency Med Services, Inc, 475 Mich 403, 409; 716 NW2d 236 (2006).
We must also consider the contextual setting of the words and phrases in the statute. Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999). Examined in context, the statutory phrase “uncontested portion of an assessment, order, or decision shall be paid as a prerequisite to appeal” is susceptible to only one reasonable interpretation. An aggrieved taxpayer must actually discharge the uncontested tax debt, by full payment, before appealing the contested portion of the tax assessment. The aggrieved taxpayer must pay the uncontested debt and file the written petition required in MCL 205.735 within 35 days to invoke the Tax Tribunal’s jurisdiction. A partial payment does not satisfy the statute, even when coupled with an allegation in the petition that the taxpayer lacks the financial resources to pay the full debt. Nor is a promise to pay the uncontested balance after the expiration of the 35 days sufficient to satisfy the statute. The Tax Tribunal does not have authority to grant a delayed appeal. Curis Big Boy v Dep’t of Treasury, 206 Mich App 139, 142; 520 NW2d 369 (1994).
Additionally, because MCL 205.22 is not ambiguous, we may not apply an “absurd results” rule in contravention of the clear terms of the statute. Cairns v East Lansing, 275 Mich App 102, 118; 738 NW2d 246 (2007). “It is not within the authority of the judiciary ‘to redetermine the Legislature’s choice or to indepen dently assess what would be most fair or just or best public policy.’ ” Lash v Traverse City, 479 Mich 180, 197; 735 NW2d 628 (2007), quoting Hanson v Mecosta Co Rd Comm’rs, 465 Mich 492, 504; 638 NW2d 396 (2002).
Petitioner also argues that MCL 205.22 is unconstitutional because it deprives her of due process by not affording her an opportunity to invoke the Tax Tribunal’s jurisdiction without paying the entire uncontested portion of the tax assessment. However, petitioner did not raise this issue before the Tax Tribunal; therefore, it is not properly preserved and we need not address it. Higgins Lake Prop Owners Ass’n v Gerrish Twp, 255 Mich App 83, 117; 662 NW2d 387 (2003).
Affirmed.
MCL 205.22 was amended by 2007 PA 194, effective December 21, 2007. Although the amendment does not apply to this case, we note that there were no substantive changes to the provisions applicable to this case.
MCL 205.735 was amended by 2006 PA 174, effective May 30, 2006. As now set forth in subsection 3, the amended statute provides, in part:
In all other matters, the jurisdiction of the tribunal is invoked by a party in interest, as petitioner, filing a written petition within 35 days after the final decision, ruling, determination, or order that the petitioner seeks to review. | [
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KELLY, J.
This wrongful-death, medical-malpractice case primarily concerns whether plaintiffs notice of intent required under MCL 600.2912b was sufficient with respect to defendants, Ghaus Malik, M.D., Susan E. Oshnock, EA.-C., Henry Ford Health System, doing business as Neurosurgery Associates-Oakland (Henry Ford), Ashok Prasad, M.D., and William Beaumont Hospital (Beaumont). Plaintiff, as personal representative of the estate of her deceased husband, William Miller (Miller), appeals as of right the trial court’s order granting summary disposition in favor of defendants under MCR 2.116(C)(7) (claim barred by statute of limitations). We affirm.
I. BASIC PACTS AND PROCEEDINGS
Malik, a neurosurgeon, performed a cervical diskectomy on Miller at Beaumont. Miller experienced numbness in his legs after the surgery. Miller was transferred to Beaumont’s rehabilitation unit for physical and occupational therapy, and he was required to wear TED hose, but he removed them because they were too small and uncomfortable. Pneumatic compression devices were ordered (presumably to promote blood flow in the legs), but they were never applied. Beaumont physicians and nurses did not record any reports of calf tenderness by Miller or other signs or symptoms of deep vein thrombosis (DVT). Miller was discharged, and his discharge orders did not include DVT prophylaxis or information about symptoms.
Miller continued to experience numbness after going home, and he fell on one occasion. His legs became red, shiny, and swollen, and plaintiff repeatedly called Malik’s office. However, Oshnock, a certified physician’s assistant, allegedly told her that Miller did not need to see Malik. Plaintiff called Prasad, Miller’s internist and primary care provider, and Prasad scheduled an appointment for four days later, on September 19, 2003. Prasad initially diagnosed cellulitis over the telephone and prescribed antibiotics. On the day of his appointment, Miller went to Prasad’s office, where he went into cardiac arrest. Miller was taken to Botsford General Hospital, where he was pronounced dead upon arrival. An autopsy revealed that Miller died of a pulmonary embolism from a DVT in his leg.
Pursuant to MCL 600.2912b, plaintiff mailed a notice of intent to file a claim to each defendant on April 22, 2005. As required by § 2912b(4), plaintiff included in her notice of intent a statement of proximate causation, which stated the following: “Had the standard of care been complied with in a timely and appropriate manner, William Miller’s deep vein thrombosis would have been avoided and/or timely diagnosed and treated, thereby avoiding his demise from pulmonary embolism.” After 182 days, in October 2005, plaintiff alleged a wrongful-death claim based on medical malpractice against defendants and filed affidavits of merit. All defendants moved for summary disposition, challenging the proximate causation statements in the notice of intent and affidavits of merit. The trial court concluded that the notice of intent and affidavits of merit were insufficient, and because the statutory period of limitations had expired, it granted defendants summary disposition.
II. WAIVER
Plaintiff argues that defendants waived their right to challenge the notice of intent pursuant to MCR 2.111(F)(2) because they failed to plead this defense in their affirmative defenses, as required by subsection F(3) of that rule. We disagree.
All defendants, except Beaumont, specifically raised the statute of limitations and the inadequacy of the notice of intent in their affirmative defenses, citing MCL 600.2912b. As our Supreme Court stated in Burton v Reed City Hosp Corp, 471 Mich 745, 755; 691 NW2d 424 (2005), where almost identical affirmative defenses were pleaded, “[s]uch a direct assertion of these defenses by defendants can by no means be considered a waiver.”
Beaumont asserted in its affirmative defenses that plaintiffs claim was barred by the applicable statute of limitations, without referring to MCL 600.2912b or otherwise specifically challenging the notice of intent. However, a defendant is not obligated to challenge the sufficiency of a plaintiffs notice of intent pursuant to MCL 600.2912b until the plaintiff has raised the issue of the tolling provision of MCL 600.5856, which necessarily occurs after the defendant has raised a statute of limitations defense in its first responsive pleading. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 70 n 7; 642 NW2d 663 (2002) (Roberts I). Therefore, Beaumont did not waive its right to challenge the notice of intent. Although a party may waive a statute of limitations defense by its course of action and conduct, plaintiff has identified no acts or conduct on the part of any defendant that amount to waiver. Attorney General ex rel Dep’t of Environmental Quality v Bulk Petroleum Corp, 276 Mich App 654, 665; 741 NW2d 857 (2007).
III. SUFFICIENCY OF THE NOTICE OF INTENT
Plaintiff next contends that the trial court erred by ruling that the proximate causation statement in her notice of intent was deficient and, because the period of limitations had expired, the deficiency in the notice of intent could not be cured and summary disposition was appropriate for defendants. We disagree.
This Court reviews de novo a motion for summary disposition pursuant to MCR 2.116(C)(7). Trentadue v Buckler Lawn Sprinkler Co, 479 Mich 378, 386; 738 NW2d 664 (2007). In the absence of disputed facts, we also review de novo whether the applicable statute of limitations bars a cause of action. Id. This Court considers “all affidavits, pleadings, and other documentary evidence submitted by the parties and construe[s] the pleadings in [the] plaintiffs favor.” Doe v Roman Catholic Archbishop of the Archdiocese of Detroit, 264 Mich App 632, 638; 692 NW2d 398 (2004). Furthermore, we accept as true the complaint’s contents unless contradicted by documentary evidence provided by the movant. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).
The period of limitations in a malpractice action is two years. MCL 600.5805(6). In order to initiate the lawsuit, the claimant must provide the defendant with a notice of intent to file suit at least 182 days before filing the complaint. MCL 600.2912b(l). If a claim would become barred under the statute of limitations during this 182-day waiting period after the notice of intent is served, then the statute is tolled for the “number of days remaining in the applicable notice period after the date notice is given.” MCL 600.5856(c). However, if it is determined that the notice of intent is deficient, then the notice of intent will not function to toll the statute, Roberts I, supra at 64, because, in effect, the claimant has not commenced the action, Boodt v Borgess Med Ctr, 481 Mich 558, 563; 751 NW2d 44 (2008) (Boodt II).
In the present matter, Miller passed away on September 19, 2003. Accordingly, the two-year period of limitations would expire on September 19, 2005. See MCL 600.5805(6). Plaintiff filed her notice of intent on April 22, 2005, and her complaint and affidavits of merit 182 days later, on October 21, 2005. Given these facts, plaintiffs notice of intent tolled the statute of limitations and her claim was properly before the court, presuming that her notice of intent was sufficient. See Roberts I, supra at 64; MCL 600.5856(c).
However, in order for a notice of intent to be sufficient, it must contain all the information required under § 2912b(4). See Boodt II, supra at 562-563. That provision provides the following:
The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.
(f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim. [Emphasis added.]
A claimant must present this information “with that degree of specificity which will put the potential defendants on notice as to the nature of the claim against them.” Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 701; 684 NW2d 711 (2004) (Roberts II). Although some of the information supplied in the notice of intent will evolve as discovery proceeds, a claimant is “required to make good-faith averments that provide details that are responsive to the information sought by the statute and that are as particularized as is consistent with the early notice stage of the proceedings.” Id. (emphasis in original). With respect to causation, it is not sufficient to state that the defendants’ negligence caused the alleged harm. Id. at 699 n 16. Rather, the claimant must describe the manner in which the ac tions or lack thereof caused the complained-of injury. Boodt II, supra at 560. Further, no portion of the notice of intent may be read in isolation; rather, the notice of intent must be read as a whole. Boodt v Borgess Med Ctr, 272 Mich App 621, 628, 630; 728 NW2d 471 (2006) (Boodt I), rev’d in part on other grounds 481 Mich 558 (2008).
In the instant case, the standard of care portion of the notice of intent (paragraph II) identified the following duties with respect to all defendants: obtain patient histories and perform a physical examination, recognize the signs and symptoms of DVT and the need to immediately examine a patient exhibiting these signs and symptoms, obtain Doppler studies of the lower extremities, immediately refer a patient with the signs and symptoms of DVT to the emergency room, and “any and all acts of negligence identified through additional discovery.” With respect to Malik, Oshnock, Henry Ford, and Beaumont, plaintiff averred that they had the following additional duties: order appropriate DVT prophylaxes, ensure the proper use of anti-embolitic stockings or pneumatic compression devices, assess lower extremities, order laboratory studies, and find alternative DVT prophylaxes when the appropriate size stockings are not available. Plaintiff asserted that Malik and Oshnock also had a duty to be readily available to, and communicate with, other medical personnel. Regarding Henry Ford and Beaumont, plaintiff averred that they had the following additional duties: select, employ, train, and monitor their employees, agents, and staff, ensure that appropriate policies and procedures are adopted and enforced, and ensure proper communication among medical personnel. Plaintiff averred that Beaumont also had a duty to inform the appropriate personnel when an alternative method of DVT prophylaxis is necessary. In claiming that defendants had breached the applicable standard of practice or care, plaintiff stated, “There was a failure to do all things listed in paragraph II above.” With respect to the actions that defendants should have taken to comply with the standard of practice or care, plaintiff simply stated, “See paragraph II above.” Regarding the manner in which the alleged breach was a proximate cause of the claimed injury, plaintiff asserted, “Had the standard of care been complied with in a timely and appropriate manner, William Miller’s deep vein thrombosis would have been avoided and/or timely diagnosed and treated, thereby avoiding his demise from pulmonary embolism.”
Although plaintiff stated that the DVT and Miller’s subsequent death would have been avoided if the standard of care had been followed, nowhere did she state how any defendant failed to prevent, diagnose, or treat the DVT or pulmonary embolism. The reader is left to wonder whether plaintiff is alleging that the DVT could have been prevented, whether a diagnosis of the DVT could have been made in time to avoid the pulmonary embolism, or whether the pulmonary embolism could have been diagnosed or treated in time to avoid Miller’s death. See Roberts II, supra at 699. Plaintiff identified many duties in the standard of care portion of the notice of intent, but she failed to describe the manner in which any failure on the part of any defendant to perform any of these duties caused Miller’s DVT, pulmonary embolism, or death. For example, plaintiff asserted that all defendants had a duty to recognize the signs and symptoms of DVT. However, she never identified these signs or symptoms or stated which, if any, Miller exhibited or how recognition of them would have prevented Miller’s pulmonary embolism or death. Similarly, plaintiff never indicated how a history, physical examination, Doppler study, DVT prophylaxis, laboratory study, or alternative prophylaxes to TED hose would have prevented Miller’s DVT, pulmonary embolism, or death. The notice of intent provides that all defendants had a duty to refer a patient with signs and symptoms of DVT to the emergency room, but plaintiff failed to state what treatment might have been initiated or how emergency room personnel would have prevented Miller’s pulmonary embolism or death. With respect to Henry Ford and Beaumont, plaintiff asserted that they had several duties regarding policies and procedures, but she failed to identify how any breach of these duties caused Miller’s DVT, pulmonary embolism, or death. Reading the notice of intent as a whole and taking into account the duties listed in the standard of care portion, the reader cannot discern the manner in which any defendant’s conduct or omission caused Miller’s DVT, pulmonary embolism, or death.
While recognizing that the notice of intent is served in the early stage of proceedings, we do not believe that plaintiff provided good-faith averments of details that are responsive or particularized. See Roberts II, supra at 701. The notice of intent merely stated that Miller’s DVT would have been avoided or treated and his death would have been avoided if defendants had complied with the standard of care. It is not sufficient “to merely state that defendants’ alleged negligence caused an injury”; plaintiff must provide a statement regarding “the manner in which it is alleged that the breach was a proximate cause of the injury.” Id. at 699 n 16 (emphasis in original). Plaintiff asserts that medical professionals understand that an untreated DVT can break loose, become an embolus, and cause respiratory arrest. In the context of the statement of the standard of care, our Supreme Court has stated that there may be situations, such as the amputation of the wrong limb, the extraction of the wrong tooth, or the failure to remove a surgical instrument from a patient’s body, where the burden required for the statement would be minimal. Id. at 694 n 12. However, plaintiff never stated how any defendant’s failure to perform any duty caused Miller’s DVT, pulmonary embolism, or death, and causation is not obvious to a casual observer. Because plaintiff failed to connect Miller’s DVT, pulmonary embolism, or death to the conduct of any defendant in any meaningful way, the notice of intent failed to sufficiently put defendants on notice of the nature of the claim. Id. at 701. Accordingly, the trial court properly determined that the notice of intent was insufficient.
Plaintiff asserts that defendants answered her complaint, which contained the same factual allegations and breaches of the standard of care as the notice of intent, and filed affidavits of meritorious defense, which demonstrates that they understood the claims against them. However, a notice of intent requires more than merely apprising the potential defendant of the “nature and gravamen” of the plaintiffs allegations; it requires a statement of the “ ‘manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.’ ” Boodt II, supra at 560-561, quoting MCL 600.2912b(4)(e).
Plaintiff contends that the appropriate remedy for an invalid notice of intent is dismissal without prejudice. Our Supreme Court recently decided Kirkaldy v Rim, 478 Mich 581, 585-586; 734 NW2d 201 (2007), in which it held that a complaint and affidavit of merit toll the limitations period pursuant to MCL 600.5856(a) until the affidavit is determined to be invalid in a subsequent proceeding. However, an insufficient notice of intent does not toll the limitations period. Boodt II, supra at 561. Rather, if the notice of intent is lacking, the plaintiff is not yet authorized to file a complaint and affidavit of merit, and the limitations period cannot be tolled. Id. at 562-563. We therefore affirm the trial court’s grant of summary disposition.
m SUFFICIENCY OF THE AFFIDAVITS OF MERIT
Plaintiff also asserts that the trial court erred by ruling that the proximate causation statements in her affidavits of merit were deficient and by granting summary disposition. Given our conclusion that summary disposition was properly granted regarding the notice of intent and that plaintiff was not yet authorized to file the complaint and affidavits of merit, we need not address this issue.
Affirmed.
WHITBECK, EJ., concurred.
TED is an abbreviation for thromboembolic deterrent, and TED hose are tightly fitting stockings designed to promote circulation.
MCR 2.111(F)(2) provides:
A party against whom a cause of action has been asserted by complaint, cross-claim, counterclaim, or third-party claim must assert in a responsive pleading the defenses the party has against the claim. A defense not asserted in the responsive pleading or by motion as provided by these rules is waived ....
MCR 2.11(F)(3) pertains specifically to affirmative defenses and states:
Affirmative defenses must be stated in a party’s responsive pleading.... Under a separate and distinct heading, a party must state facts constituting
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Pursuant to the opinion issued concurrently with this order, this case is remanded for further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 28 days of the clerk’s certification of this order, and they shall be given priority on remand until they are concluded. | [
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Per Curiam.
Defendant Spence Brothers, Inc., appeals by leave granted the trial court’s order denying its motion to set aside a default in favor of plaintiffs James Shawl (Shawl) and Mary Shawl. On appeal, Spence Brothers argues that the trial court erred as a matter of law by applying the wrong standard in denying its motion to set aside the default. In addition, Spence Brothers argues that the trial court abused its discretion in refusing to set aside the default. We reverse and remand.
I. BASIC FACTS AND PROCEDURAL HISTORY
Boice Bird and Sons, Inc., employed Shawl as a journeyman painter. Spence Brothers hired Boice as a subcontractor to perform painting work on the Saginaw County Event Center, and in late June 2003, Boice assigned Shawl to work at the Event Center. While painting the lobby area of the Event Center, Shawl was injured. Specifically, according to Shawl, while he was painting a wall in the lobby, a temporary electrical panel fell toward him and struck him in the back. As a result, according to Shawl, three screws projecting from the rear of the panel punctured his “lumbar spine.”
After the accident, Shawl sued Spence Brothers and J. Ranck Electric, Inc. Shawl’s suit alleged that Ranck Electric was negligent by failing to brace safely or attach the electrical panel to the wall and that Spence Brothers, as the general contractor, was negligent for failing to ensure that reasonable steps were taken to guard against the danger that Ranck Electric created.
After being served with Shawl’s complaint, Spence Brothers forwarded the complaint to its insurer, Amerisure. Amerisure began processing the complaint, but while examining coverage issues as part of the process, Amerisure determined that it needed more time to answer the complaint. Accordingly, in early July 2006, Annette Rigdins, an Amerisure senior claims representative, contacted Shawl’s attorney and asked for a 30-day extension. Shawl’s attorney agreed to the extension and asked Rigdins to “put it in writing.” Rigdins then wrote a letter to Shawl’s attorney that stated that the new due date for answering the complaint was August 8, 2006.
Spence Brothers failed to answer Shawl’s complaint by August 8, 2006. As a result, the trial court entered a default against Spence Brothers on August 16, 2006, pursuant to MCR 2.603(A)(1).
Spence Brothers moved to set aside the default under MCR 2.603(D)(1). Spence Brothers argued that the 30-day extension was from the original due date of the answer, July 14, 2006, which, according to Spence Brothers, would have allowed it to answer through the end of the day on August 14, 2006. However, no answer was filed on that date either. Therefore, the trial court denied the motion. Spence Brothers moved for reconsideration, but the trial court also denied that motion. Spence Brothers now appeals.
II. “GOOD FAITH” VERSUS “GOOD CAUSE”
A. STANDARD OF REVIEW
Spence Brothers argues that the trial court did not apply the MCR 2.603(D)(1) criteria when it considered whether to set aside the default. More specifically, Spence Brothers argues that the trial court erroneously refused to analyze the matter to determine whether there was good cause and a meritorious defense as MCR 2.603(D)(1) requires.
With respect to our review of this argument, Spence Brothers relies on Colista v Thomas to support its assertion that we should apply a de novo standard of review to determine whether the trial court used the appropriate standard under MCR 2.603(D)(1). In Colista, this Court stated that the “interpretation and application of the court rules, like the interpretation of statutes, is a question of law that is reviewed de novo on appeal.” However, because the trial court here ultimately explained its use of MCR 2.603(D)(1) and, thus, applied the proper standard, the interpretation and application of the rule are not truly at issue in this case. Therefore, the proper standard of review is the abuse of discretion standard, which applies to review of a trial court’s decision on a motion to set aside a default. We also review a trial court’s decision to deny a motion for reconsideration for an abuse of discretion.
B. THE WORDING OF THE COURT RULE
MCR 2.603(D)(1), which governs motions to set aside a default, provides: “A motion to set aside a default or a default judgment, except when grounded on lack of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.” (Emphasis added.)
C. THE TRIAL COURT’S DECISION
Spence Brothers argues that the trial court applied the wrong legal standard under MCR 2.603(D)(1) be cause the trial court never spoke explicitly about “good cause” or a “meritorious defense” at the original hearing on the motion to set aside the default. However, the trial court later provided a fuller explanation in considering Spence Brothers’ motion to reconsider the motion to set aside the default.
In response to Spence Brothers’ concern that the wrong standard was used, the trial court stated:
Going back to [MCR] 2.603(D)(1), I was not very artful in saying that I thought that because of this exchange of letters there was not good cause shown. That’s what I meant to — I think that’s the proper standard and not whether they acted in good faith.
In addition, the trial court stated:
[Ilt’s important to the rights of your clients that they have a full hearing, and certainly my words were not as required by the court rules and they were entitled to get a little more definitive response I think as to why I ruled to deny the motion.
The trial court then went on to deny Spence Brothers’ motion to reconsider and stated:
I’ll deny the motion for reconsideration under MCR 2.603(D)(1) on the basis that the good cause has not been shown. That’s primarily why I think this case is — is easy, and I think plaintiffs’ authorities correctly cite that the public policy of the state is in favor of not setting aside defaults indeed without not only good cause but a meritorious defense.
In this regard, the trial court essentially sought to remedy any ambiguity in its prior ruling to deny the motion to set aside the default. In addition, the trial court explained that the reference to “good faith” from the original hearing was merely to say that Shawl did not act in bad faith. In this regard, the trial court stated:
In this case, quite the contrary. [Shawl] requested the letter [from the insurance adjuster] to foreclose any possibility of confusion or mistake [in regard to the 30-day extension].
Thus, the trial court was simply stating that Shawl acted in good faith and that Spence Brothers did not show good cause to set aside the default.
Even though the trial court may have originally referred to a good faith standard, ultimately the trial court used the correct standard under MCR 2.603(D)(1). Accordingly, Spence Brothers has not shown an abuse of discretion with regard to this issue because the trial court, in fact, used the proper standard.
III. APPLYING MCR 2.603(D)(1)
A. STANDARD OF REVIEW
Spence Brothers argues that it demonstrated good cause based on procedural irregularities and genuine confusion in the proceedings below. Spence Brothers further argues that it has a meritorious defense that will extinguish liability and that a lesser showing of good cause will suffice where a meritorious defense is strong.
As noted, we review a trial court’s decision on a motion to set aside a default for an abuse of discretion. Indeed, a trial court’s decision in this regard should only be reversed on appeal when there is a clear abuse of that discretion. “An abuse of discretion involves far more than a difference injudicial opinion.” “Rather, an abuse of discretion occurs only when the trial court’s decision is outside the range of reasonable and principled outcomes.” “Moreover, although the law favors the determination of claims on the merits, it has also been said that the policy of this state is generally against setting aside defaults and default judgments that have been properly entered.”
B. GOOD CAUSE
“Good cause” can be shown by: “ ‘ “ (1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand.” ’ ” Spence Brothers argues that the complex nature of this matter ultimately led to the confusion between it and Amerisure that caused the answer to be late, which constituted good cause. We disagree.
(1) PROCEDURAL DEFECT OR IRREGULARITY
There was, and is, considerable dispute about the exact date the answer to the complaint was due. Under MCR 2.108(A)(1), Spence Brothers had 21 days to answer after being served with the complaint on June 23, 2006. However, as noted earlier, Shawl’s attorney and Amerisure agreed on a 30-day extension, which Shawl contends ran from the date on which Amerisure asked for the extension. Shawl points to the written confirmation stating that the new deadline was August 8,2006. Despite the letter, Spence Brothers contends that the new deadline was intended to be 30 days from the original deadline to answer, which was July 14, 2006.
We conclude that the letter stating the August 8, 2006, date unequivocally set forth the intended expiration of the agreed-upon extension. However, even assuming that the 30-day extension ran from the original deadline to answer, Spence Brothers failed to answer in the time allowed. Thirty days from July 14, 2006, was Sunday, August 13, 2006. Because August 13 was a Sunday, Spence Brothers actually would have had until the end of Monday, August 14, 2006, to answer the complaint. Regardless, Spence Brothers still failed to file an answer within the time allocated. Thus, we conclude that no procedural defect or irregularity was present to support a finding of good cause.
(2) REASONABLE EXCUSE
We next turn to the second factor of the “good cause” test: “ ‘ “a reasonable excuse for failure to comply with the requirements which created the default.” ’ ” With respect to this factor, we initially conclude that Spence Brothers’ default was clearly caused by Amerisure’s negligence in failing to answer the complaint. There is no dispute that Amerisure’s agent knew of, and indeed established, the August 8, 2006, deadline. And, again, even assuming there was some confusion that may have led Amerisure to believe it had until August 14 to file the answer, it has offered no reasonable excuse to explain its ultimate failure to respond. The salient question, however, is whether Amerisure’s negligence should be imputed to Spence Brothers.
(a) CONFLICTING CASES
There is, we believe, a conflict in the pre-November 1990 published opinions of this Court regarding whether to impute the negligence of an insurance company to a defendant.
(i) WALTERS
We start with Walters v Arenac Circuit Judge. There, Justice O’Hara, joined by Justices DETHMERS and KELLY, stated, “It is well settled that the negligence of either the attorney or the litigant is not normally grounds for setting aside a default regularly entered.” However, in Walters, neither the attorney nor the plaintiff was negligent; rather, the culpable negligence was that of the insurer. Under the circumstances, Justice O’HARA reasoned that the insurer’s negligence should not be imputed to the insured, a doctor, and that the circuit court did not abuse its discretion in setting aside the default. More specifically, Justice O’HARA explained:
The doctor averred he did what any reasonably prudent person would do under the circumstances when he was personally served. He turned the “papers” over to his insurance company. We do not consider him obligated to call daily to see whether the insurer did what it had contracted and accepted a premium to do. We find no neglect on his part disclosed by the record before us.
The culpable negligence was that of the involved insurer. The question is then whether that negligence of the unnamed defendant liability insurer, should be imputed to and be conclusive upon the defendant doctor.
We recognize that in the realities of this situation, irrespective of the named defendant, the real defendant, to the extent of the policy provisions, was the insurer. This conclusion is record-supported by the fact that when counsel received the term calendar showing the named doctor-defendant to be in default, he communicated not with the doctor but with his insurer. It seems an inescapable conclusion that the insurer directed the communicating counsel to appear and answer.
On the merits of the main case, the doctor-defendant may have been blameless beyond question. He may have been in legal dimension answerable. The question is not before us. It has not been meritoriously litigated under our system of determination of that issue.
The trend of our jurisprudence is toward meritorious determination of issues. The complexities of our economic system placed the named defendant-doctor in the position of having no way to reach trial on the merits because his insurer was negligent. The money judgment, if such resulted, might have to be paid in full or in part by the insurer. Absent doing violence to the rules of the jurisprudential game, we think the doctor should be entitled to his day in court.
By this holding we would not be understood to dilute the well-settled law of this jurisdiction that the neglect of a personally served defendant, nor that of his counsel, may not ordinarily be grounds for setting aside a default regularly entered. [ ]
Accordingly, the lead opinion in Walters affirmed the trial court’s decision to set aside the default judgment.
However, as noted, only Justices O’HARA, ÜETHMERS, and KELLY took part in the lead opinion. Justices BLACK and SMITH concurred in the result without providing any supporting rationale, and Chief Justice KAVANAGH, joined by Justices SOURIS and ADAMS, dissented. Thus, Walters created no binding precedent because no majority of justices signed the lead opinion.
Hi) FREEMAN
In Freeman v Remley, the defendant in an automobile accident suit sent the summons and complaint to his insurer. The defendant heard nothing else about the case until he received notice of the default judgment. The insurer denied all knowledge of the claim. In denying the defendant’s motion to set aside the default judgment, the trial court noted that the defendant “might have had a good and valid defense,” but found it significant that “there was at least notice to an agent of the insurer, that the pleadings were properly served and that an additional letter was sent notifying the insurer of commencement of suit.”
On appeal, the defendant contended that the case at hand was “virtually indistinguishable” from Walters However, without directly commenting on the defendant’s argument, and while noting that Justice O’Hara’s opinion in Walters “capture[d] the current trend in the law,” the Freeman panel concluded without further elucidation that, “given the facts and circumstances here presented,” the trial court did not clearly abuse its discretion in refusing to set aside the default judgment.
From what we can ascertain from its brief analysis, the Freeman panel essentially chose to employ a strict adherence to the abuse of discretion standard of review rather than follow the rationale provided by the lead opinion in Walters. We further note that, in concluding that the trial court did not abuse its discretion, the Freeman panel cited Hartman v Roberts-Walby Enterprises, Inc. However, the significance of that citation is questionable in that the Hartman Court declined to reverse the trial court’s denial of the defendant’s motion to set aside a default because the defendant failed to show a meritorious defense. Yet, in Freeman, the trial court recognized that the defendant “might have had a good and valid defense[.]”
(Hi) ASMUS
In Asmus v Barrett, this Court stated that Freeman had “ruled by implication that the negligence of an insurer can and would be imputed to the insured,” and opined that “[t]o hold otherwise would be to grant insurance companies an automatic right to vacation of all default judgments.”
In analyzing the trial court’s refusal to set aside the default, the Asmus panel assumed, but did not decide, that certain personnel problems at the defendants’ insurance company constituted good cause for the defendants’ failure to timely answer. Ultimately, however, the Asmus panel affirmed the trial court on the ground that the defendants’ affidavits did not support a meritorious defense.
(iv) LEVITT
In Levitt v Kacy Mfg Co, a panel of this Court took a slightly different approach with regard to the issue whether the insurer’s negligence should be imputed to the defendant. The Levitts sued Kacy Manufacturing Company under a product liability theory. Kacy then apparently sent the summons and complaint to its insurance broker, which in turn passed them on to an insurance management company. However, the insurance management company’s relationship with the insurer had been severed earlier that year. The Levitts then filed a default. Shortly thereafter, the insurance management company notified the Levitts’ attorney that the insurer was in receivership and that no work would be completed on the case for another month. Approximately a week later, the Levitts moved for a default judgment. Kacy then moved to set aside the default, but the trial court denied the motion because, although the affidavit of facts showed a meritorious defense, Kacy had not shown excusable neglect. The trial court then awarded the Levitts a default judgment.
On appeal, the Levitt panel cited Asmus and stated that “[t]he negligence of an insurer resulting in a default can and will be imputed to the insured.” Yet, the panel recognized that “the mere existence of negligence does not prevent a finding of good cause.” The Levitt panel then reasoned as follows:
[The trial judge] did not address the specific negligence that occurred in this case but focused on the problem of companies insulating themselves from default procedures by engaging multiple levels of insurance personnel who must handle suit papers. [The trial judge] would seem to require that a defendant send litigation papers which are served on him directly to his insurer or else proceed “at their own peril”. We do not believe the specific facts of this case justify the application of such a generalized policy towards this defendant’s employment practice.
Apparently, when defendant’s insurer went into receivership, its relationship with [the insurance management company] was severed without adequate notice to defendant or the insurance management company. Thus, the suit papers were erroneously sent to [an insurance management company representative], who, before the insurer was placed in receivership, had handled the claims during the prelitigation stage. We believe that the errors in providing notice and in handling the suit papers, arising out of the unusual problems associated with the insurer’s being in receivership, provide a reasonable excuse for defendant’s delay in filing an answer to plaintiff’s complaint,[ ]
In sum, although adopting a general rule that the insurer’s negligence in failing to answer will be imputed to a defendant, the Levitt panel nevertheless found good cause to set aside the default because of certain special circumstances that constituted a reasonable excuse for Kacy’s delay in answering.
(v) FEDERSPIEL
In Federspiel v Bourassa, Larry Federspiel was injured when Gerald Bourassa hit him with his automobile. Federspiel filed a complaint alleging negligence against Bourassa and Marcia Holland, whose employee served Bourassa alcohol before the accident. Bourassa settled with Federspiel. Holland forwarded the summons and complaint to her insurer, who then forwarded the summons and complaint to an insurance broker. The insurer, however, was unaware that the insurance broker had gone out of business a couple months before the summons and complaint were sent. Apparently during the process of the insurance broker’s records being moved to another agency, Holland’s claim was misplaced. Therefore, counsel was never assigned to timely answer the complaint, and, as a result, the trial court entered a default and default judgment against Holland. Holland moved to set aside the default, and the trial court granted the motion on the basis of excusable neglect and good cause. Federspiel appealed, disputing the trial court’s finding that the failure of Holland’s insurer to provide her with representation constituted good cause to set aside the default.
The Federspiel panel first noted that “Michigan lacks definitive case law on the issue of whether an insurer’s or its intermediaries’ negligence ought to be imputed to the insured to preclude a finding of ‘excusable neglect’ and ‘good cause.’ ” The panel then adopted the reasoning employed in Walters. The Federspiel panel recognized that the split decision in Walters was not controlling precedent and that Court of Appeals cases issued after Walters “diluted its impact,” yet the panel stated that it was nevertheless “impressed with the logic” of the Walters “well-reasoned approach to the problem at hand.” The Federspiel panel therefore concluded that “[t]he insured defendant in the present situation should not be denied her day in court because of the insurer’s negligence in processing her claim.” The panel also concluded that the insurer’s “failure to answer for or defend [Holland] was the culmination of events which amounted to excusable neglect.” Finally, the Federspiel panel found that manifest injustice would result if the default judgment were permitted to stand, noting that evidence supported a meritorious defense that Bourassa was not actually intoxicated at the time of the accident. Accordingly, the panel affirmed the trial court’s decision to set aside the default judgment.
Notably, the Federspiel panel distinguished the facts presented from other cases where this Court affirmed denials of motions to set aside default judgments:
In Freeman, the insurer was reckless in ignoring notice of the suit and this [CJourt upheld the trial court’s exercise of discretion in denying the motion to set aside the default. In both Asmus and Van Haaften [v Miller-Davis Co, 54 Mich App 186; 220 NW2d 752 (1974)], the defendants lacked a meritorious defense, which is not the case here.[ ]
(pi) CONCLUSION
Unfortunately, now 20-plus years after Federspiel, Michigan still “lacks definitive case law on the issue of whether an insurer’s or its intermediaries’ negligence ought to be imputed to the insured to preclude a finding of ‘excusable neglect’ and ‘good cause.’ ” Given this lack of solid precedent on which to rely, and despite the nonbinding nature of the lead opinion in Walters, we, like the Federspiel panel, are persuaded by the logic of Walters. That case clearly articulates the well-reasoned rule that an insurer’s negligence should not be conclusive on the procedurally nonnegligent defendant. A defendant who diligently turns over a case to an ultimately negligent insurer should not be denied his or her day in court. The defendant is not “obligated to call daily to see whether the insurer did what it had contracted and accepted a premium to do.”
In following Walters, we specifically reject the rule implied by Freeman, and later taken up by Asmus, that the negligence of the insurer should be presumptively imputed to the defendant. To hold otherwise may result in the unfavorable consequence of denying defendants who “might have had a good and valid defense” a chance at the. meritorious determination of the issues. “[T]he law favors the determination of claims on the merits . . . .”
We further believe that employing an analysis like that in Levitt, in which the panel found that “unusual problems associated with the insurer’s being in receivership” provided a reasonable excuse for the defendant’s delay, merely serves to complicate the issue. Whether the insurer’s negligence was a mere oversight in failing to meet the filing deadline or whether it is the result of some other complication, the end result is that the nonculpable defendant is unfairly punished for trusting that his or her insurer was doing its job.
We are cognizant of the Asmus panel’s concern that not to apply a blanket rule imputing the insurer’s negligence to the defendant might be viewed as granting “insurance companies an automatic right to vacation of all default judgments.” However, our conclusion here that an insurance company’s negligence in failing to answer a complaint constitutes a reasonable excuse under the good cause test for setting aside a default does not dilute a defendant’s duty to nevertheless show a meritorious defense supported by an affidavit of facts. Indeed, in Asmus, despite ostensibly imputing the insurer’s negligence to the defendant, the panel nevertheless decided the case on the ground that the defendant did not demonstrate a meritorious defense.
In keeping with Walters, we conclude that Amerisure’s negligence should not be imputed to Spence Brothers and that Amerisure’s negligence in failing to answer the complaint constituted a reasonable excuse, under the good cause test, to set aside the default.
(b) COMMUNICATION BETWEEN ATTORNEY AND INSURANCE REPRESENTATIVE
We acknowledge Spence Brothers’ argument that Shawl’s attorney should not have communicated with Rigdins because she was a “non-lawyer.” However, as the trial court stated, “I see no problem with the insurance agent, the person charged contractually with — to act on behalf of the defendant to engage in the extension of time agreements.” Indeed, Rigdins was a senior claims representative for Amerisure. Therefore, the trial court did not abuse its discretion in determining that the communication between Rigdins and Shawl’s attorney was not a reasonable excuse that showed good cause to set aside the default.
C. MERITORIOUS DEFENSE
Spence Brothers argues that it presented a meritorious defense under MCR 2.603(D)(1). “[I]f a party states a meritorious defense that would be absolute if proven, a lesser showing of ‘good cause’ will be required than if the defense were weaker, in order to prevent a manifest injustice.” However, as Alken-Ziegler makes clear, the good cause and meritorious defense elements of MCR 2.603(D)(1) are not to be blurred; they are “separate requirements.” Thus, Spence Brothers must show a meritorious defense to have the default set aside under MCR 2.603(D)(1).
In Michigan, as a matter of public policy, the subcontractors on a job site have a duty to ensure the worksite is safe for their employees. Further, a general contractor is not liable for a subcontractor’s negligence. However, a general contractor may be found liable if it failed to take “reasonable steps within its supervisory and coordinating authority” to protect workers from “readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen.” In what is often referred to as the Funk four-part test,
a plaintiff must show that (1) the defendant, either the property owner or general contractor, failed to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observable and avoidable dangers (3) that created a high degree of risk to a significant number of workmen (4) in a common work area.[ ]
Spence Brothers argues that it is impossible for Shawl to recover under the Funk four-part test. Spence Brothers asserts that its affidavit demonstrates that at least one of the elements under the Funk four-part test is missing and, thus, it has presented a meritorious defense. In its affidavit, Spence Brothers stated that “[a]ny danger created by the allegedly faulty electrical panel was not readily observable by Spence Brothers.” Spence Brothers also stated, “Any danger created by the allegedly faulty electrical panel presented a danger to only a small number of workers since the painting subcontractor, Boice Bird & Sons, requested that the electrical panel be made mobile for purposes of their work.” If proven, these assertions might well be a defense to Shawl’s claim. Therefore, we conclude that Spence Brothers has met its burden by filing an affidavit of facts showing a meritorious defense.
D. MANIFEST INJUSTICE
The Supreme Court has clarified the manifest injustice factor of the “good cause” test as follows:
The first two prongs of the Honigman & Hawkins “good cause” test are unremarkable and accurately reflect our decisions. It is the third factor, “manifest injustice,” that has been problematic. The difficulty has arisen because, properly viewed, “manifest injustice” is not a discrete occurrence such as a procedural defect or a tardy filing that can be assessed independently. Rather, manifest injustice is the result that would occur if a default were to be allowed to stand where a party has satisfied the “meritorious defense” and “good cause” requirements of the court rule. When a party puts forth a meritorious defense and then attempts to satisfy “good cause” by showing (1) a procedural irregularity or defect, or (2) a reasonable excuse for failure to comply with the requirements that created the default, the strength of the defense obviously will affect the “good cause” showing that is necessary. In other words, if a party states a meritorious defense that would be absolute if proven, a lesser showing of “good cause” will he required than if the defense were weaker, in order to prevent a manifest injustice.[ ]
To reiterate, we conclude that Amerisure’s negligence should not be imputed to Spence Brothers and that Amerisure’s negligence in failing to answer the complaint constituted a reasonable excuse under the good-cause test to set aside the default. We further conclude that Spence Brothers has met its burden by filing an affidavit of facts showing a meritorious defense. Therefore, we conclude that permitting the default to stand, by following a rule that would perfunctorily impute Amerisure’s negligence to Spence Brothers, would result in manifest injustice.
E. TOTALITY OF THE CIRCUMSTANCES
In light of the previously unsettled state of the law on the issue whether an insurer’s or its intermediaries’ negligence ought to be imputed to the insured to preclude a finding of “excusable neglect” and “good cause,” we offer additional guidance for future cases. There are multiple types of cases, both civil and criminal, where caselaw provides factors to the trial courts to weigh and balance before reaching a decision based on the totality of the circumstances. Because the grant or denial of a motion to set aside a default judgment is examined under the same standard of review and is similarly fact-intensive, we believe that it would be helpful to the trial courts if we provided additional factors for them to use in their evaluations of “good cause” and “meritorious defense” under MCR 2.603(D)(1). We emphasize that trial courts should base the final result on the totality of the circumstances.
We base the need for a “totality of the circumstances” test in part on the broad elements considered in the cases discussed earlier and in part on the Michigan Supreme Court’s recognition that although “good cause” and a “meritorious defense” are separate requirements that may not be blurred and that a party must have both, there is some interplay between the two: “[I]f a party states a meritorious defense that would be absolute if proven, a lesser showing of ‘good cause’ will be required than if the defense were weaker, in order to prevent a manifest injustice.” With an already existing relationship between the two requirements, we believe that balancing these factors to come up with an overall assessment under the totality of the circumstances provides a better, more easily applied rule because it supplies a flexibility that takes into consideration the variable, fact-intensive nature of default cases, avoiding bright-line distinctions that fail to balance the dueling public policy issues of having cases decided on the merits and not setting aside properly entered default judgments. With respect to the present facts, such a test avoids the two extremes of automatically imputing an insurer’s negligence to a defendant or automatically giving the insurer a free pass to void any default judgment.
To reiterate, the following lists are intended to provide guidance to the trial courts in determining whether a party has shown “good cause” and a “meritorious defense” under MCR 2.603(D)(1) such that setting aside a default judgment is proper under the totality of the circumstances.
In determining whether a party has shown good cause, the trial court should consider the following factors:
(1) whether the party completely failed to respond or simply missed the deadline to file;
(2) if the party simply missed the deadline to file, how long after the deadline the filing occurred;
(3) the duration between entry of the default judgment and the filing of the motion to set aside the judgment;
(4) whether there was defective process or notice;
(5) the circumstances behind the failure to file or file timely;
(6) whether the failure was knowing or intentional;
(7) the size of the judgment and the amount of costs due under MCR 2.603(D)(4);
(8) whether the default judgment results in an ongoing liability (as with paternity or child support); and
(9) if an insurer is involved, whether internal policies of the company were followed.
In determining whether a defendant has a meritorious defense, the trial court should consider whether the affidavit contains evidence that:
(1) the plaintiff cannot prove or defendant can disprove an element of the claim or a statutoxy requirement;
(2) a ground for summary disposition exists under MCR 2.116(C)(2), (3), (5), (6), (7) or (8); or
(3) the plaintiffs claim rests on evidence that is inadmissible.
Neither of these lists is intended to be exhaustive or exclusive. Additionally, as with the factors provided in other contexts, the trial court should consider only relevant factors, and it is within the trial court’s discretion to determine how much weight any single factor should receive.
We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction.
Colista v Thomas, 241 Mich App 529; 616 NW2d 249 (2000).
Id. at 535.
Koy v Koy, 274 Mich App 653, 657; 735 NW2d 655 (2007).
Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000).
Koy, supra at 657.
Amco Builders & Developers, Inc v Team Ace Joint Venture, 469 Mich 90, 94-95; 666 NW2d 623 (2003).
Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d 638 (1999).
Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007).
Alken-Ziegler, supra at 229 (citation omitted).
Levitt v Kacy Mfg Co, 142 Mich App 603, 608; 370 NW2d 4 (1985), quoting Bigelow v Walraven, 392 Mich 566, 576 n 15; 221 NW 2d 328 (1974), quoting 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 662.
MCR 1.108(1) states:
The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or holiday on which the court is closed pursuant to court order.
Levitt, supra at 608, quoting Bigelow, supra, quoting Honigman, supra.
MCR 7.215(J)(1) (stating that, absent subsequent reversal or modification, this Court is bound to follow the precedent established by Court of Appeals decisions issued on or after November 1, 1990).
Walters v Arenac Circuit Judge, 377 Mich 37, 46; 138 NW2d 751 (1966) (opinion by O’Hara, J., joined by Dethmers and Kelly, JJ.). See also Amco Builders & Developers, Inc, supra at 96 (“[Generally, an attorney’s negligence is attributable to that attorney’s client[.]”).
Id., at 46-47 (opinion by O’Hara, J., joined by Dethmers and KELLY, JJ.) (citations omitted).
Id. at 48 (Black and Smith, JJ., concurring).
Id. at 48-56 (Kavanagh, C.J., and Souris and Adams, JJ., dissenting).
See Butterworth Hosp v Farm Bureau Ins Co, 225 Mich App 244, 248; 570 NW2d 304 (1997) (recognizing that a lead opinion of the Michigan Supreme Court signed by only three justices was not binding on this Court).
Freeman v Remley, 23 Mich App 441, 443; 178 NW2d 816 (1970).
Id. at 444.
id.
Id. at 446.
Id. at 446, 448, citing Walters, supra at 47 (stating that a trial court’s decision on a motion to set aside a judgment should not he disturbed absent a clear instance of abuse of discretion).
Hartman v Roberts-Walby Enterprises, Inc, 17 Mich App 724, 726; 170 NW2d 292 (1969).
Asmus v Barrett, 30 Mich App 570, 574-575; 186 NW2d 819 (1971).
Id. at 574.
Levitt, supra at 605.
Id. at 606.
Id. at 609.
Id., citing Walters, supra, and Asmus, supra at 574.
Id. at 609-610.
Federspiel v Bourassa, 151 Mich App 656, 658; 391 NW2d 431 (1986).
Id. at 658-659, 661.
Id. at 661.
Id. at 659, 661.
Id. at 658, 659.
Id. at 660.
Id. at 661.
Id.
Id. at 663.
Id.
Id.
Id. at 658, 664.
Id. at 663 n 2.
Id. at 661.
We distinguish procedurally nonnegligent defendants from defendants who are alleged to be negligent with respect to the substance of the plaintiffs claim.
Walters, supra at 46.
Freeman, supra at 444.
Alken-Ziegler, supra at 229.
Asmus, supra at 574-575.
See MCR 2.603(D)(1).
Alken-Ziegler, supra at 233-234.
Id. at 230-231.
See Hughes v PMG Bldg, Inc, 227 Mich App 1, 6; 574 NW2d 691 (1997).
Signs v Detroit Edison Co, 93 Mich App 626, 632; 287 NW2d 292 (1979).
Ormsby v Capital Welding, Inc, 471 Mich 45, 53-54; 684 NW2d 320 (2004), quoting Funk v Gen Motors Corp, 392 Mich 91, 104; 220 NW2d 641 (1974), overruled in part on another ground in Hardy v Monsanto Enviro-Chem Sys, Inc, 414 Mich 29 (1982).
Ormsby, supra at 54.
Alken-Ziegler, Inc, supra at 233-234.
See Sparks v Sparks, 440 Mich 141, 158-160; 485 NW2d 893 (1992) (determining alimony is within the trial court’s discretion and involves consideration of certain enumerated factors); People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988) (whether a confession is voluntary requires reviewing factors and making a determination on the basis of the totality of the circumstances); People v Colon, 233 Mich App 295, 304-305; 591 NW2d 692 (1998) (a suggestive identification procedure is only improper where, after reviewing certain relevant factors, the totality of the circumstances indicates a substantial likelihood of misidentification); McCain v McCain, 229 Mich App 123, 124; 580 NW2d 485 (1998) (custody determinations are made on the basis of the best interest of the child in light of the trial court’s findings with regard to 12 specific factors).
Alken-Ziegler, Inc, supra at 230-231, 233-234.
Id. at 233-234.
For example, it seems illogical to set aside a default judgment where the amount of fees and costs to be awarded under MCR 2.603(D)(4) will be greater than or roughly equal to the amount of the default judgment, as the defendant will pay the same amount, whether in costs if the judgment is set aside or under the judgment if it is not.
See Sparks, supra at 159-160 (in determining alimony, the trial court determines what factors are significant and how much weight to assign to each factor; the factors listed are not exclusive); Cipriano, supra at 334-335 (no single factor is conclusive of the issue); People v Kachar, 400 Mich 78, 93-94, 97; 252 NW2d 807 (1977) (factors used to determine whether an independent basis for an in-court identification exists are not inclusive or exclusive and the weight given to each is within the trial court’s discretion); McCain, supra at 131 (a trial court need not give equal weight to all the best-interest factors in child custody decisions). | [
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KELLY, P.J.
Defendants appeal as of right the judgment of the Court of Claims in favor of plaintiff following a bench trial. Flaintiff cross-appeals from the same judgment. We affirm.
I. BASIC FACTS AND PROCEDURAL BACKGROUND
This action arose after a parcel of residential property was foreclosed under the General Froperty Tax Act (GPTA), MCL 211.1 et seq., for the failure to pay property taxes. The trial court heard the matter on stipulated facts and exhibits, and we set forth the relevant facts here.
Brandon Larsson and Mary Larsson were owners of the property located at 604 East Oak Street in St. Johns, Michigan. The property was identified in the recorded deed as lot 66 of Prince Estates No. 2. On October 31, 1997, the Larssons obtained a promissory note for $115,200 that was secured by a first mortgage to Homestead Mortgage Company (Homestead). The mortgage was recorded with the Clinton County register of deeds on November 5, 1997, containing an incorrect lot number, but identifying the correct street address and permanent tax parcel identification number. On November 7, 1997, Homestead assigned the first mortgage to Investaid Corporation (Investaid), and recorded that assignment on January 20, 1998. The recorded assignment included the correct lot number and street address.
The 1999 property taxes on the property, due February 14, 2000, were never paid. On February 23, 2000, Investaid assigned the first mortgage to BankBoston, NA (BankBoston), formerly known as First Bank of Boston, and the assignment listed BankBoston’s address as 100 Federal Street, Boston, Massachusetts, 02210. Shortly thereafter, BankBoston merged with Fleet National Bank and changed its name to FNB. FNB’s registered address was 111 Westminster Street, Providence, Rhode Island, 02903-2305. On April 3, 2000, the assignment from Investaid to BankBoston was recorded and correctly described the subject property as lot 66 along with the correct street address and permanent tax parcel identification number.
On March 20, 2001, a certificate of forfeiture from the state was recorded describing the property as lot 66 and containing the correct street address and permanent tax parcel identification number. On April 15, 2001, an assignment of the first mortgage from Bank-Boston to plaintiff was recorded, again describing the property as lot 66 and containing the correct street address and permanent tax parcel identification number. Of particular note, the assignment listed plaintiffs address as 100 Federal Street, Boston, Massachusetts, 02210, the same address listed for BankBoston in the February 23, 2000, mortgage assignment.
On June 18, 2001, a petition for foreclosure was recorded describing the property as lot 66 and containing the correct permanent tax parcel identification number. On August 10, 2001, the first mortgage to Homestead Mortgage was rerecorded to clarify the property description, which described the property as lot 66 and contained the correct street address and permanent parcel identification number. On that same day, the assignment from Homestead to Investaid was rerecorded, describing the property as lot 66 and containing the correct street address. Also on that same day, the assignment from Investaid to BankBoston was rerecorded, describing the property as lot 66 and contained the correct street address and permanent parcel identification number.
Defendants contracted with Title Check, L.L.C. (Title Check), an outside source, to locate the addresses of interested parties through real estate and other records and to send notices of the forfeiture and foreclosure proceedings. Title Check sent notices of the forfeiture and foreclosures hearings through registered mail, return receipt requested, to Mary Larsson, Homestead, Investaid, and BankBoston, and those notices were delivered and signed for between December 6 and 19, 2001.
Except for BankBoston, Title Check sent all notices to the addresses recorded with the Clinton County register of deeds. With respect to BankBoston, rather than sending notices to the address recorded with the Clinton County register of deeds, the notices were addressed to 111 Westminster Street, c/o FNB, Providence, Rhode Island, 02903-2305 and to 15 Westminster Street, Providence, Rhode Island, 02903-2305. Title Check obtained the Rhode Island addresses from the Federal Deposit Insurance Corporation (FDIC) website listing for financial institutions. During all times relevant to these proceedings, plaintiff continued to maintain an office at 100 Federal Street, Boston, Massachusetts, to accept service of process regarding any mortgages where “BankBoston had been a party of interest in the mortgage or the security given for the mortgage,” including the February 23, 2000, mortgage assignment. Title Check’s tracing worksheet does not disclose that it was aware of the April 15, 2001, recorded mortgage assignment from BankBoston to plaintiff. No notices were mailed to either plaintiff or Bank-Boston at the address listed in the recorded mortgage assignment from Investaid to BankBoston. Notices of the forfeiture and foreclosure hearing were also published in the Clinton County News on December 23 and 30, 2001, and on January 6, 2002, listing, in part, BankBoston as an interested party.
Following a foreclosure hearing, a judgment of foreclosure was issued in the amount of $2,316.24. A July 30, 2002, notice of judgment of foreclosure was recorded on September 20, 2002. On September 23, 2002, the property was sold at auction for $109,000, with a minimum bid starting at $7,800 to cover delinquent taxes, interest, penalties, and costs associated with foreclosure.
Plaintiff brought this action against defendants, asserting that its mortgage interest had been foreclosed without due process. In its amended complaint, plaintiff asserted that the amount in excess of the taxes owed, penalties, and fees taken as authorized by MCL 211.78n amounted to an unconstitutional taking without just compensation. Plaintiff argued that while BankBoston and plaintiffs addresses were known at the time of forfeiture and foreclosure, notice was not sent to the required address, amounting to a denial of due process. Plaintiff claimed that as an assignee and trustee of BankBoston, it was entitled to assert the rights of its assignor and beneficiary, including the right to proper statutory notice and due process regarding foreclosure. Plaintiff further argued that the enforcement of the GPTA by defendants resulted in an unconstitutional taking because it amounted to a taking of private property for public use and plaintiff did not receive just compensation for the taking.
Defendants contended that no violation of due process occurred because the recorded forfeiture certificate, at a minimum, gave plaintiff constructive notice of the forfeiture and the impending foreclosure proceedings, and that the certified notices sent to BankBoston at the address indicated by the FDIC website and a second address were sufficient to comply with due process. Defendants also asserted that plaintiff was on notice of the forfeiture and the pending foreclosure because the April 15, 2001, mortgage assignment from BankBoston to plaintiff was recorded after the certificate of forfeiture was recorded. According to defendants, neither plaintiffs nor its predecessor’s interest in the property could be identified by public records because plaintiffs interest had yet to be recorded when the forfeiture certificate was issued, and because neither the first mortgage nor the mortgage assignments were in the chain of title when the forfeiture certificate was recorded because the first mortgage incorrectly referred to lot 88. Further, defendants claimed that it was unclear whether plaintiff actually had an interest in the property because the 1998 assignment from BankBoston to plaintiff was purportedly executed before BankBoston obtained an interest in 2000. Defendants also denied that an unconstitutional taking without just compensation occurred because plaintiffs interest in the property ended upon foreclosure.
The Court of Claims found in favor of plaintiff, concluding that it was denied due process. The court found that defendants did not afford BankBoston or its trustee, plaintiff, due process because Title Check failed to mail notice to BankBoston’s last known address as identified in the mortgage assignment and character ized that address as the address reasonably calculated to apprise BankBoston and plaintiff, its trustee, of the then pending hearings. The court further concluded that in regard to MCL 211.78i(9), BankBoston was an owner of a property interest entitled to notice. To that end, the court concluded that the subsection did not preclude plaintiff from raising the due process claim for itself or on behalf of its beneficiary, BankBoston, because neither was properly served. The Court of Claims entered a judgment in plaintiffs favor together with interest calculated under MCL 600.6455(2).
II. STANDARDS OF REVIEW
Following a bench trial, a trial court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 531; 695 NW2d 508 (2004). A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id. Resolving this issue involves questions of statutory interpretation, which are reviewed de novo. Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521, 525-526; 697 NW2d 895 (2005). “The primary goal of statutory interpretation is to ascertain and give effect to the Legislature’s intent[,]” and the “Legislature is presumed to have intended the meaning it plainly expressed.” Linsell v Applied Handling, Inc, 266 Mich App 1, 15; 697 NW2d 913 (2005). If statutory language is clear and unambiguous, we are required to apply the statute as written. Id. Whether a party has been afforded due process is a question of law that is reviewed de novo. Reed v Reed, 265 Mich App 131, 157; 693 NW2d 825 (2005).
III. ENTITLEMENT TO NOTICE
Defendants argue that the Court of Claims effectively concluded that plaintiff was statutorily entitled to notice and this constitutes error requiring reversal. While plaintiffs interest was not recorded until after the certificate of foreclosure was filed, BankBoston was entitled to notice as a trust beneficiary that retained a properly recorded interest in the property. Accordingly, under the circumstances of this case, we do not find any error in the Court of Claims decision.
Under MCL 211.78i, an interest holder identified in the records of the register of deeds is entitled to notice if identifiable before a certificate of forfeiture is recorded. MCL 211.78i(l) provides that, once a property has been forfeited to the county treasurer under § 78g, MCL 211.78g, the foreclosing governmental unit is required to initiate a record search to identify the property owners entitled to notice of the subsequent show cause hearing under § 78j, MCL 211.78j, and the foreclosure hearing under § 78k, MCL 211.78k. The notice provisions of § 78i(6) that were in effect in 2001, when the notices were sent, provided:
The owner of a property interest is entitled to notice under this section of the show cause hearing under section 78j and the foreclosure hearing under section 78k if that owner’s interest was identifiable by reference to any of the following sources before the date that the county treasurer records the certificate[ ] required under section 78g(2):
(a) Records in the office of the county register of deeds.
(b) Tax records in the office of the county treasurer.
(c) Records in the office of the local assessor.
(d) Records in the office of the local treasurer.
The notice provisions in § 78i “are designed to ensure that those with an interest in the subject property are aware of the foreclosure proceedings so that they may take advantage of their redemption rights.” In re Petition by Wayne Co Treasurer, 265 Mich App 285, 292-293; 698 NW2d 879 (2005).
A. BANKBOSTON’S ENTITLEMENT TO NOTICE
Plaintiff is the trustee for the BankBoston Home Equity Loan Trust 1998-1, and BankBoston is the servicer of the trust pursuant to a power of attorney and a servicing agreement. As such, BankBoston is a beneficiary that retained a property interest when it assigned the mortgage to plaintiff. Therefore, for purposes of MCL 211.78i(6), BankBoston was an owner of a property interest entitled to notice at the time the state was required to send notices. See Bankers’ Trust Co of Detroit v Russell, 263 Mich 677, 682; 249 NW 27 (1933) (reasoning that a trustee holds interest in property for the benefit of another). Further, pursuant to MCL 600.2041, plaintiff, as trustee, is statutorily permitted to file a lawsuit on behalf of BankBoston, its beneficiary. See American Family Ass’n of Michigan v Michigan State Univ Bd of Trustees, 276 Mich App 42, 51; 739 NW2d 908 (2007) (noting that a plaintiff must meet both the statutory and constitutional requirements in order to have standing). Ultimately, given the relationship between plaintiff and BankBoston and BankBoston’s initial ownership of a property interest and continuing beneficial ownership interest in that property interest, it is irrelevant whether plaintiff was entitled to notice under MCL 211.78i(6) because Bank-Boston, its beneficiary, was entitled to notice that it did not receive as required by statute, and plaintiff was allowed to bring suit on its behalf.
B. ERRONEOUS PROPERTY DESCRIPTION
Defendants assert that, because the first mortgage of Homestead improperly described the property as lot 88 instead of lot 66, those subsequently recorded instruments that correctly described the property as lot 66 were nevertheless unidentifiable for purposes of the period when the foreclosing entity was required to search the register of deeds to identify interests in the property as provided under the applicable version of MCL 211.78i(6). However, defendants mistakenly assert that those instruments were outside the chain of title, i.e., undiscoverable at the register of deeds. MCL 565.28(1) requires every register of deeds to keep a general index to each set of books by alphabetically entering the name of each party to each recorded instrument. This grantor-grantee index creates the chain of title to a particular property. 1 Cameron, Michigan Real Property Law (3d ed), § 11.29, p 404. A person is on constructive notice of those instruments appearing within a chain of title. Houseman v Gerken, 231 Mich 253, 255; 203 NW 841 (1925).
Here, a search of the former owners’ names would have revealed the name of the first mortgage provider, Homestead, and a search of Homestead’s name would have revealed Investaid’s name, thereafter revealing the name of BankBoston. Accordingly, those instruments were not outside the chain of title. Further, because the mortgage assignment to BankBoston accurately described the property, the foreclosing entity had, at a minimum, constructive notice of BankBoston’s interest in the property. Cf. Savidge v Seager, 175 Mich 47, 59-60; 140 NW 951 (1913) (concluding that the recorded instrument did not provide constructive notice of an interest in the property because the description was too inaccurate).
IV NOTICE AND DUE PROCESS
Defendants claim that given the circumstances, the notices sent to the Rhode Island addresses were sufficient to satisfy due process. We disagree. As our Supreme Court has recently held, an address reasonably calculated to reach a person entitled to notice is the address listed on a recorded deed. Sidun v Wayne Co Treasurer, 481 Mich 503; 751 NW2d 453 (2008). Because defendants had BankBoston’s address but chose to disregard it and send the notices to other addresses obtained from the Internet, defendants failed to provide minimal due process. Id. at 514-515.
A. ADEQUACY OF NOTICE
The GPTA provides that state and federal due process standards, rather than specific provisions of the act, govern the adequacy of notice under the act:
It is the intent of the legislature that the provisions of this act relating to the return, forfeiture, and foreclosure of property for delinquent taxes satisfy the minimum requirements of due process required under the constitution of this state and the constitution of the United States but that those provisions do not create new rights beyond those required under the state constitution of 1963 or the constitution of the United States. The failure of this state or a political subdivision of this state to follow a requirement of this act relating to the return, forfeiture, or foreclosure of property for delinquent taxes shall not be construed to create a claim or cause of action against this state or a political subdivision of this state unless the minimum requirements of due process accorded under the state constitution of 1963 or the constitution of the United States are violated. [MCL 211.78(2).]
See also Republic Bank v Genesee Co Treasurer, 471 Mich 732, 737; 690 NW2d 917 (2005).
Due process protects a real estate owner’s interest in property. Dow v Michigan, 396 Mich 192, 204; 240 NW2d 450 (1976). Due process requires that an owner be given proper notice and an opportunity to contest a state’s claim to take the property for the owner’s failure to pay taxes. Id. at 196. “[N]otice must be sent to an address reasonably calculated to apprise the object of notice of the pending proceedings, and this requirement must be evaluated in the context of affording the object of notice minimal due process.” Republic Bank, supra at 739. As the United States Supreme Court has stated, “ ‘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[.]’ ” Jones v Flowers, 547 US 220, 229; 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); Dow, supra at 211.
In light of our Supreme Court’s decision in Sidun, supra, and after reviewing the evidence presented below, we conclude that the notices sent to BankBoston were not reasonably calculated to apprise it of the forfeiture hearings. BankBoston recorded its assignment from Investaid, and this assignment provided its Boston address, at which it continued to maintain an office after its merger with Fleet. Fleet is a large international bank with offices all over the country. Given the sheer size of Fleet and the offices it undoubtedly assumed as a result of the merger, Fleet determined the address where notices should be sent. Even after the merger, plaintiff still maintained the BankBos ton address with the register of deeds as the proper place to receive notice regarding the property.
However, Title Check disregarded this address and instead chose to send notices to two Fleet addresses in Providence. It is unknown what relationship, if any, these Providence addresses had to either the property or the pending foreclosure. The notices sent were not reasonably calculated to apprise BankBoston of notice. Without any statutory authority, a foreclosing governmental unit lacks the power or discretion to determine the best business practices of private entities. On the basis of its own policies and procedures, BankBoston made the decision to provide its Boston address in the mortgage assignment. Plaintiff also listed the Boston address on the assignment recorded with the register of deeds and Fleet maintained that office at all times relevant to these proceedings. Defendants may not simply substitute their judgment with regard to where parties should receive notice. Through Title Check, defendants were aware of BankBoston’s Boston address and failed to send notice to that address.
Interested parties are “entitled to have the [government] employ such means ‘as one desirous of actually informing [them] might reasonably adopt’ to notify [them] of the pendency of the proceedings.” Dow v Michigan, 396 Mich 192; 240 NW2d 450 (1976), quoting Mullane, supra at 315. That is, the means employed to notify interested parties must be more than a mere gesture; they must be means that one who actually desires to inform the interested parties might reasonably employ to accomplish actual notice. Mullane, supra at 315. [Sidun, supra at 509.]
Accordingly, a party that desires or is required to provide notice of forfeiture and foreclosure proceedings to an entity with an interest in the real property may not simply disregard the address provided by that entity to the register of deeds. The Court of Claims did not err in concluding that defendants failed to satisfy due process.
B. PLAINTIFF’S ASSERTION OF LACK OF NOTICE
Defendants also contend that plaintiff is barred from asserting lack of notice. We disagree. MCL 211.78i(9) provides:
The owner of a property interest who has been properly served with a notice of the show cause hearing under section 78j and the foreclosure hearing under section 78k and who failed to redeem the property as provided under this act shall not assert any of the following:
(a) That notice was insufficient or inadequate on the grounds that some other owner of a property interest was not also served.
(b) That the redemption period provided under this act was extended in any way on the grounds that some other owner of a property interest was not also served.
BankBoston was an owner of a property interest entitled to notice at the time the state was required to send notices and remained an owner of a property interest when it became the beneficial holder of the mortgage. Accordingly, under MCL 600.2041(1), plaintiff had standing to bring suit on BankBoston’s behalf. Section 78 does not apply because plaintiff, as trustee of BankBoston, its beneficiary, had standing to pursue a due process claim against defendants, which failed to provide appropriate notice to satisfy due process. Because BankBoston did not receive statutorily required notice, defendants’ argument is misplaced.
C. CONSTRUCTIVE NOTICE
Defendants also argue that due process was satisfied because the forfeiture certificate was recorded before the mortgage assignment from BankBoston to plaintiff. We disagree.
Michigan is a race-notice state, MCL 565.29; Richards v Tibaldi, 272 Mich App 522, 539; 726 NW2d 770 (2006), and a recorded interest in property takes priority over subsequent owners and encumbrances, MCL 565.25(4); Ameriquest Mortgage Co v Alton, 273 Mich App 84, 94; 731 NW2d 99 (2006). However, it does not follow that recording a certificate of forfeiture is reasonably calculated to apprise the interested parties of the pending foreclosure. Rather, the onus is on the foreclosing governmental unit to provide notice, and a party that records an instrument with the register of deeds is not required to determine whether anything has been filed regarding foreclosure. Again, as our Supreme Court has recently stated, “[a] party’s ability to take steps to safeguard its own interests does not relieve the government of its constitutional obligation. Sidun, supra at 517. Had BankBoston and plaintiff received notice of the proceedings at the address recorded with the register of deeds, due process would have been satisfied. See Republic Bank, supra at 742.
vinterest
A. MCL 600.6455
In its cross-appeal, plaintiff argues that the Court of Claims erred by calculating interest based on MCL 600.6455(2) instead of subsection 1 because its interest in the property and its remedies were based on contract. We disagree. We review de novo questions of statutory interpretation. Griffith, supra at 525-526.
MCL 600.6455 provides, in pertinent part, as follows:
(1) Interest shall not be allowed upon any claim up to the date of the rendition of judgment by the court, unless upon a contract expressly stipulating for the payment of interest. All judgments from the date of the rendition of the judgment shall carry interest at the rate of 12% per annum compounded annually, except that judgment upon a contract expressly providing for interest shall carry interest at the rate provided by the contract in which case provision to that effect shall be incorporated in the judgment entered. This subsection shall apply to any civil action based on tort filed on or after July 9, 1984 but before January 1, 1987 and any action pending before the court of claims on July 9, 1984. This subsection shall apply to any action, other than a civil action based on tort, filed on or after July 1,1984 and any action pending before the court of claims on July 9, 1984.
(2) Except as otherwise provided in this subsection, for complaints filed on or after January 1, 1987, interest on a money judgment recovered in a civil action shall be calculated from the date of filing the complaint at a rate of interest which is equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually, pursuant to this section. [Emphasis added.]
Plaintiff maintains that its action was not based on a tort, and it seeks to use subsection 1 so that the interest on the judgment will be calculated using the rate provided in the mortgage contract. By its plain language, subsection 1 applies to any civil tort action filed before January 1, 1987, and to any other type of civil action filed on or after July 1,1984. Subsection 2 applies to all actions filed on or after January 1, 1987. The action in the instant case was filed on April 7, 2003, and a violation of due process is a constitutional tort. See Reid v Michigan, 239 Mich App 621, 629; 609 NW2d 215 (2000) (“[Tjypically, a constitutional tort is committed by a governmental employee exercising discretionary powers so that constitutional rights personal to the plaintiff are thereby violated.”) (internal quotation marks omitted). Although the underlying property interest arose from a contractual right, plaintiffs claim was based on a lack of due process, a constitutional tort, not the mortgage contract. Moreover, the interest plaintiff seeks was already recovered as part of the constitutional tort damages. Accordingly, the Court of Claims properly calculated interest under subsection 2.
B. CONTRACTS CLAUSE
Plaintiff claims that by operation of subsection 2, it has been denied the greater amount of interest that would have been due and payable under the promissory note. In light of this lesser amount of interest awarded, plaintiff argues that the contractual rate in the underlying promissory note and mortgage must be respected to avoid violating the Contracts Clause of the federal and state constitutions. US Const, art I, § 10; Const 1963, art 1, § 10. We disagree. Because this issue was not raised in the Court of Claims, it is unpreserved and our “review is limited to determining whether a plain error occurred that affected substantial rights.” In re Egbert R Smith Trust, 274 Mich App 283, 285; 731 NW2d 810 (2007).
The Contracts Clause prohibition against any state law that impairs the obligations of contract is not absolute and must be “accommodated to the inherent police power of the State to safeguard the vital interest of its people.” Romein v Gen Motors Corp, 436 Mich 515, 534; 462 NW2d 555 (1990) (internal quotation marks and citations omitted). The following three-pronged test was established to determine whether the state’s police power is valid with respect to the Contracts Clause:
The first prong considers whether the state law has operated as a substantial impairment of a contractual relationship. The second prong requires that legislative disruption of contractual expectancies be necessary to the public good. The third prong requires that the means chosen by the Legislature to address the public need be reasonable. [Health Care Ass’n Workers Compensation Fund v Director of the Bureau of Worker’s Compensation, 265 Mich App 236, 241; 694 NW2d 761 (2005).]
See also Romein, supra at 534-536. With regard to the first prong, this Court has concluded that retroactive application of a statute relating to interest where the statue required an insurer to pay more interest than that for which it had contracted did not constitute a violation of the Contracts Clause. Cosby v Pool, 36 Mich App 571, 575, 578; 194 NW2d 142 (1971). Accordingly, because the situation here is substantially similar, no plain error occurred.
VI. UNCONSTITUTIONAL TAKING
Plaintiff argues that, because the subject property was sold for an amount well in excess of the taxes owed, the enforcement action here resulted in an unconstitutional taking without just compensation. Given our conclusion that the notices defendants sent to BankBoston failed to satisfy due process requirements, we need not address this issue.
Affirmed.
CAVANAGH, J., concurred.
The Clinton County register of deeds interpreted the property description in the mortgage to read “lot 88 of Prince Estates No. 2,” rather than “lot 66,” and indexed it accordingly. According to the Clinton County Register of Deeds, Carol Wooley, recorded mortgages cannot be searched by tax identification number and deeds recorded before 2001 cannot be searched by tax parcel identification number.
On November 23, 1999, Brandon quitclaimed the property to Mary. The quitclaim deed was recorded on July 11, 2000.
This section was amended by 2003 PA 263, effective January 5, 2004, and has since been amended by 2006 PA 611, effective January 3, 2007.
The certificate refers to the certificate of forfeiture. MCL 211.78g(2).
Defendants’ publication of the forfeiture proceedings was also insufficient to provide statutory notice:
A notification method may be reasonable and constitutional if employing the method is reasonably certain to inform those affected,” or, when circumstances do not reasonably permit such notice, if the method employed is not substantially less likely to provide notice than other customary alternative methods. Mullane, supra at 315. Notably, Mullane recognized that the reasonableness of a particular method could vary, depending on what information the government had. That case concerned a New York law that merely required notice by publication to inform beneficiaries of a common trust fund that the fund was subject to judicial settlement. Id. at 309-310. The Court held that while notice by publication was constitutionally sufficient with regard to beneficiaries whose interests or addresses were unknown, notice by publication was insufficient for beneficiaries whose names and addresses were known by the government. “Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” Id. at 318. Notice by publication was inadequate in the case of known beneficiaries “because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand.” Id. at 319. [Sidun, supra at 510-511.] | [
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(On Remand)
Before: R. M. Maher, P.J., and Bronson and Cynar, JJ.
R. M. Maher, P.J.
On June 14, 1978, defendant was convicted after a jury trial of first-degree murder, MCL 750.316; MSA 28.548, and felony-firearm, MCL 750.227b; MSA 28.424(2), and was subsequently sentenced to life imprisonment. He appealed as of right. On October 24, 1980, this Court reversed his conviction. 101 Mich App 130; 300 NW2d 502 (1980). This Court’s decision was eventually reversed by the Supreme Court and defendant’s case was remanded to this Court so that we might "consider whether any of the defendant’s remaining issues constitute reversible error”. 415 Mich 356, 361; 329 NW2d 710 (1982).
Defendant was convicted of the murder of Ira Marie Hesterley. The full facts may be found in this Court’s first opinion. Briefly, Hesterley’s body was found in a deserted area near Leland and Russell streets in Detroit on February 8, 1978. She had been shot twice. Defendant’s ring and watch were found nearby. Defendant was arrested with Caroline Pegram (who later pled guilty to second-degree murder, MCL 750.317; MSA 28.549, and felony-firearm, MCL 750.227b; MSA 28.424[2]) later that night at a motel. Hesterley’s car was parked outside. Before the shooting, defendant, Pegram, Hesterley, and Renee Smithson had been living together.
After reviewing the record, we believe that two errors combined to deny defendant a fair trial. The first error involves the trial court’s decision not to suppress defendant’s prior record for impeachment purposes. The second error involves the use of defendant’s past criminal record at trial, even though he did not testify.
Approximately a week before trial, defendant requested that his prior convictions for armed robbery and assault with intent to commit great bodily harm less than murder be suppressed should he testify. Defendant strongly intimated that he would not testify if the trial court declined to suppress the prior record. The trial court responded by saying, "Motion is denied”. No other opinion on this issue was ever rendered, and defendant did not testify at trial.
In People v West, 408 Mich 332, 340; 291 NW2d 48 (1980), the Supreme Court ruled:
"The law in Michigan is clear that the trial judge must recognize that he has the discretion to exclude reference to prior convictions for impeachment purposes. Jackson, supra, 391 Mich 336. When defendant moves to exclude reference to the convictions, the trial court 'must positively indicate and identify its exercise of discretion’. Cherry, supra. In this case the words 'Motion in limine denied’ do not comply with the dictates of Cherry and Jackson.”
The same error was later found to require reversal in People v Carner, 117 Mich App 560, 573; 324 NW2d 78 (1982):
"On request, a trial judge must exercise his discretion in deciding whether to exclude reference to a prior conviction record. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). In order to comply with the rule in Jackson, the trial court must positively indicate and identify its exercise of discretion. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). Although counsel for both sides here argued the probative effect versus the prejudicial impact of the prior conviction, the trial court merely stated that the motion in limine was denied. The situation in the instant case is quite similar to that in People v West, 408 Mich 332; 291 NW2d 48 (1980), and, therefore, we hold that the trial court erred by not positively indicating and identifying its exercise of discretion in denying the defense motion to suppress the prior conviction.”
We therefore conclude that the trial court’s failure to "positively indicate and identify its exercise of discretion” constituted error.
The second error, as stated earlier, involves the use of evidence of defendant’s previous criminal activity although defendant did not testify at trial. Defendant has subdivided this issue into two parts. We find that the trial court erred as to one of these subissues.
Defendant first claims that a prosecution witness, Mitchell Sanders, was improperly permitted to testify that defendant had told him that "Marie [Hesterley] and somebody else, Tracy [Caroline Pegram], or whoever, suppose [sic] to have jumped on some girl and, you know, pulled her in his car” while defendant was present. Sanders also testified that defendant had told him that he was afraid Hesterley would go to the police and that "[h]e didn’t want to go back to the penitentiary”, and therefore was not sure if he should "take her out”, meaning "kill her”. Defendant’s second claim stems from the testimony, later in the trial, of Officer Joseph Harris and Sergeant Bernard Brantley, who stated that after the murder they arrested defendant for armed robbery, not for murder. Brantley also read a police report to the jury which alleged that defendant, Pegram, and a woman believed to be Hesterley had committed an armed robbery. On appeal, the prosecution states that it sought to introduce the officers’ testimony, along with that of Sanders, to prove that defendant had intentionally killed Hesterley because she, Pegram, and defendant had committed an armed robbery (the crime described by Sanders) and because defendant feared Hesterley would report that crime and so send defendant back to prison. This evidence was critical to the prosecution’s case because the issue at trial was whether defendant had intended to kill Hesterley or had merely been present when Pegram committed the murder for her own reasons.
Generally, "[w]hen a defendant does not testify, evidence of former convictions is inadmissible unless relevant and material to the issue being tried”. People v Kenneth Smith, 39 Mich App 575, 577; 197 NW2d 842 (1972). See, also, People v Fleish, 321 Mich 443, 461; 32 NW2d 700 (1948), and People v DerMartzex, 390 Mich 410, 413; 213 NW2d 97 (1973). Our Courts have strictly followed the general rule because "there is a high degree of probability that a jury will infer [a defendant’s] guilt of the offense charged on the basis of his past record”. People v Andrews #1, 52 Mich App 719, 721; 218 NW2d 379 (1974), modiñed on other grounds 392 Mich 775; 220 NW2d 36 (1974). See, also, People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969).
Defendant correctly argues that neither piece of evidence was properly admitted as "similar acts” evidence under MRE 404b, as construed by People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982), and People v Major, 407 Mich 394; 285 NW2d 660 (1979). The prosecution clearly failed to establish any similarity whatsoever between the shooting of Marie Hesterley and any of defendant’s alleged prior offenses.
However, the inadmissibility of evidence of a particular prior offense as a "similar act” does not necessarily preclude its admission for nonimpeachment purposes. An example occurred in People v Mauch, 23 Mich App 723; 179 NW2d 184 (1970), lv den 384 Mich 765 (1970), where the defendant was on trial for prison escape. The prosecution was permitted to show the fact of defendant’s imprisonment for another crime, even though there was no similarity between that crime and the escape charge, because the evidence was relevant (and necessary) as an element of the crime charged.
In this case, the prosecution argues that the testimony of Mitchell Sanders and of the two police officers was properly admitted to show defendant’s motive for the murder. Generally, "[w]here the prior crime was a necessary preliminary to the successful commission of the ultimate crime, the preliminary crime may be shown”. 1 Wharton’s Criminal Evidence (13th ed), § 242, p 545. Specifically,
"Evidence of motive which suggests the doing of the act charged is always admissible, and this is true even though such evidence shows or tends to show the commission of another crime. Thus, where the motive for the crime charged is the concealment of some other crime, as by killing a police officer or a witness, the evidence of such other crime is admissible to show motive.” 1 Wharton’s Criminal Evidence (13th ed), § 247, pp 561-564. (Footnotes omitted.)
This principle has been accepted in Michigan since at least Templeton v People, 27 Mich 501 (1873), and has been codified in MRE 404b. It was applied in People v Ascher, 126 Mich 637; 86 NW 140 (1901), where the defendant was a spiritualistic medium who had fraudulently induced his victim to wear a gold belt and then allegedly murdered the victim for the belt. At the murder trial, the prosecution was permitted to show that the victim’s belt was missing when he was found. It was again applied in People v Flynn, 93 Mich App 713; 287 NW2d 329 (1979), lv den 409 Mich 852 (1980), where the defendant was on trial for felonious assault and felony-firearm for allegedly assaulting a police officer. The prosecution was permitted to show that the defendant had had illicit drugs in his home when the police arrived to arrest him because the evidence provided the motive for the defendant’s assault on the officer. Other examples may be found in People v Melvin, 70 Mich App 138; 245 NW2d 178 (1976), lv den 399 Mich 817 (1977), and People v Averill, 59 Mich App 507; 229 NW2d 827 (1975).
In this case, the trial court properly admitted Mitchell Sanders’s testimony that defendant had not wanted to return to prison. Although this statement revealed the fact that defendant had a criminal record, it was nevertheless admissible because it partially showed defendant’s motive for murdering Marie Hesterley.
We cannot, however, say the same of the testi mony of officers Harris and Brantley. Based on cases like Ascher and Flynn, the prosecution generally had the right to prove that an armed robbery had formed defendant’s motive for the murder. However, the prosecution did not present evidence of an armed robbery, but only presented evidence that defendant was arrested for an armed robbery. The arrest itself did not form the motive as argued by the prosecution and, in fact, could not have done so because the murder had already been completed before the police arrived to arrest defendant. It was the armed robbery itself which allegedly motivated defendant to commit murder. This case is therefore distinguishable from People v Flynn, supra, and People v Gosch, 82 Mich 22; 46 NW 101 (1890), where the police activity formed the motives for the crimes. Here, therefore, the jury’s understanding of the crime was not enhanced in any way by the testimony that defendant was to be arrested for armed robbery.
The inadmissibility of this testimony was not mitigated by the introduction of other evidence which allegedly showed that an armed robbery had occurred. The police officers’ testimony was itself nothing but hearsay evidence that a robbery had occurred. Neither of the officers testified that they had seen the armed robbery; instead, in essence, they merely repeated the allegations of another, unnamed, person. Mitchell Sanders’s testimony consisted only of a statement that Pegrani and Hesterley had "jumped on some girl” and forced her into a car. This statement fails to show asportation, a taking, or the presence of a weapon, all necessary elements of armed robbery (see People v Joseph Vannoy, 106 Mich App 404; 308 NW2d 233 [1981], rev’d on other grounds 417 Mich 946; 332 NW2d 150 [1983]; MCL 750.529; MSA 28.797), and so failed to show an armed robbery. Finally, even if Sanders did describe a robbery, the prosecution completely failed to show that the police were arresting defendant for this particular robbery and not for another (unnamed and unproven) robbery. The prosecution merely presented Brantley’s testimony that the police report showed that defendant, Pegram, and a woman believed to be Hesterley were involved. In effect, the prosecution merely accused defendant of committing an armed robbery without presenting any competent evidence that such a robbery had occurred or that defendant had committed it. The prosecution then went on to speculate to the jury that this unproven armed robbery had formed the basis for the murder. Similar speculation was condemned in People v Van Wie, 17 Mich App 77; 169 NW2d 160 (1969). Because the prosecution could not factually support its accusation, it should not have been permitted to present the evidence of the arrest for armed robbery.
We conclude that admission of this evidence, combined with the trial court’s failure to acknowledge its discretion in the first issue, constitutes reversible error. Evidence of a defendant’s prior criminal activity is so inherently prejudicial that, even where it is relevant, its admission often requires reversal. People v Robinson, 417 Mich 661; 340 NW2d 631 (1983); People v Carter, 387 Mich 397; 197 NW2d 57 (1972); People v Greenway, 365 Mich 547; 114 NW2d 188 (1962); People v Deblauwe, 60 Mich App 103; 230 NW2d 328 (1975); People v Buffa, 51 Mich App 680; 216 NW2d 494 (1974); People v Budary, 22 Mich App 485; 177 NW2d 672 (1970); People v Slater, 21 Mich App 561; 175 NW2d 786 (1970), lv den 383 Mich 799 (1970); People v Camel, 11 Mich App 219; 160 NW2d 790 (1968). Here, the evidence was both irrelevant and prejudicial. People v McCarver (On Remand), 87 Mich App 12, 16; 273 NW2d 570 (1978), lv den 406 Mich 964 (1979).
The combined effect of these errors cannot be considered harmless in light of the evidence against defendant. Defendant admitted being present at the murder scene, but denied intending to kill anyone. The prosecution conceded both at trial and on appeal that the evidence against defendant was purely circumstantial. Almost all of this evidence was relevant only to the issue of defendant’s presence at the scene and could have been explained by his defense. As both parties agreed during their closing arguments, the only issue in the trial was defendant’s intent. Caroline Pegram confessed to the police that she had done the killing. She further limited defendant’s role in the killing by stating that she had originally intended only "to beat [Hesterley’s] ass” and had enlisted defendant’s help in that. According to Pegram, defendant had pushed Hesterley from the car to the ground and had hit her once, but Pegram alone had first attempted to strangle Hesterley, had fallen with her knees onto Hesterley’s head, had stabbed her with a screwdriver, hit her with the pistol, and then decided to kill Hesterley. Finally, Pegram stated that defendant had not known that she would shoot the victim. Given this testimony, we cannot say that the admission of defendant’s prior record and the trial court’s failure to exercise its discretion was harmless.
Because we are remanding this case for a new trial, we will address defendant’s remaining issues. Defendant first argues that the gun taken from his hotel room was illegally seized. After reviewing our decision on this issue in our first opinion, we once again conclude that the trial court correctly admitted the gun into evidence.
Defendant next argues that the trial court committed error by failing to include the following instruction in its premeditation instruction:
"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’.” (Footnote omitted.) People v Morrin, 31 Mich App 301, 330; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971). See, also, CJI 16:2:01(14).
The trial court instead instructed the jury:
"The third element in first-degree murder is the element of premeditation. It is kind of a difficult word. Premeditation is frequently used with idealization— weigh. You’re going to consider and wonder what to do with the case. The concept of premeditation involves more or less the same process. Did the person or persons who killed Ira Marie Hesterley plan her death? Did they weigh back and forth? Consider whether they talked about it or not as individuals or collectively, if that was the case, whether or not the killing should take place. Was it planned? Was it premeditated? Was it weighed? Was it considered? Was it deliberated? If you find the killing of Ira Marie Hesterley was premeditated in the sense I have described it, the three elements would be sufficient for a finding of first-degree murder.”
We find this instruction sufficient. People v Collins, 43 Mich App 259, 269; 204 NW2d 290 (1972), lv den 391 Mich 798 (1974), cert den 419 US 866; 95 S Ct 121; 42 L Ed 2d 103 (1974); People v Bodley, 38 Mich App 27; 195 NW2d 803 (1972), lv den 387 Mich 777 (1972).
Defendant next argues that being convicted for both first-degree murder and felony firearm violates his right against double jeopardy. However, this contention has been rejected in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dis 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979); Missouri v Hunter, 459 US 359; 103 S Ct 673; 74 L Ed 2d 535 (1983).
Defendant also argues that the felony-firearm statute violates Const 1963, art 4, § 25 by amending other statutes by implication. However, once again, this argument has been rejected. E.g., People v Jackson, 94 Mich App 24; 287 NW2d 357 (1979); Wayne County Prosecutor v Recorder’s Court Judge, 92 Mich App 433; 285 NW2d 318 (1979), lv den 408 Mich 905 (1980); People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978).
Defendant last argues that his right to confrontation was violated when, during cross-examination, Detroit Police Sergeant Gilbert Hill testified that Pegram had told him that defendant had shot Hesterley. Hill, defendant’s witness, had testified on direct examination that Pegram had admitted shooting Hesterley herself during a taped confession. Pegram then revised this statement after she was charged with the crime and instead accused defendant of the crime.
Because Pegram would have pled the Fifth Amendment, she was unavailable as a witness. Therefore, her original statement was admissible as a declaration against penal interest. MRE 804(b)(3); People v Ernest Edwards, 396 Mich 551; 242 NW2d 739; 92 ALR3d 1149 (1976). However, the subsequent statements, brought out in cross-examination, could not also be justified under this exception. Hence, this testimony was inadmissible as hearsay. We therefore do not need to address any confrontation issue. See Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980); Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968).
However, this testimony was not admitted as hearsay. Instead, it was admitted to impeach the declarant. MRE 806 states:
"When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain.”
This testimony was therefore properly admitted. However, if this same situation arises at retrial, the trial court must instruct the jury that this evidence may be used only for impeachment purposes and not as substantive evidence. Dalton v Dregge, 99 Mich 250; 58 NW 57 (1894); People v Maunausau, 60 Mich 15; 26 NW 797 (1886).
Reversed and remanded for a new trial.
Bronson, J., concurred.
Defendant did not object to Harris’s statement, which was fleeting and nonresponsive. However, when Brantley repeated the statement, defendant immediately objected. Brantley was permitted to read the police report to the jury over objection.
By itself, Harris’s testimony would not constitute reversible error. As mentioned earlier, it was nonresponsive and fleeting, and defendant did not object. However, Brantley’s testimony was objected to and was highly prejudicial. Harris’s testimony, therefore, increased the prejudice because it constituted another mention of the arrest.
For example, although defendant’s ring and watch were found by Hesterley’s body, defendant admitted having been there. Hesterley’s hair was found in the car defendant was driving. However, the car had in fact belonged to Hesterley and she had permitted defendant to use it. Ballistics evidence showed that defendant’s gun (found in his motel room when he was arrested) had fired the shots that killed Hesterley. However, defendant claims (and Pegram confessed) that Pegram had fired the shots. The prosecution presented no direct evidence disputing this contention. | [
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Per Curiam.
Plaintiffs appeal as of right from the circuit court’s order granting summary judg ment for defendant pursuant to GCR 1963, 117.2, subds (1) and (3). The trial court found that the doctrines of election of remedies and collateral estoppel barred plaintiffs’ action.
On October 11, 1972, Arthur J. LaVergne, now deceased, opened an individual savings account with the defendant. In March, 1976, the deceased was found to be incompetent by the Oakland County Probate Court. On April 8, 1976, before the appointment of a guardian, defendant changed the deceased’s individual savings account to a joint savings account, allegedly without the consent of Arthur LaVergne. The name of the deceased’s wife, Florence J. LaVergne, was added to the account. Immediately after the change in status, Florence LaVergne withdrew the entire balance of $20,217.84 from the newly formed joint savings account and deposited the sums in a separate individual savings account in her own name. Arthur LaVergne died on August 31, 1976.
On February 2, 1977, plaintiffs filed an action against Florence LaVergne to recover the funds allegedly converted from the decedent’s joint savings account. In that action, plaintiffs claimed that the proceeds from the joint savings account were improperly withdrawn by the decedent’s widow because they were deposited into a joint account only for the decedent’s convenience. Plaintiffs allegedly learned for the first time at trial that defendant bank may have improperly changed the individual status of the decedent’s account to a joint account, enabling Florence LaVergne to withdraw all of the decedent’s savings. The trial judge in that case ruled that, since Florence LaVergne had withdrawn the funds from the joint account, the funds could properly be considered a gift to her.
On April 5, 1982, plaintiffs filed the instant action against defendant, alleging that it wrongfully changed the individual status of the deceased’s savings account. Defendant filed a motion for summary judgment, claiming that plaintiffs’ original suit against Florence LaVergne in 1977 constituted an election of remedies and barred the instant action. Defendant’s motion for summary judgment was granted by the trial court. Plaintiffs’ request for rehearing on the motion was denied.
On appeal, plaintiffs argue that the trial court erred by granting summary judgment to defendant on the basis of the doctrine of election of remedies. We agree. In the recent case of Riverview Cooperative, Inc v First National Bank & Trust Co of Michigan, 417 Mich 307; 337 NW2d 225 (1983), the Supreme Court overruled its prior decision in Ielmini v Bessemer National Bank, 298 Mich 59; 298 NW2d 404 (1941), and held that the doctrine of election of remedies did not bar an action by that plaintiff against that defendant, even though the plaintiff in that case had already obtained judgment against the third-party converters who negotiated checks drawn on the plaintiff’s account while not authorized to do so. The court analyzed the election of remedies doctrine fully and found:
"We think that analysis, which indeed underlies the doctrine of election of remedies in the context of this kind of case, is seriously flawed because it rests upon an erroneous premise: the fiction that monies on deposit in a bank in an ordinary checking account and later paid out upon the demand of an unauthorized withdrawer are not the bank’s funds because, in proceeding against the converter, the depositor has impliedly asserted that they are not. The theory that they are the funds of the depositor or the funds of the bank depending upon the injured depositor’s decision to proceed first against the converter or first against the bank is a fiction unsupportable in logic or fairness.” Riverview, supra, p 317.
The Court concluded:
"The remedies, while concurrent, are consistent. There is nothing in the appellant’s effort to seek redress against the converters for the wrong done by them which is inconsistent with a subsequent effort to seek redress from the bank for its failure to honor its contractual obligations.” Riverview, supra, pp 321-322.
The Riverview case is directly applicable to the facts before us. Plaintiffs’ action against Florence LaVergne was grounded in tort. The present action is against defendant for breach of contract. These alleged wrongs are separate and distinct, yet the remedies sought are consistent. The trial court erred in granting summary judgment to defendant on the basis of election of remedies by plaintiffs.
Plaintiffs also argue that the trial court erred in finding that plaintiffs were collaterally estopped from asserting a claim against defendant. Collateral estoppel bars the relitigation of issues which have been actually determined in a prior lawsuit between parties or their privies. Darin & Armstrong v Ben Agree Co, 88 Mich App 128; 276 NW2d 869 (1979), lv den 406 Mich 1007 (1979). The Supreme Court quoted with approval the following language regarding parties and their privies:
"Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. A party in this connection is one who is 'directly interested in the subject matter, and had a right to make defense, or to control the proceedings, and to appeal from the judgment.’ A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase.” (Citations omitted.) Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 43; 191 NW2d 313 (1971), quoting Bernhard v Bank of America Natl. Trust & Savings Ass’n, 19 Cal 2d 807; 122 P2d 892 (1942).
Under the definition set forth in Howell, defendant here was neither a party nor a privy in plaintiffs’ prior action against Florence LaVergne. Defendant was not directly interested in the subject matter and had no right to make a defense in the prior action against Mrs. LaVergne for conversion of funds and was thus not a party in any sense. Defendant likewise did not acquire an interest in the subject matter through Mrs. LaVergne or through plaintiffs, the parties to the original action. Defendant having no interest in the subject matter of the first action, there was thus no mutuality of estoppel, since defendant was in no way bound by the judgment rendered in the initial action.
In addition, collateral estoppel applies only where the same ultimate issues underlying the first action are involved in the second action. Stolaruk v Dep’t of Transportation, 114 Mich App 357; 319 NW2d 581 (1982). Here the ultimate issue in the first action was not, as defendant argued, the ownership of the funds in the deceased’s bank account, but whether Florence LaVergne had wrongfully converted some $20,000 which should have been part of the deceased’s estate. The ultimate issue in the present action is whether defendant breached its contract with the deceased by allowing Mrs. LaVergne to withdraw funds from the decedent’s individual account without proper authority. The trial judge in the first action determined only that Florence LaVergne had withdrawn funds from a joint account. He made no finding as to whether the account was properly changed from an individual to a joint account.
No collateral estoppel arises under the facts of this case. The trial court erred in granting summary judgment to the defendant.
Reversed and remanded. Costs to plaintiffs. | [
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Per Curiam.
Plaintiff appeals as of right from the November 2, 1984, order and judgment of the Wayne Circuit Court which granted defendant’s motion for summary judgment under GCR 1963, 117.2(3) and awarded defendant "costs of $1,933.60.” We affirm the order and judgment in part, reverse and vacate them in part, and remand.
Plaintiff filed this declaratory judgment action under MCL 445.521 et seq.; MSA 19.856(1) et seq., an act which regulates motor vehicle dealers, distributors, and manufacturers. Plaintiff filed the action in reliance upon MCL 445.1576; MSA 19.856(36) which provides in relevant part:
(2) Before a manufacturer or distributor enters into a dealer agreement establishing or relocating a new motor vehicle dealer within a relevant market area where the same line make is represented, the manufacturer or distributor shall give written notice to each new motor vehicle dealer of the same line make in the relevant market area of its intention to establish an additional dealer or to relocate an existing dealer within that relevant market area.
(3) Within 30 days after receiving the notice provided for in subsection (2), or within 30 days after the end of any appeal procedure provided by the manufacturer or distributor, a new motor vehicle dealer may bring a declaratory judgment action in the circuit court for the county in which the new motor vehicle dealer is located to determine whether good cause exists for the establishing or relocating of a proposed new motor vehicle dealer. Once an action has been filed, the manufacturer or distributor shall not establish or relocate the proposed new motor vehicle dealer until the circuit court has rendered a decision on the matter. An action brought pursuant to this section shall be given precedence over all other civil matters on the court’s docket.
Plaintiff’s complaint alleged that plaintiff received notice of defendant’s intent to establish a new dealership and requested the circuit court to determine whether good cause existed for the establishment of the proposed dealership. In response, defendant filed a motion for accelerated judgment, claiming that plaintiff was without standing to bring the action because plaintiff was not within the statutorily defined "relevant market area.” MCL 445.1566; MSA 19.856(26) defines "relevant market area” as
the area within a radius of 6 miles of the intended site of the proposed or relocated dealer. The 6-mile distance shall be determined by measuring the distance between the nearest surveyed boundary of the existing new motor vehicle dealer’s principal place of business and the nearest surveyed boundary line of the proposed or relocated new motor vehicle dealer’s principal place of business.
On June 8, 1984, the circuit court denied the motion without prejudice.
On June 21, 1984, defendant propounded its first request for admission of facts which included a request that plaintiff admit that the distance between plaintiff’s site of business and that of the proposed dealer exceeded six miles. Plaintiff filed no response within the ten-day limit as stated under GCR 1963, 312.1. Indeed, the affidavit of defense counsel filed in the court record reveals that defendant did not receive answers to the request for admissions until October 30, 1984.
On August 8, 1984, defendant filed a motion for summary judgment under GCR 1963, 117.2(3), for lack of a genuine issue of material fact for which defendant was entitled to judgment as a matter of law. Specifically, defendant claimed that plaintiff, by failing to respond to the request for admissions, had admitted that the sites were not within a six-mile radius of each other and thus, they were not within the same "relevant market area.” According to defendant, plaintiff failed to meet the requisite jurisdictional requirements of MCL 445.1576; MSA 19.856(36). After hearing argument on September 14, 1984, the circuit court agreed and orally granted the motion. The circuit court further awarded statutory costs without specifying an amount.
Although it is not entirely clear from the court file, it appears that the proposed order prepared by defendant awarded $470 in costs to defendant. The proposed order was submitted with a notice of presentment of order for entry of judgment on September 24, 1984. On October 2, 1984, plaintiff filed its objections to the entry of judgment.
On October 19, 1984, a hearing was held on defendant’s request for costs and attorney fees. At the hearing defendant submitted a bill of costs totaling $1,568.16. Defendant claimed that it was entitled to actual attorney fees and costs for defending this "frivolous suit” under GCR 1963, 526.7(2). Defendant further claimed that it was entitled to expert fees, including preparation fees, under MCL 600.2164; MSA 27A.2164. The expert fees would cover the cost of hiring a surveyor to measure the distance between plaintiff’s site and the site of the proposed dealership. The matter was adjourned by the circuit court to give plaintiff’s attorney time to review the bill of costs and to respond to the argument raised under GCR 1963, 526.7(2).
On November 2, 1984, a final hearing was held in which defendant sought the payment of a bill of costs totaling $1,933.60. The circuit court granted the request for the entire amount of $1,933.60 for the apparent reason that plaintiff, having filed the lawsuit without measuring the distance between the sites, had an obligation to prove that the proposed dealership was within six miles of its dealership. According to the circuit court, plaintiff’s failure to establish the jurisdictional limit warranted the award. The circuit court did not refer to a specific court rule or to a specific statute when deciding the request.
Plaintiff’s first argument on appeal is that summary judgment should not have been granted because a genuine issue of fact exists, i.e., whether good cause exists for the establishment of a new dealership. We disagree.
Summary judgment was properly granted because plaintiff failed to initially show that it met the statutory requirements for filing a declaratory judgment action, i.e., that it was a new motor vehicle dealer within the relevant market area. In light of plaintiff’s failure to respond to the request for admission, the fact issue concerning the six-mile limit was properly determined adversely to plaintiff. Thus, we affirm the challenged order with respect to its ruling on the summary judgment motion.
Plaintiff next argues that the circuit court’s award of costs was made without authorization by court rule or statute. We agree.
The record reflects that the circuit court initially granted statutory costs only. However, at the persistent urging of defense counsel, the circuit court ultimately awarded the entire amount of costs and expenses described in the bill of costs of $1,933.60. Defendant contended below as it does on appeal that GCR 1963, 526.7(2) authorizes an award of reasonable attorney fees and expenses for defending this frivolous lawsuit.
GCR 1963, 526.7(2) provides:
(2) In any case where it appears to the court that an affidavit of merits made therein for the purpose of preventing a summary judgment was not máde in good faith, but was made solely for the purpose of delay, the prevailing party shall be allowed as costs the amount of the reasonable expenses which the filing of the affidavit caused him to incur, including reasonable attorney’s fees.
This subsection is explained in 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 84 as follows:
Sub-rule 117.2(3) authorizes the entry of summary judgment, on motion, when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. A motion for summary judgment on this ground must be accompanied by supporting affidavits. Sub-rule 117.3. The party against whom the motion for summary judgment is made may serve "opposing affidavits.” Sub-rule 117.3. The "opposing affidavit” seeks to establish the "merits” of the opposing party’s claim or defense, in order to forestall the entry of summary judgment, and thus was known in former practice as an "affidavit of merits.” See former Rule 30. Thus the reference in sub-rule 526.7(2) to costs for an "affidavit of merits” made in bad faith, means the "opposing affidavit” as provided in sub-rule 117.3.
If the affidavit of merits or opposing affidavit was not made in good faith, but was made solely for the purpose of delay, the prevailing party shall be allowed as costs, not only the statutory allowance of $20.00, supra, but also the amount of the reasonable expenses which the filing of the affidavit caused him to incur, including reasonable attorney’s fees. Sub-rule 526.7(2). This provision is duplicated and re-enforced by sub-rule 116.5, which is made applicable to affidavits in connection with summary judgment by sub-rule 117.3. Sub-rule 116.5 further provides that the offending party or attorney may be adjudged guilty of contempt for affidavits made in bad faith.
The former statute and court rule provided for a double motion fee as the penalty for an affidavit of merits made in bad faith. C.L. 1948, § 618.10(M.S.A. 27.990), former Rule 30(2). The new provision for the allowance as costs of the amount of reasonable expenses, including attorney’s fees, should be a more realistic deterrent. The allowance of attorney’s fees should be based upon the reasonable cost of such services in actual practice, and not upon some arbitrary schedule, if the deterrent force of the rule is to be realized.
After thoroughly reviewing the court file, we conclude that GCR 1963, 526.7(2) does not provide a basis for the award made in this case. We find no opposing affidavit by plaintiff in response to defendant’s motion for summary judgment. The only affidavit related to plaintiff that we can find is an unsigned and undated affidavit of Walter Norris, President of Century Dodge, Inc., which plaintiff has attached to its appellate brief. The court file does not contain the original of Mr. Norris’ affidavit. In any event, the circuit court did not grant the award because plaintiff filed an opposing affidavit in bad faith, but because plaintiff had failed to affirmatively show compliance with the six-mile requirement.
The general rule is that attorney fees may not be awarded unless expressly authorized by either statute or court rule. Lockhart v Lockhart, 149 Mich App 10, 13; 385 NW2d 709 (1986), and cases cited therein. Further, the power to tax costs is wholly statutory, and in the absence of statutory authority, costs are not recoverable. Brown v Dep’t of State Highways, 126 Mich App 392, 396; 337 NW2d 76 (1983), and cases cited therein. We review a decision to award or a refusal to award taxable costs and attorney fees for an abuse of discretion. Egan v Detroit, 150 Mich App 14, 28; 387 NW2d 860 (1986).
Having concluded that GCR 1963, 526.7(2) does not apply, we turn to the other court rules and statutes to determine whether the circuit court’s award is justified. GCR 1963, 111.6 authorizes a circuit court to award the reasonable expenses, including reasonable attorney fees, incurred in proving or preparing to prove or disprove a fact if it appears at trial that any fact alleged or denied by a pleading should not have been alleged and the fact is disproved or proved depending upon the circumstances. This subsection is explained by 1 Honigman & Hawkins, supra, 1984 pocket part, p 77 this way:
This provision was perpetuated through several revisions of the Court Rules, and re-numbered Rule 17 § 11 in 1945, in which form it remained until adoption of the 1963 Rules. There are no Committee Notes explaining sub-rule 111.6, but the parallel structure of the two provisions makes it clear that it was adapted from the earlier provision regarding unwarranted denials, expanded to include unwarranted allegations by a claimant. This reaffirms the original intent to impose realistic costs, including actual attorney fees, as a deterrent to bad faith pleading. Application of that objective to affirmative allegations as well as defensive pleading was a logical extension of the underlying policy.
A recent Court of Appeals decision upholds the allowance of costs for attorney fees incurred in defending against an allegation of conspiracy which was made without any basis in fact. Fredal v Forster, 1967, 9 Mich App 215; 156 NW2d 606, 617. (Rehearing denied.) Another decision declared that the sanctions of Rule 111.6 are available with respect to a hearing on a motion for accelerated judgment because it is the "functional equivalent of trial.” Minor v Michigan Educ Ass’n, 1983, 127 Mich App 196; 338 NW2d 913. The court found that the sanction of attorney fees imposed by the trial judge was improper, however, because there was no authority for imposing them for taking an unwarranted position on the law. The sanction, the court explained, was designed to compensate the injured party for the unnecessary expense of proving facts that should not have been controverted.
The policy generally favoring the award of attorney fees for unwarranted factual allegations is now re-enforced by a number of specific corollaries, including sub-rule 116.5, as to bad faith affidavits in connection with motions for accelerated judgment or summary judgment (by reference from sub-rule 117.3); sub-rule 313.3, as to improper denial of requests for admissions, and sub-rule 816.5 as to vexatious appeals. Each of these provisions expressly includes reasonable attorney fees as a part of the sanction for improper practice. (See additional provisions listed in Author’s Comments following sub-rule 526.1 Vol 3, at p 53.) If these provisions, along with sub-rule 111.6, are to achieve their stated objective, they should be liberally applied in cases where bad faith is shown, with an allowance of attorney fees realistically based on actual charges at prevailing rates. See Authors’ Comments following Rule 312, Vol 2 at p 220.
An important limitation on the recovery of attorneys’ fees under rule 111.6, however, was noted in Reppuhn v Abell, 1980, 97 Mich App 407; 296 NW2d 44. There a libel action had been dismissed by stipulation, with costs to be taxed against plaintiff. Defendant sought attorneys’ fees under the authority of rule 111.6, but the court noted that by its own terms the rule is confined to situations in which it appears "at trial” that an allegation was unwarranted.
The award is not justified by this court rule because there is no showing that the complaint was filed as a bad faith pleading. Indeed, the calculations of distance made by defendant’s expert reveal that plaintiff was extremely close to the six-mile limit.
We next turn to GCR 1963, 526.1 which provides that "costs shall be allowed as of course to the prevailing party, except when express provision therefor is made either in a statute or in these Rules, or unless the court otherwise directs, for reasons stated in writing and filed in the cause.” According to 3 Honigman & Hawkins, supra, p 49, this subsection refers to costs allowed by statute. Neither party has directed us to a specific statute which would allow recovery of the expenses and attorney fees awarded in this case. We find no statute which would apply. Thus, we conclude that the circuit court abused its discretion when it awarded attorney fees and expenses.
Defendant argued below that it was entitled to recover the costs associated with hiring its expert to calculate the distance between plaintiff’s site and the proposed dealership site. Defendant has characterized that expense as "the fees of Chrysler’s expert witness.” It appears that the expert fees would refer to the May 25, 1984, expense of $320 and the July 23, 1984, expense of $150 described in the bill of costs.
Defendant’s reliance upon Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318; 253 NW2d 748 (1977), is misplaced. That Court upheld an award of the preparation fees incurred by the prevailing parties’ expert witnesses as an item of costs under MCL 600.2164; MSA 27A.2164. Id., p 329. However, a review of that statute reveals that it is expressly inapplicable to the instant case. MCL 600.2164(3); MSA 27A.2164(3) states that the statute does not apply to "witnesses testifying to the established facts, or deductions of science, nor to any other speciñc facts, but only to witnesses testifying to matters of opinion.” Defendant’s expert witness was an engineer and land surveyor who performed services for defendant in order to establish a jurisdictional fact, i.e., compliance with the six-mile limit. Defendant’s expert was not hired to testify concerning a matter of opinion. Thus, the statute does not apply by its own terms.
Defendant offers no other authority on which the award could be based. We find no statute or court rule which would authorize an award of these expenses. Thus, we conclude that the circuit court abused its discretion when it awarded the expert witness’ fees.
Defendant is entitled to statutory fees allowed by MCL 600.2441(2); MSA 27A.2441(2). Thus, we reverse and vacate the judgment which awards costs of $1,933.60, and remand for entry of an order allowing costs as authorized under MCL 600.2441(2); MSA 27A.2441(2).
The order granting summary judgment is affirmed in part, and the order and judgment awarding costs of $1,933.60 are reversed and vacated. This case is remanded for entry of an order consistent with this opinion. No costs are allowed on appeal since neither side has prevailed in full. | [
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Shepherd, J.
Appellants Glavin appeal as of right from a jury verdict of no cause of action, specifically arguing that the trial court erred in refusing to instruct the jury on appellants’ breach of implied warranty claim. Appellants also appeal the trial court’s orders denying their motions for a new trial and for payment of half of all litigation expenses by intervenor-plaintiff Michigan Mutual Insurance Company, the workers’ compensation insurer of appellant Eugene Glavin’s employer.
Facts
Appellant Eugene Glavin was employed by Central Cartage Company as a dock freight handler. On March 2, 1978, as Eugene stood near the back of one forklift, a co-worker backed the forklift that he was driving in Eugene’s direction. While doing so, he inadvertently turned the steering wheel and struck Eugene, pinning him between the two vehicles. The driver of the forklift did not see Eugene prior to impact, nor did Eugene see him approaching.
Appellants instituted an action against appellee Baker Material Handling Corporation, the manufacturer of the forklift, alleging that the forklift was defective because it did not have certain safety devices: a beeper to signal when a forklift was backing up and a rear-view mirror. These devices were options which were offered by appellee but which had not been ordered by Central Cartage Company on the forklifts which they had purchased. The crux of appellants’ claim involved appellee’s failure to properly equip the forklift with these safety devices. At the trial, appellants’ counsel requested that the court instruct the jury on both negligence and breach of implied warranty. The court refused to give the instruction on implied warranty. After the verdict, appellants moved for a new trial based on the court’s failure to give the requested instruction. The trial court denied the motion. Appellants also argued that the workers’ compensation insurance carrier (Michigan Mutual), the intervening plaintiff, should share in the costs and expenses incurred in the third-party action against appellee. The trial court ruled that such an allocation of costs was limited to cases where recovery had been effected and denied appellants’ motion to have Michigan Mutual share the expenses and costs of an appeal.
I
Appellants argue that negligence and breach of implied warranty are distinct theories and, therefore, the trial judge should have instructed on both. Negligence, according to appellants, focuses on the reasonableness of the conduct of the manufacturer, while breach of warranty focuses on the actual defect of the product. Under an implied warranty theory, a defect is established by proof that a product is not reasonably fit for its intended, anticipated, or reasonably, foreseeable use. Elsasser v American Motors Corp, 81 Mich App 379, 384; 265 NW2d 339 (1978); Dooms v Stewart Bolling & Co, 68 Mich App 5, 14; 241 NW2d 738 (1976). Furthermore, failure to provide a safety device on a product may be considered a defect such as will support a breach of warranty claim. Antcliff v State Employees Credit Union, 95 Mich App 224, 230; 290 NW2d 420 (1980). Therefore, argue appellants, the jury in the instant case could have found the forklift defective without negligence on the part of appellee.
In Smith v ER Squibb & Sons, Inc, 405 Mich 79; 273 NW2d 476 (1979), the Supreme Court discussed the distinction between the two theories of recovery presented here by appellants:
"The distinction between the elements of negligence and breach of implied warranty is that in the former plaintiff must prove that the defect was caused by the manufacturer’s negligence, whereas under the warranty theory, plaintiff need only establish that the defect was attributable to the manufacturer, regardless of the amount of care utilized by the manufacturer.” 405 Mich 89.
In Smith, the factual issue involved was not whether the pharmaceutical product was defective (there was no intrinsic defect in the drug) but whether the manufacturer had provided adequate warnings. The Court found that, on the facts of that case, the proposed theories of negligence and breach of implied warranty involved identical facts and required proof of the same elements, because the focus was on the adequacy of the warning in both cases. The existence of a product defect and a breach of duty were, therefore, determined by the same standard: reasonable care under the circumstances. Smith, supra, pp 89-90. The trial court’s refusal in Smith to instruct on implied warranty was, as a result, not an abuse of discretion. The Court in Smith limited its opinion solely to the facts presented there and noted that, on different facts, it could be prejudicial error not to give requested implied warranty instructions. Smith, supra, p 91.
In the instant case, the negligence alleged by appellants was appellee’s failure to equip the forklift with safety back-up devices. The product defect in the forklift which resulted in a breach of the implied warranty was the lack of safety back-up devices. The mere fact that both claims rest on the absence of safety back-up devices does not require application of the holding in Smith and a finding that the trial court properly refused to instruct on both theories. Smith involved a defect-free product; the only question was whether notice was adequate. Here, two questions have been raised by appellants: whether a manufacturer was negligent and whether, regardless of the manufacturer’s negligence, a product was defective.
In Prentis v Yale Manufacturing Co, 116 Mich App 466; 323 NW2d 444 (1982), this Court found erroneous a trial court’s refusal to give a requested instruction on breach of warranty, a refusal based on the mistaken belief that the statute on products liability, MCL 600.2945 et seq.; MSA 27A.2945 et seq., had merged all former products liability theories into one single unified theory and that the jury could, therefore, only be instructed with respect to a negligence theory. The Court in Prentis ruled, however, that the breach of warranty theory had not been abolished by the statute, which essentially governed computation of damages. The Court then pointed out the potential danger to the plaintiff of instructing the jury on only a negligence theory where the plaintiff had also alleged a breach of warranty:
"The jury, which was given instructions only on a theory of negligence, found that the product was not 'defectively designed by [defendant]’. That verdict could have been based either upon a finding that there was no defect or upon a finding that, even if there was a defect, it was not caused by the manufacturer’s negligence. If the verdict was indeed based on the latter finding, a properly instructed jury could have justifiably found that the defect was attributable to the manufacturer — regardless of the amount of care utilized by the manufacturer — and returned a verdict in favor of the plaintiffs under a theory of implied warranty.” Prentis, supra, p 470. (Emphasis in original.)
This is essentially the argument advanced by appellants in the instant case and we find it convincing.
Failure to give a requested instruction which is supported by the evidence, and is a correct statement of the applicable law, constitutes error. GCR 1963, 516.6(2); Javis v Ypsilanti Bd of Ed, 393 Mich 689; 227 NW2d 543 (1975); Socha v Passino, 405 Mich 458, 466-467; 275 NW2d 243 (1979). Where the error might well have altered the result of the trial, it requires reversal. Rouse v Gross, 357 Mich 475; 98 NW2d 562 (1959).
Since it would have been possible for the jury in the instant case to conclude that the appellee manufacturer had exercised reasonable care yet had supplied a product with a defect which was attributable to the manufacturer, the jury should have been instructed on both negligence and breach of implied warranty as requested by appellants.
II
Appellants also argue that the intervenor-plaintiff, Michigan Mutual, should have been ordered to share in the costs and expenses incurred in litigating this case, even absent recovery below.
Since we are remanding for a new trial, it is not mandatory that we address this issue. However, as the issue may arise again, depending upon the outcome of the new trial, we will address it here.
This is an issue of first impression in Michigan. Other jurisdictions provide little guidance. The courts, when dealing with the sharing of the costs of recovery, generally presume recovery has been achieved. See 2A, Larson, Workmen’s Compensation Law, § 74.32(a)-(e).
Both parties cite Franges v General Motors Corp, 404 Mich 590; 274 NW2d 392 (1979), reh den 406 Mich 1103 (1979), which dealt with apportionment of recovery costs and expenses. In Franges, however, there had been a recovery. The question of apportionment where there was no recovery was not raised. Cases allocating costs and expenses have only arisen when recovery has been successful in the third-party action and are not helpful in addressing this issue.
The major obstacle to recovery of costs here, however, is the statutory language of MCL 418.827; MSA 17.237(827). The statute is clearly phrased in terms of a recovery:
"(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.
"(6) Expenses of recovery shall be the reasonable expenditures, including attorney fees, incurred in effect ing recovery. Attorney fees, unless otherwise agreed upon, shall be divided among the attorneys for the plaintiff as directed by the court. Expenses of recovery shall be apportioned by the court between the parties as their interests appear at the time of the recovery.” MCL 418.827; MSA 17.237(827). (Emphasis added.)
As the trial court correctly pointed out, appellants’ interpretation appears contrary to the language of the statute. On the face of the statute, it appears that expenses are contemplated only in the event of recovery, not for mere pursuit of recovery. This does not mean, of course, that, had the Legislature considered the question of costs of unsuccessful attempts at recovery, it would have included such a provision. However, the Court cannot second-guess what the Legislature would or should have done. Appellants’ objections are better addressed to the Legislature. Costs and expenses were properly denied by the trial court.
Conclusion
The trial court erred in refusing to give appellants’ requested instruction on implied warranty. Appellants are therefore entitled to a new trial.
The trial court did not err, however, in refusing to order the intervenor-plaintiff to share in the costs and expenses of appellants’ unsuccessful litigation. Division of costs is contemplated only where there is a recovery.
Reversed in part, affirmed in part, and remanded for a new trial.
Costs to abide the final outcome.
Aff’d 414 Mich 624; 327 NW2d 814 (1982). | [
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Cynar, P.J.
This appeal constitutes the legal residue of six consolidated class actions filed in 1970 alleging that defendants, all retail sales outlets, exacted illegal and excessive finance charges pursuant to credit sales agreements. Plaintiffs appeal as of right from an unfavorable disposition below.
Part of plaintiffs’ original cause of action was based upon the Michigan Retail Installment Sales Act (MRISA), MCL 445.851 et seq.; MSA 19.416(101) et seq., effective March 10, 1967. Section 12 of the act, MCL 445.862; MSA 19.416(112), limited time-price differentials to "1.7% of the unpaid balance per month”, and plaintiffs alleged that defendants violated that limitation by using a previous balance method in computing finance charges on their charge accounts. A more complete factual background is presented in Grigg v Robinson Furniture Co, 78 Mich App 712; 260 NW2d 898 (1977), a prior appeal in this matter.
The trial court in the original action deferred the issue of propriety of the class action format and granted partial summary judgment for plaintiff on the issue of liability. Specifically, the court held that the previous balance method violated § 12 of MRISA and that defendants were liable for the use of that method from the March 10, 1967, effective date of the act until defendants abandoned use of this method in 1971.
Abandonment of the previous balance method came about in this fashion:
"On August 11, 1970, in response to a legislative inquiry, the Attorney General released an opinion concluding that the previous balance method as then employed by the defendants and other retailers violated the maximum rate limitation in § 12 of MRISA. OAG 1969-1970, No. 4706, p 163 (August 11, 1970). The release of that opinion coincided with the filing of the first of the complaints in these consolidated actions. The Attorney General’s opinion also sparked a lawsuit in Ingham County Circuit Court by some of these defendants challenging the correctness of that opinion. Sears, Roebuck & Co v Attorney General, Ingham County Circuit Court No. 12204-C. That lawsuit was finally ended by a stipulation which (1) reached no conclusion on the legality of the previous balance method, (2) stated that the defendants’ use of that method had been in good faith, but that (3) the defendants would switch to the average daily balance method with a 30-day deferral feature as explained in fn 4, supra. The defendants switched from the previous balance method to the average daily balance method on various dates in 1971.” Grigg, supra, p 720.
On appeal, the Grigg Court disposed of the previous balance issue without addressing its merits:
"The third question posed by this appeal is whether the defendants’ use of the previous balance method between March 10, 1967, and late 1971 was in violation of MRISA. The trial judge ruled in the plaintiffs’ favor on this point. We are reluctant to express an opinion on this question because we are well satisfied with the terms of the stipulation signed by the Attorney General and several of the defendants. Were we seeking only to determine the fairest system for all parties concerned, the true average daily balance method of computation would be our choice. Because of its finance charge deferral and avoidance features, the hybrid method required by the Attorney General’s stipulation is even more favorable to customers. Our resolution of the next issue makes it unnecessary at this time to disturb the stipulated arrangement by expressing an opinion on the validity of the previous balance method under MRISA.” (Footnote omitted.) Grigg, supra, pp 727-728.
The Grigg Court reversed in part the lower court judgment because it was concerned, and legitimately so, that the costs of calculating and distributing individual damage awards could be grossly disproportionate to the size of those awards; the Court was further of the opinion that these costs would ultimately be passed on to defendants’ customers. Grigg, supra, pp 729-730. The cause was remanded for resolution of the class certification question and the "presentation of evidence concerning the potential size and administrative costs of possible damage awards”. Grigg, supra, pp 731-732.
On remand, the parties engaged in further discovery and ultimately agreed on a description of the average damage claim. Plaintiffs did not contest defendants’ evidence concerning costs associated with effecting refunds to potential class members. In an opinion issued October 19, 1981, the trial court made these findings:
"1. The number of possible claimants in this class action exceeds one million.
"2. The maximum average amount any claimant would receive is $4.50.
"3. The cost per account to determine if a claimant has paid any excess finance charge would be as follows:
Winkelman’s $78.54
Sears $50.23
Montgomery Ward $60.94
"4. That the total cost of conducting this analysis would be as follows:
Winkelman’s $8,816,386.00
Wards $21,329,000.00
Sears $52,273,750.00
"5. That in addition to these expenses there would be an enormous expense for other items in processing this claim such as notice to the claimants and attendant mailing and printing costs.
"6. That plaintiffs have indicated they are unwilling to pay the costs of notices.
"7. That the aggregate amount to be refunded to the claimants would be approximately one million dollars as indicated by the plaintiff.
"8. That the effect on this court system would be staggering.
"9. That the primary beneficiary of these proceedings would most likely be the attorneys thru fees.”
Based upon this bleak assessment, the court declined to certify the consolidated cases as class actions. The court rejected plaintiffs’ suggestion that the manageability problem could be avoided by aggregate distribution of the recovery to a charity or consumer advocacy group, a distribution format derived by analogy to the cy pres doctrine of testamentary trusts. The court further denied plaintiffs’ motion for attorney fees.
Plaintiffs’ first contention in these appeals is that the trial court should have allowed distribution of the recovery according to the fluid recovery or cy pres format. Upon due consideration, we are convinced that the court properly declined to employ this recovery mechanism.
The terms "cy pres” and "fluid recovery”, in the context of class action suits, have been employed interchangeably and embrace this central concept: "[T]hat where distribution to the class who should ideally receive a fund is impracticable or inappropriate, the distribution should be made in the 'next best’ fashion in order as closely as possible to approximate the intended disposition.” In re Folding Carton Antitrust Litigation, 557 F Supp 1091, 1108 (ND Ill, 1983). The fluid recovery mechanism seeks to avoid manageability problems by use of the following general format: (1) the amount of damages incurred by the class as a whole is determined in a single adjudication, creating a damage fund; (2) individual member claimants capable of proving valid claims obtain their share of the fund; and (3) the unclaimed portion of the fund is applied to the class’s benefit. In re Federal Sky- walk Cases, 680 F2d 1175, 1189, fn 14 (CA 8, 1982) (Heaney, J., dissenting). The third procedural characteristic above is the actual fluid recovery, and it commonly assumes one . of two forms. The remainder of the fund is either distributed through the market, "usually in the form of a reduced charge for an item the defendant previously overpriced”, or it is "given to the state to use on a project likely to be of interest to class members or, if that is not possible, for general purposes”. (Footnotes omitted.) Note, Developments in the Law — Class Actions, 89 Harv L Rev 1318, 1522 (1976). See Bebchick v Public Utilities Comm, 115 US App DC 216; 318 F2d 187, 203-204 (1963), cert den 373 US 913; 83 S Ct 1304; 10 L Ed 2d 414 (1963); West Virginia v Chas Pfizer & Co, 440 F2d 1079 (CA 2, 1971), cert den sub nom Cotier Drugs, Inc v Chas Pfizer & Co, 404 US 871; 92 S Ct 81; 30 L Ed 2d 115 (1971).
Defendants urge peremptory disposition of the issue based upon the law of the case doctrine because this Court in Grigg expressed disapproval of the fluid recovery mechanism. This is what was said in the prior appeal:
"We reject any suggestion that the computation difficulties can be avoided by employing some variation of the 'fluid class’ concept. That idea was emphatically rejected by the Second Circuit Court of Appeals in Eisen v Carlisle & Jacquelin, 479 F2d 1005 (CA 2, 1973). And while that decision does not control an interpretation of GCR 1963, 208, we are persuaded by its reasoning.” Grigg, supra, pp 729-730, fn 12.
The law of the case doctrine holds 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 Mich 428; 302 NW2d 164 (1981); Thomas Bros, Inc v Secretary of State (After Remand), 107 Mich App 805; 310 NW2d 249 (1981), lv den 417 Mich 938 (1983). In this case the Grigg Court was quite specific concerning which issues were squarely before it, and the propriety of a fluid recovery was not one of them. The Grigg footnote was therefore dicta, to which the law of the case doctrine does not apply.
We further believe that the Grigg Court was somewhat hasty in its condemnation of the fluid recovery idea. Indeed, the statement by the Grigg Court that it found Eisen’s reasoning persuasive is mysterious because the Eisen Court did not explain why it found fluid recovery offensive to due process. See Eisen, 479 F2d 1018. Fluid recovery was also rejected in Windham v American Brands, Inc, 565 F2d 59 (CA 4, 1977), but that Court merely parroted Eisen’s conclusions that the method was " 'illegal, inadmissible as a solution of the manageability problems of class actions and wholly improper’ ”. Windham, supra, p 72, citing Eisen, supra. Speculating that Eisen’s due process concerns might center around the aggregate damage determination, at least one authoritative comment has found such an argument uncompelling:
"The nature of the due process argument is not clear. Because of the constraints of substantive law, class-wide calculation of damages would be inappropriate where the class opponent has defenses that he could assert against class members on an individual basis. In the absence of such necessarily individualized inquiries, however, the class opponent hardly seems prejudiced by being restricted to only one hearing on common issues. Even though the calculation of damages might involve issues on which a hearing would ordinarily be required by due process, it has never been thought that due process required multiple hearings where there was one full and fair adjudication of the merits.” (Footnote omitted.) Note, Developments, supra, pp 1524-1525.
Because Eisen does not convince us of the existence of an inherent constitutional defect in the fluid recovery format, we are attracted to the reasoning of the Court in Simer v Rios, 661 F2d 655 (CA 7, 1981), cert den 456 US 917; 102 S Ct 1773; 72 L Ed 2d 177 (1982), which suggested an ad hoc determination of the format’s appropriateness. The Simer Court said:
"We need not adopt either of the two extreme positions — that is, whether a fluid recovery always can be used to surmount problems in the going forward of a class action or whether a fluid recovery is per se unconstitutional. Rather, we believe that a careful case-by-case analysis of use of the fluid recovery mechanism is the better approach. In this approach we focus on the various substantive policies that use of a fluid recovery would serve in the particular case. The general inquiry is whether the use of such a mechanism is consistent with the policy or policies reflected by the statute violated. This matter can be more particularized into an assessment of to what extent the statute embodies policies of deterrence, disgorgement, and compensation.” (Footnotes omitted.) Simer, supra, p 676.
This warrants a fresh consideration of MRISA, and the principal thrust of that act’s enforcement provision is clearly deterrence. Section 19 of MRISA, MCL 445.869; MSA 19.416(119), grants the attorney general or the prosecuting attorney in the county where a violation occurs the ability to seek injunctive relief. If the violation is wilful and intentional, the offender is guilty of a misdemeanor per § 17, MCL 445.867; MSA 19.416(117). Section 18 provides in part:
"Any seller who enters into any contract or agreement which does not comply with the provisions of this act or who violates any provision of this act except as a result of accidental or bona fide error is barred from the recovery of any time price differential, any official fees, delinquency or collection charge, attorney fees or court costs and the buyer shall be entitled to recover his reasonable attorney fees and court costs from the seller or his assigns.” MCL 445.868; MSA 19.416(118).
This section, preventing an overcharging seller from recovering any time-price differential, is punitive and hence a deterrent. So is the misdemeanor charge in § 17. Absent is any statutory emphasis on compensation or disgorgement. In this case, therefore, the justification for employment of the fluid recovery mode would have to be hung almost entirely on its deterrent value. This singular deterrent purpose would tip the balance in favor of fluid recovery, if at all, only "where the danger of overdeterrence or excessive punishment through private enforcement is low: for example, where the substantive law is quite clear, where deterrence of borderline conduct would not cause any serious consequences, or where good-faith violations are exempt from coverage”. Note, Developments, supra, pp 1527-1528. This is not such a case. Although no appellate court has determined the question of whether defendants were in violation of § 12 of MRISA, it has been determined that any violation was made in good faith. On this point, the Grigg Court left no room for dispute:
"The trial judge found — and the Attorney General stipulated — that the defendants’ use of the previous balance method was done in the good faith belief that it was legal in Michigan. We affirm that finding. This is not a situation like Hays v Regents of University of Michigan, 393 Mich 756; 233 NW2d 276 (1974), in which the defendant should have been alerted to the clear illegality of its practices by earlier court decisions. In the present case, the most that can be said is that there is a split of opinion among the state and Federal courts which have considered the legality of the previous balance method under statutes similar to MRISA. Contrast Haas v Pittsburgh National Bank, 526 F2d 1083 (CA 3, 1975), and Partain v First National Bank of Montgomery, 467 F2d 167 (CA 5, 1972), with Zachary v RH Macy & Co, 31 NY2d 443; 340 NYS2d 908; 293 NE2d 80 (1972); Seibert v Sears, Roebuck & Co, 45 Cal App 3d 1; 120 Cal Rptr 233 (1975); Federated Dep’t Stores, Inc v Pasco, 275 So 2d 46 (Fla App, 1973); Johnson v Sears, Roebuck & Co, 14 Ill App 3d 838; 303 NE2d 627 (1973).” Grigg, supra, p 729.
In summary, the policies of compensation and disgorgement are not applicable and weigh against fluid recovery. Simer, supra, p 677. Additionally, because defendants acted in good faith, fluid recovery may not be justified solely as a deterrent even though MRISA has a deterrent purpose. For these reasons we uphold the trial court’s refusal to invoke the fluid recovery method in this case._
Plaintiffs argue that they are entitled to an attorney fee award despite the fact that no recovery was distributed. Generally, no attorney fees may be awarded unless authorized by statute or court rule. GRP, Ltd v United States Aviation Underwriters, Inc, 70 Mich App 671; 247 NW2d 583 (1976), aff'd 402 Mich 107; 261 NW2d 707 (1978). However, under the "common fund” exception attorney fees may be awarded to a party who has created or protected a common fund for the benefit of others as well as himself. In the Matter of Attorney Fees of Kelman, Loria, Downing, Schneider & Simpson, 406 Mich 497; 280 NW2d 457 (1979); Foremost Life Ins Co v Waters (On Remand), 125 Mich App 799, 805; 337 NW2d 29 (1983). One of the requisites for a fee award is successful maintenance of the suit by plaintiff. Kelman, supra, pp 503-504, citing Mills v Electric Auto-Lite Co, 396 US 375, 391-392; 90 S Ct 616; 24 L Ed 2d 593 (1970). Since in this case there is no recovery, we do not view such a suit as successful, nor do we perceive a direct benefit to the class. We conclude that plaintiffs were not entitled to an attorney fee award.
Affirmed._
See also Grigg v Michigan National Bank, 72 Mich App 358; 249 NW2d 701 (1976), rev’d 405 Mich 148; 274 NW2d 752 (1979), a companion case.
For a brief description of this and other methods of computing finance charges, see Grigg v Robinson Furniture, supra, pp 718-719, and accompanying footnotes.
As a result of settlement agreements involving Robinson Furniture Co., E. J. Korvette and Federáis, the original six consolidated cases were reduced to three.
By suggesting that we reject a cy pres distribution merely because a testamentary trust is not involved in this appeal, defendants are playing word games with the Court. The use of the term "cy pres” indicates at best that fluid recovery is an analogue sharing common features with the cy pres trust doctrine, but in the context of class actions it is an independent concept.
This is an esoteric corner of the law, but it does not want for authoritative comment. See, e.g., Comments, Due Process and Fluid Class Recovery, 53 Or L Rev 225 (1974); Malina, Fluid Class Recovery as a Consumer Remedy in Antitrust Cases, 47 NY U L Rev 447 (1972).
Eisen was vacated and remanded by the Supreme Court, 417 US 156; 94 S Ct 2140; 40 L Ed 2d 732 (1974), but the issue concerning fluid recovery’s propriety or legality was not reached.
This statement was made in the context of a hypothetical statute showing a "deep concern” for both deterrence and disgorgement, a fortiori it applies, perhaps more forcefully, where only a deterrent intent is displayed. Note, Developments, supra.
Nor do we do so.
A fair reading of the enforcement provisions, supra, indicates that they are not fully invoked unless the perpetrator’s act was intentional and deliberate.
It is not impossible that the filing of these suits may have contributed to the cessation of the "previous balance” practice by defendants. However; such is more likely the product of the Attorney General’s involvement, beginning with GAG, 1969-1970, No 4706, p 163 (August 11, 1970), which concluded that the previous balance method violated the maximum rate limitation in § 12 of MRISA. | [
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Per Curiam.
Defendant William McMaster appeals by leave granted from a circuit court order affirming his district court jury conviction for driving with a suspended license. Defendant appeals from his conviction by arguing that the court erred in allowing into evidence a Secretary of State document which referred to his prior arrests and convictions. The second issue raised by defendant on appeal is that the court erred in failing to instruct the jury that driving without a license is a lesser included offense of driving with a suspended license.
Defendant’s license was suspended following a Secretary of State appeal hearing following the automatic suspension of his license for failure to take a Breathalyzer test. Suspension was for the period of February 14, 1984, through February 15, 1985, and notice of the suspension was sent by mailing the denial of McMaster’s appeal to his last known address. On April 23, 1984, defendant was stopped by a police officer while driving a motor vehicle and asked to present his license. Defendant produced his license and the officer, after checking and finding that defendant’s license was suspended, proceeded to arrest and charge him with driving on a suspended license, a violation of Chapter 106, § 5.62a(l) of the Troy City Code.
At trial, the city introduced a certified Secretary of State document which stated the suspended status of McMaster’s license and had attached to it a copy of the Secretary of State hearing officer’s decision as to the earlier appeal of the suspension of defendant’s driver’s license. The attachments included a sworn statement of the hearing officer that the notice of the decision had been mailed to defendant at his last known address. The court, over the objection of defendant, allowed the document into evidence, citing MRE 803(8).
At the time of instructing the jury, defendant requested that the court instruct the jury that failure to display a license on demand (a violation of Troy City Code, Chapter 106, § 5.63) was a lesser included offense of driving with a suspended license. The trial court refused to include such an instruction, ruling that the penalties of the two offenses, being identical, precluded instructing the jury that no license in possession was a lesser included offense of driving on a suspended license.
Defendant was found guilty of the offense of driving with a suspended license and was sentenced to serve fifteen days in jail and to pay a fine of $100. Following the affirmance of McMaster’s conviction by the circuit court, this Court granted defendant leave to appeal on April 15, 1985.
Was the admission of the Secretary of State document which included reference to defendant’s prior arrests and convictions error?
Defendant argued at trial that the Secretary of State document is inadmissible as hearsay. The trial court overruled defendant’s objections and allowed the document into evidence, as an exception to the hearsay rule under MRE 803(8). On appeal, defendant has raised the issue of the prejudicial effect of allowing the jury to see evidence of his prior convictions. Failure to object at trial to the admission of evidence constitutes a waiver of the appellate challenge to the evidence. Taylor v Lowe, 372 Mich 282; 126 NW2d 104 (1964). This rule applies even though there is an objection at trial to the admission of the evidence on grounds other than those stated on appeal. "Evidentiary objections must be specific and state the precise ground or grounds for the objection. Failure to state the proper reason precludes appellate review unless there is manifest injustice. MRE 103(a)(1).” People v Watts, 145 Mich App 760, 764; 378 NW2d 787 (1985), lv den 424 Mich 889 (1986).
It is the defendant’s burden to show affirmatively that he was denied a fair trial by the admission of the Secretary of State document. People v Chartrand, 73 Mich App 645; 252 NW2d 569 (1977), lv den 400 Mich 848 (1977). Defendant argues that the fact that the jury deliberated for more than two hours manifests the harmful error of admitting this document. The Court finds this argument to be unsupported by any evidence and cannot therefore conclude that the length of time a particular jury takes to deliberate is of any consequence in determining error. Furthermore, defendant himself apprised the jury of his prior confrontations with the law enforcement system. Under these circumstances, manifest injustice has not been shown to exist with respect to admission of this document into evidence.
Defendant next argues that evidence of prior offenses is only admissible to show a defendant’s motive, intent, scheme, plan or system, or lack of mistake or accident. MCL 768.27; MSA 28.1050. However, MRE 404(b) supersedes the statute and provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime [sic], wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.
MRE 404(b) absolutely bars the admission of prior bad acts when the only purpose of the evidence is to prove the defendant’s criminal character. The rule also provides a nonexclusive list of when a defendant’s bad acts are admissible. The general rule is that evidence of other crimes is inadmissible because it is irrelevant to a defendant’s guilt but increases the chances of conviction because it tends to depict the defendant as an habitual criminal. An examination of the purpose for admitting the Secretary of State document is crucial.
Whenever a question is made upon the admission of evidence, it is indispensable to consider the object for which it is produced, and the point intended to be established by it. . . . It frequently happens that an item of proof is plainly relevant and proper for one purpose, while wholly inadmissible for another, which it would naturally tend to establish. And when this occurs the evidence, when offered for the legal purpose, can no more be excluded on the ground of its aptitude to show the unauthorized fact, than its admission to prove such unauthorized fact can be justified on the ground of its aptness to prove another fact legally provable under the issue. [People v Doyle, 21 Mich 221 (1870).]
The purpose of the Secretary of State document was twofold: (1) to show that McMaster’s license was suspended on April 23, 1984, and (2) to show that McMaster was notified of his suspension as prescribed by statute. To prove the offense charged, the prosecution would necessarily have to demonstrate that defendant’s license was in fact suspended and that he had been notified of that suspension in compliance with provisions of Chapter 106, § 5.62a of the Troy City Code and the comparable state statute, MCL 257.311; MSA 9.2011.
At trial, defendant argued that he was unaware that his license had been suspended. Assuming that only evidence admitted for purposes listed in MRE 404(b) is permissible, the Secretary of State document was properly admitted to show that defendant’s license was suspended and that defendant had knowledge of such suspension. Although defendant alleged that he did not have knowledge of the license suspension, the jury found the evidence of the prosecution more credible than defendant’s testimony on this issue and found defendant guilty of driving with a suspended license.
Here, the record does not reflect that the trial judge exercised his discretion in weighing the probative value of the evidence against the potential prejudicial effect of such admission, since no objection on this basis was raised at trial. The trial court is not required to apply the balancing test where no proper objection to the evidence has been made, People v Florida, 61 Mich App 653; 233 NW2d 127 (1977), lv den 394 Mich 830 (1975), as "[w]here the trial judge’s discretion has not been invoked, there can be no abuse of that discretion, and consequently no error.” People v Jones, 44 Mich App 633, 638; 205 NW2d 611 (1973). Absent a showing of manifest injustice, there can be no reversal. People v Hudgins, 125 Mich App 140; 336 NW2d 241 (1983).
Here, the defense sought to inject evidence regarding McMaster’s prior arrest as part of the trial strategy. The jury was repeatedly informed of defendant’s prior offenses by defendant’s own testimony and argument. Where a defendant raises the issue of his prior bad acts, he has waived any claim of error. See People v Stanton, 97 Mich App 453; 296 NW2d 70 (1980); People v Williams, 84 Mich App 226; 269 NW2d 535 (1978), lv den 409 Mich 872 (1980). Defendant has waived his right to claim error in the admission of the Secretary of State document by his failure to enter the proper objection at trial and by his voluntary injection of the issue of his prior arrests into the trial. Even if the issue had been properly preserved the document was properly admissible as material and competent proof of the elements of the offense charged.
Was McMasters denied a fair trial because the jury was not instructed that failure to present a license on demand is a lesser included offense of driving with a suspended license?
Defendant asserts that driving without a license is a cognate lesser included offense of driving on a suspended license. To determine whether the trial court erred in failing to so instruct the jury, an examination of the law of lesser included offenses is necessary.
The guidelines set forth in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), set forth certain elements necessary for a qualification as a lesser included offense: (1) the lesser offense must be in the same class or category or closely related so as to give notice to the defendant; (2) the lesser and greater offense must demonstrate overlapping elements and common statutory purpose; (3) the evidence must be examined to determine whether it would support a conviction of the lesser offense; and (4) the instructions to the jury on lesser included offenses must recognize both prosecution and defense theories of the case.
In this instance, defendant is charged with violation of Chapter 106, § 5.62a of the Troy City Code, which is analogous to MCL 257.904 et seq.; MSA 9.2604 et seq., and which provides:
(1) A person whose operator’s or chauffeur’s license or registration certificate has been suspended or revoked and who has been notified, as provided in section 212 of the act, of the suspension or revocation . . . and who drives a motor vehicle on the highways of this state . . . while the license or registration certificate is suspended or revoked is guilty of a misdemeanor and, upon conviction, shall... be punished by imprisonment for a period of not less than 3, but not more than 90, says [sic] and, in addition, a fine of not more than $100.00 may be imposed.
(4) The department, upon receiving a record of conviction of a person upon a charge of unlawful operation of a motor vehicle while the license of the person is suspended, revoked or denied, . . . shall immediately extend the period of the first suspension or revocation of an additional like period or, if a period has not been determined, then for not less than 30 days, but not more than 1 year.
Thus, the elements of driving on a suspended license are: (1) that the defendant’s license has been suspended; (2) that the defendant has been notified of the suspension; and (3) that the defendant operated a motor vehicle on a public highway while his license was suspended.
Section 5.63 of the Troy City Code, analogous to MCL 257.311; MSA 9.2011, reads as follows:
(1) Every driver shall have his or her operator’s or chauffeur’s license in his or her immediate possession at all times when driving a motor vehicle and shall display the license on demand of any police officer.
(2) The violation of this section is punishable as a misdemeanor.
A violation of this section is accomplished by either (1) failing to possess a license while driving a motor vehicle or (2) failing to display the license on demand of any police officer.
Defendant McMasters has contended that a violation of § 5.63 is a lesser included offense of § 5.62a. A person may be in violation of § 5.63 by failing to have his or her license in possession while driving but also by failing (or refusing) to produce the license on demand. Section 5.62a is intended to punish drivers who ignore the restrictions of a suspended or revoked license and proceed to drive regardless of those restrictions. The only common element of the two sections is that of driving a motor vehicle. Furthermore, there is no inherent relationship between the two such that they would protect the same interests. People v Stephens, 416 Mich 252; 330 NW2d 675 (1982). Driving on a suspended license carries a relatively severe punishment of a mandatory three-day jail term and extension of the suspension. This punishment is intended to inhibit such persons from continuing to drive. Section 5.63 contemplates punishment of a milder form, and is intended for punishment of licensed drivers and also of persons who also have never obtained a license. It is an extension or continuation of the licensing requirements enacted to insure safe and proper operation of motor vehicles on the highways by requiring persons who wish to drive to demonstrate certain capacities such as training in operation of a vehicle, knowledge of traffic laws, and certain physical and mental abilities. One possessing and showing a license could be identified as a person who has completed at least those initial requirements and is indicative of only those capacities. Merely carrying a license does not prove that one’s own license is not suspended. The two provisions of the code are each derived with a different purpose in mind and are not inherently related by protecting the same interest.
Secondarily, to require the instruction as a lesser included offense, the evidence must be adduced to support a conviction of the lesser offense. People v Jones, supra.
In determining whether the instruction should be given, the trial court should consider whether, if the defendant had been originally charged only on the lesser offense, the evidence adduced at trial would have supported a guilty verdict on that charge. If it would have, the requested instruction must be given. [People v Chamblis, 395 Mich 408, 423; 236 NW2d 473 (1975).]
The Supreme Court has recently qualified this statement by stating that the requested misdemeanor instruction must be "supported by a rational view of the evidence adduced at trial.” People v Stephens, supra, pp 252, 255.
Here the evidence was undisputed that McMaster had possession of his license on April 23, 1984, and that he displayed it to Officer Livingston on demand. Under these circumstances, it would be impossible for the jury to find McMaster guilty of a violation of § 5.63. Accordingly, an instruction as to § 5.63 was properly refused. Conclusion.
In summary, the trial court did not err in admitting the Secretary of State document into evidence. The trial court properly refused to instruct the jury that driving without a driver’s license in one’s possession was a cognate lesser included offense of driving on a suspended license. The trial court’s decision is affirmed and, noting defendant’s motion to remand because of the trial court’s having subsequently exercised its jurisdiction to set aside the suspension of his driver’s license, the case is remanded for further proceedings consistent herewith.
Affirmed and remanded for further proceedings. | [
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After Remand
Before: Bronson, P.J., and Cynar and Shepherd, JJ.
Per Curiam.
Defendant appeals as of right from his plea-based conviction as a third-time habitual offender, MCL 769.11; MSA 28.1083. Both claims of error raised by defendant here relate to sentencing.
Defendant was first convicted on January 23, 1979, of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and of being a fourth-time felony offender, MCL 769.12; MSA 28.1084. Defendant’s flat ten-year sentence was amended by order of this Court on April 30, 1981, to a term of from six years and eight months to ten years. Upon subsequent consideration of the substantive issues raised by defendant in his appeal, this Court reversed only defendant’s habitual offender violation. 111 Mich App 478; 314 NW2d 657 (1981). The Michigan Supreme Court denied leave to appeal to both parties. 413 Mich 879 (1982). Defendant returned to Ingham County Circuit Court and pled guilty before a visiting judge as a third-time felony offender on September 27, 1982. On October 20, 1982, he was sentenced by a different visiting judge to a prison term of from 10 to 20 years.
Defendant’s first claim on appeal is that the sentencing judge improperly enhanced defendant’s sentence. In North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), the United States Supreme Court held that no clause in the constitution bars the imposition of a more severe sentence upon reconviction of a defendant. The only two due process limitations on resentencing are that (1) vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the second sentence he receives, and (2) defendants who wish to exercise the right to. appeal must be freed of the apprehension of retaliatory motivation. People v Jones, 403 Mich 527; 271 NW2d 515 (1978), cert den 440 US 951; 99 S Ct 1432; 59 L Ed 2d 640 (1979). The reviewing court can determine whether or not vindictiveness played a role at resentencing only if the resentencing judge affirmatively states on the record his reasons for imposing a higher sentence. The reasons must be "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding”. Pearce, supra, 395 US 726.
In the instant case, the sentencing judge affirmatively stated his reasons for increasing defendant’s sentence and specifically indicated that defendant’s misconduct after the original sentencing weighed heavily on his mind. When defendant asked on what grounds the judge based his decision to sentence defendant to a longer term of imprisonment, the judge replied:
’’The Court: I based it on the fact that in totally looking at your criminal history, you’re charged with being a habitual criminal in this case, and it’s based on the fact that your crimes have gotten worse. And, certainly you left a residential program you were in, that impressed me also. There’s no reason that that contact could not have been made by telephone at 9:00 o’clock in the morning. You did not see your attorney. There was no reason for you to leave that home at 4:30, and I think that is a very direct violation of your status as an inmate and I think it was a very knowing decision you made when you left under those circumstances, and I see no excuse for it. Now that weighs heavily on my mind.
"You had no appointment with your attorney. There’s no verification that you even attempted to see your attorney that morning and there’s no reason for you to be out, and that weighed very heavily. You had a chance to be out. You were in a residential center, and as far as the court is concerned you blew it, and I’m considering that.
’’Defendant: That’s the basis for the increase?
’’The Court: That is part of the basis for the increased sentence, along with your overall criminal behavior since the sixties.”
The record clearly reveals that vindictiveness played no role in the judge’s sentencing decision. Therefore, the imposition of a higher sentence did not violate defendant’s right to due process.
Defendant’s second claim on appeal is that he is entitled to resentencing by the same judge who took his guilty plea because he was not sentenced by that judge. We disagree.
Both the plea-taking and the sentencing judges were visiting circuit court judges. The plea-taking judge was assigned to the circuit court for the month of September. Defendant was sentenced in October, during which month a different visiting judge was assigned.
A defendant is entitled to be sentenced before the judge who accepts his plea provided that judge is reasonably available. See People v Clark, 408 Mich 945 (1980); People v Clemons, 407 Mich 939; 291 NW2d 927 (1979). We find that, under the circumstances of this case, the plea-taking judge was not reasonably available to sentence defendant since he no longer had the authority to act as a circuit judge in that circuit at the time of sentencing. Defendant is therefore not entitled to resentencing by the judge who accepted his guilty plea.
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Per Curiam.
This appeal involves a church election. Reverend T. Cortez Spann, the defendant, was pastor of the Beulah Missionary Baptist Church in the City of Westland. A dispute arose at the church, and Reverend Spann’s followers voted to remove certain deacons and a trustee from their positions as church officers. One of the removed deacons sponsored a meeting at which a vote was taken to remove Reverend Spann as pastor. The church, through its officers, sued in Wayne County Circuit Court to enjoin Reverend Spann from occupying the church pulpit and to recover church assets from him. During the show cause hearing, the court ordered a monitored election to determine whether Reverend Spann would remain as pastor of the church.
To prepare for the election, the parties, a court-appointed independent monitor, and two church employees were to compile a list of church members and mail notices of election to them. Reverend Spann did not cooperate, however, and the final list was compiled without his participation. As a result, some names which appeared on preliminary lists were not included on the final list because those compiling the list were unable to find corresponding mailing addresses.
The election was held on June 12, 1982. Again, Reverend Spann failed to participate by keeping his attorney from attending the election to help monitor it. The unadjusted vote was 149 to 146 to dismiss Reverend Spann.
On June 21, 1982, the parties and the independent monitor met in circuit court to report the election results. At this hearing Reverend Spann raised preliminary objections to the election process. According to the defendant, 16 people were refused ballots because their names did not appear on the verification list at the polling place. They filed affidavits of church membership. Additionally, 14 voters were alleged to be ineligible. Although their names appeared on the voter lists, it was argued that they were members of other churches.
Four of the 16 omitted members were on the court-approved eligibility list but were inadvertently deleted from the list at the polling place. The court ruled them eligible. They had not been allowed to vote on June 12, on either the regular or sealed ballots. The defendant alleged that four more church members were on a preliminary list but were deleted from the final list because their addresses were unknown. The independent monitor’s records did not show that these four came to the polling place to vote. Thus, the court found them ineligible.
The independent monitor presented an additional five uncounted sealed votes. Three names were clearly on the list; two were on the list but had been crossed out. There was no dispute about counting the three votes. As to the remaining two, the court determined they were eligible to vote because they appeared on the list. The judge indicated that he was not going to try to determine what various markings on the final list were intended to mean. The five sealed ballots were counted on the record; all were votes to dismiss Reverend Spann. The adjusted election results now stood at 154 to 146, against Reverend Spann.
Because the four omitted voters would not be able to alter the result of the election, the parties stipulated for the purposes of the hearing that the four voters would cast ballots in Reverend Spann’s favor. The court ruled, then, that the church membership had voted 154 to 150 . to dismiss Reverend Spann as pastor.
Reverend Spann raised three objections to the results at the hearing. First, he wished to prove that 14 voters were ineligible. He sought to show that they were members of other churches, not of Beulah Missionary Baptist Church. The court ruled that it would not take additional evidence on the eligibility of those whose names appeared on the eligibility list. Second, Reverend Spann alleged that some people were turned away from the polling place and that the independent monitor’s records erroneously showed that they had not appeared. The court ruled it would rely on the monitor’s records as accurate. Third, the defendant alleged that an eligible voter who identified herself by her middle and last names was not allowed to vote. The eligibility list referred to her by first and last names. The independent monitor concluded that he could not verify her identity, and the two church employees assisting in the election agreed. The court accepted the monitor’s determination.
On appeal, Reverend Spann argues that the circuit court abused its discretion by refusing to hear evidence that 12 eligible voters were not allowed to vote and 11 ineligible voters did vote. Ours is an evidentiary issue. The propriety of a court-ordered church election is not before us, and we offer no opinion on that question. Additionally, we must note that the law of political elections is not applicable here. The rights involved in political elections are preserved by the constitution. See Const 1963, art 2. The procedure for electing pastors at Beulah Missionary Baptist Church is more contractual in nature. 66 Am Jur 2d, Religious Societies, § 29, pp 780-781. The members of the church have agreed to certain elections bylaws and to use the Hiscox Guide for Baptist Churches, known as the Hiscox Manual.
The legal question is whether the court abused its discretion by refusing to allow additional evi dence on the eligibility of voters. We hold that it did not abuse its discretion.
The parties had a continuing obligation to cooperate in the election preparations. Reverend Spann breached this obligation by failing to participate in compiling what he knew would be a binding voter eligibility list. He now challenges the uncertainty of the voter list, yet it was Reverend Spann’s defiance which created the uncertainty. He cannot sit back and harbor error to be used as grounds for appeal in the event he lost the election. Cf. People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969) (failure to raise timely motion in criminal trial). The court properly ordered the parties to compile a list of eligible voters not only to assure a fair election, but also to assure that any eligibility questions be resolved before the election was held. In an emotionally charged atmosphere involving strongly held religious beliefs, the court wished to bring finality to the dispute so the church could return to some semblance of normal operations. Of course, finality is not an end in itself, and the court cannot violate the parties’ rights for the sake of finality. But, consistent with all the court’s concerns, a party certainly can be estopped from challenging the consequences of his own inaction. By his inaction at a time when action was expected, Reverend Spann has acquiesced in the eligibility list. This serves as an estoppel. Cf. Thompson v Enz, 385 Mich 103, 108; 188 NW2d 579 (1971); Oliphant v Frazho, 381 Mich 630, 638; 167 NW2d 280 (1969).
We note that the church and the court did not take unfair advantage of Reverend Spann’s acqui escence. The court corrected certain discrepancies in the eligibility list, as shown by its careful consideration and allowance of some disputed votes. We hold that the court did not abuse its discretion when it relied on the independent monitor’s recommendations and refused to take additional evidence on the accuracy of the voter list.
Affirmed.
The 12 "eligibles” are those remaining of 16 after 4 votes were allowed. The record and briefs do not disclose how the list of 14 "ineligibles” mentioned at the June 21 hearing has been reduced to 11 in the Court of Appeals. In letters from pastors of other churches, 15 names are listed as members of the other churches. Of these, four are marked by asterisks as "challenged voters”. The source or meaning of these notations is not clear from the record.
Prior to the election Reverend Spann petitioned this Court for leave to appeal and moved for a stay of circuit court proceedings, arguing that the court lacked jurisdiction over ecclesiastical matters not involving property rights. A panel of this Court voted 2 to 1 to deny the application for leave and the motion for stay. Beulah Missionary Baptist Church v Spann (Docket No. 64903, unpublished order of June 11, 1982). The propriety of an election has not been briefed in this appeal.
Because of factional disputes before the court’s involvement, police officers were forced to break up fights and remove people from membership meetings and Sunday services. Security guards were hired to patrol the polling place during the court-ordered election. | [
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Per Curiam.
Defendant, City of Riverview, appeals as of right from a Wayne Circuit Court jury verdict awarding plaintiffs damages for injuries plaintiff Leonard Shaffner sustained when he was struck by a golf cart.
Leonard Shaffner was injured while he was playing golf on a golf course owned by the City of Riverview in the company of three other men, including David Branchick. After the men completed the first hole, they drove their golf carts to the second tee. Branchick parked his cart about five feet behind plaintiff’s.
While plaintiff was standing behind his cart, Branchick saw his cart start to roll forward towards plaintiff. Branchick ran to the cart, jumped in it, and applied what he believed to be the brake. Unfortunately, Branchick actually hit the accelerator and the cart lunged forward, striking plaintiff’s cart and pinning plaintiff between the two bumpers. Plaintiff’s leg was severely injured as a result of the collision.
Plaintiffs filed the instant action, claiming negligence and breach of implied warranties by the City of Riverview as lessee of the golf carts and owner of the golf course. Plaintiffs also claimed negligence and breach of implied warranties by Michigan Golf Cars, Inc. (Golf Cars). Finally, plaintiffs claimed negligence by Branchick. The city filed a third-party complaint against Golf Cars for indemnification. Golf Cars and Branchick settled with plaintiffs prior to trial for $25,000 and $21,-000 respectively. They were thereupon granted releases from direct liability by plaintiffs. The case continued to trial with the city as the only princi pal defendant and Golf Cars as the third-party defendant. The jury found both negligence and a breach of implied warranties on the part of the city and awarded damages totalling $163,200. The trial court found no indemnity as a matter of law. The court credited the city with the $46,000 settlement and awarded judgment in the amount of $117,200.
Initially, the city argues that the parties did not enter the releases in good faith and, therefore, Branchick and Golf Cars, as joint tortfeasors, are liable to the city for contribution. In support of its position, the city relies on the relatively small amounts of the settlements in comparison to the severity of the injury and the size of the jury award as well as the relative negligence of the parties.
The city’s claim for contribution, as well as Golf Cars’ defense thereof, rests upon the following provision of the Revised Judicature Act:
Sec. 2925d. When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide.
(b) It reduces the claim against the other tortfeasors to the extent of any amount stipulated by the release or the covenant or to the extent of the amount of the consideration paid for it, whichever amount is the greater.
(c) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor. [MCL 600.2925d; MSA 27.2925(4).]
Although "good faith” is not defined within the contribution statute, the Supreme Court has previously considered the meaning of the term within the context of the Uniform Narcotic Drug Act, MCL 335.57; MSA 18.1077. (Repealed by 1971 PA 196).
"Good faith” consistently has been deemed a standard measuring the state of mind and perception of the defendant—a measure of honest belief and intention. See, e.g., People v Averill, 179 Mich 224; 146 NW 189 (1914); and People v Rice, 161 Mich 657; 126 NW 981 (1910). The Oxford English Dictionary, Vol 5, p 32, defines good faith as: "honesty of intention in entering into engagements”. Even the Uniform Commercial Code, operating in a commercial law context, defines "good faith” generally as "honesty in fact in the conduct or transaction concerned”. MCL 440.1201(19); MSA 19.1201(19). [People v Downes, 394 Mich 17, 26; 228 NW2d 212 (1975).]
The city points to the size of the settlements in relation to the fault of the parties as evidence of bad faith. However, while there is a "reasonable relationship” between comparative negligence principles and contribution, comparative negligence principles do not control the contributions of settling tortfeasors under MCL 600.2925d; MSA 27A.2925(4). See Mayhew v Berrien Co Rd Comm, 414 Mich 399, 402; 326 NW2d 366 (1982); Bacon v State Highways Dep't 115 Mich App 382; 320 NW2d 681 (1982). However, even if we could determine with accuracy the fault of the settling parties, we do not believe that the settlements executed in the present case were so grossly disparate that they established bad faith as a matter of law.
We are similarly unpersuaded that the other factors alleged by the city establish bad faith. The transcript of the July 27, 1984, settlement hearing indicates that the city participated in extensive settlement negotiations and conferences. There is no support on the record that the parties used the settlement negotiations as a means to manipulate the city’s liability. The record is equally devoid of any other evidence which would permit either this Court or the lower court to make a factual determination of bad faith.
Based on the facts before us, we are unable to conclude that the releases were not executed in good faith. Accordingly, the court did not err in denying the city’s motion for contribution.
The city also argues that it was entitled to express contractual indemnity, implied contractual indemnity and common-law indemnity from third-party defendant, Golf Cars. The city bases its claim for express contractual indemnity on the following provision contained in the parties’ contract:
7. Risks of Loss and Insurance. The Lessor agrees to keep all of the said property insured for fire, theft, combined additional coverage and $150.00 deductible collision insurance and liability insurance in minimum limits on [sic] One Hundred Thousand ($100,000.00) Dollars each person, Three Hundred Thousand ($300,000.00) Dollars to each occurrance [sic] for bodily injury and Twenty-Five Thousand ($25,000.00) Dollars property damage liability. Lessee agrees to be responsible for the deductible for damage caused by players, employers and vandals.
At the conclusion of the trial, the court found that there was no indemnification. Unfortunately, the city has failed to file the transcripts containing the trial court’s findings on the express indemnification issue, and thus we are unable to determine the basis for the trial court’s ruling. Nevertheless, after reviewing the above provision, we agree that it is not a provision for contractual indemnification.
There are several well established rules of construction of indemnity contracts. An indemnity contract is construed in accordance with the rules for the construction of contracts generally. The cardinal rule in the construction of indemnity contracts is to enforce them so as to effectuate the intentions of the parties. Intention is determined by considering not only the language of the contract but also the circumstances surrounding the contract, including the situation of the parties. Indemnity contracts are construed most strictly against the party who drafts them and against the party who is the indemnitee. Pritts v JI Case Co, 108 Mich App 22, 29; 310 NW2d 261 (1981). [Chrysler Corp v Brencal Contractors Inc, 146 Mich App 766, 771; 381 NW2d 814 (1985).]
It is an equally well established rule of contract interpretation that contracts which are unambiguous must be enforced as written. Emmons v Easter, 62 Mich App 226, 231; 233 NW2d 239 (1975). In this case, the contract between the city and Golf Cars does not expressly mention indemnification. Moreover, the contract provision unambiguously calls only for Golf Cars, as lessor, to purchase insurance. We also note that Douglas Wood, a part-owner of Golf Cars, testified that the contract provision was not intended as a contract for indemnification, and that the city has failed to point out any contrary interpretation. When the above-stated rules of contract interpretation are applied to these facts, we are unable to conclude that the parties intended the contract to include indemnification.
We are likewise unable to find that either an implied contract to indemnify existed or that the city was entitled to common-law indemnity. Both common-law indemnity and implied contractual indemnity require that the person seeking indemnification must prove freedom from active negligence. Skinner v D-M-E Corp, 124 Mich App 580, 585; 335 NW2d 90 (1983); Peeples v Detroit, 99 Mich App 285, 292; 297 NW2d 839 (1980).
The city argues that the court, in instructing the jury, failed to distinguish between active and passive negligence and therefore that the jury was not able to properly decide the issues of common-law or implied contractual indemnification. Unfortunately, despite our request, the city has failed to supply the transcript containing the jury instructions. Accordingly, we are unable to review the propriety of the instructions or the city’s objections to either the instructions or verdict form. Since the jury verdict states only that the city was negligent, we cannot conclude that the city proved freedom from personal fault so as to entitle it to either common-law or implied contractual indemnification. Based on the record before us, we find that the trial court properly rejected the city’s claims for indemnification.
Because the city has failed to file the necessary transcripts, we are unable to review its claim that the verdict form or jury instructions were improper.
The city’s final claim is that the court erred in admitting the deposition testimony of Dr. Charles Nagler, plaintiffs expert witness. The basis of the city’s claim is that Nagler was not qualified to offer expert testimony regarding golf course design and golf carts. A witness may be qualified to testify as an expert based on his or her knowledge, skill, experience, training, or education. MRE 702. Whether a witness is qualified to testify as an expert is a matter within the discretion of the trial court. Strzelecki v Blaser’s Lakeside Industries of Rice Lake, Inc, 133 Mich App 191, 198; 348 NW2d 311 (1984).
Dr. Nagler testified that he was a consultant/ engineer. His area of expertise was accident reconstruction pertaining to on- and off-road vehicles, including golf carts. In preparation for the case, Nagler reviewed several depositions, photographs of the golf carts, and sat in and personally examined the golf carts, and visited the golf course where the accident occurred. Nagler testified regarding the design of the golf carts and the danger posed by parking the carts on designated areas. Contrary to the city’s contention, Nagler did not testify to the general design of the course or to the feasibility of alternative golf course design.
In view of Nagler’s experience in accident reconstruction, the court did not abuse its discretion in admitting Nagler’s testimony. There was sufficient evidence to establish that Nagler had the necessary expertise to evaluate both the design of the golf carts and the dangers posed by their use. Moreover, we agree with the trial court that if the city felt Nagler’s qualifications were inadequate, it should have requested further voir dire. Given the nature of the objection, the issue could have been readily resolved at the deposition.
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Per Curiam.
Appellant law firm appeals by right the trial court’s order denying appellant the right to assert a claim against appellee receiver, for legal services rendered. We reverse and remand.
The legal services in question were rendered during the course of litigation which led to the dissolution of the ecclesiastical corporation formed by the individual defendants. Appellant represented these defendants in their capacity as officers of the corporation. Nonetheless, the trial court found that appellant’s services accrued solely to the benefit of the individual defendants, and not to the dissolved corporation itself. The court reasoned that the dissolved corporation was never a bona fide church, but instead merely a financial arrangement used by defendants as a subterfuge to defraud plaintiffs in certain transactions. Thus, the court concluded, appellant’s legal work accrued solely to the benefit of the individual defendants, and its cost should not be chargeable to the receiver as if there had been a bona fide corporation or any noticeable benefit to such a corporation.
We believe that the trial court’s ruling is inconsistent with the facts set forth in the record. Defendants were undeniably officers of the corporation, and they retained appellant not to represent their individual interests, but primarily to defend the original action against the corporation itself, and to oppose dissolution and receivership. The court’s own order dissolving the corporation implicitly acknowledges that the individual defen dants were sued primarily in their corporate capacity: the court referred to them as "defendant officers of the corporation”. We conclude that appellant was in fact representing the corporation, and that the trial court erred in characterizing appellant’s work as having been solely on behalf of individual defendants.
The question remains whether appellant, acting as a creditor of the corporation, may properly file a claim against the receiver. In order to resolve this question, the Court must examine the language of the trial court’s original order appointing a receiver.
"The receiver * * * shall take possession * * * of all the properties * * *. The proceeds of all such properties shall be used to pay all lawful claims against said corporation. All persons * * * who have conveyed, donated or contributed substantially to the funds or property of said corporation * * * shall be entitled to prove their claims thereunder.”
The language of the foregoing order appointing a receiver and authorizing claims is broad and unqualified. Consistent with traditional notions of receivership, we interpret this order to permit all creditors of the dissolved corporation to prove their claims against the receivership. In this regard, we note the well-established rule that a receiver has the duty of administering the assets of the receivership for the benefit of all of that estate’s creditors. 19 Mich Law & Practice, Receivers, § 53, p 390.
More specifically, we note that, where an application has been made to appoint a receiver, attorney fees and expenses which have been incurred in a good faith effort to oppose dissolution and the appointment of a receiver may become a valid claim against the receiver. 66 Am Jur 2d, Receivers, §285, p 103; Anno, 89 ALR 1531. The Supreme Court has upheld a claim for attorney fees where the attorney represented himself and others in an effort to oppose dissolution of a corporation under a leasehold trust mortgage. In re Dissolution of Detroit Metropolitan Corp, 289 Mich 358, 379-380; 286 NW 646 (1939). Accord, Magnusson v American Allied Ins Co, 282 Minn 287; 164 NW2d 867 (1969); McConnell v All-Coverage Ins Exchange Automobile & Fire, 229 Cal App 2d 735; 40 Cal Rptr 587 (1964).
We are mindful of the equities favoring plaintiffappellees. The corporation was dissolved because it was no longer fulfilling its legitimate purpose and was being used as a means to defraud plaintiffs of property which had rightfully belonged to them. From plaintiffs’ standpoint, it seems somewhat unfair that the corporation’s legal fees would be paid from the pool of property which the court sought to preserve for plaintiffs. Each plaintiff’s share of entitlement to receivership proceeds could be measurably reduced by any order allowing appellant’s claim for fees.
On the other hand, the equities favoring appellant are even more compelling. The denial of its claim for fees does not merely decrease its share of entitlement by some undetermined percentage, but instead completely eliminates any prospect for compensation for its work on behalf of the corporation. The hardship wrought upon appellant is therefore total rather than merely partial or incremental. More compelling still is the fact that appellant’s legal work was performed at all times in good faith; there has been no allegation, let alone any showing, that appellant acted in anything other than good faith. The quality of its representation has not been challenged. In short, appellant has provided a service for which it would receive no compensation whatsoever under the trial court’s ruling. In the words of the trial court’s order appointing the receiver, appellant has "contributed” a substantial service, and should therefore be entitled to prove its claim. The order denying appellant permission to file a claim must be reversed.
Appellant goes on to claim error in the trial court’s refusal to instruct the receiver to sell certain parcels of real estate held in the corporation’s name. According to appellant, these parcels could have been liquidated in order to generate funds to pay creditors such as appellant. This latter argument is without merit. The trial court found that there was a general plan for development of a particular area of land formerly owned by the corporation. This area was to be developed into a residential subdivision. The trial court’s previous judgment declared that the parcels in question were to be preserved exclusively for recreational use by residents of the subdivision. The previous judgment further ordered that the receiver assume control of and eventually sell certain additional subdivision parcels still held in the corporation’s name, with the proceeds to be used in completing the development of the recreational-use parcels in question. Finally, the court’s previous judgment ordered that corporation creditors be paid from the proceeds of the sale of other, unrelated property held in the corporation’s name. The clear language of the court’s previous judgment leaves no doubt that the corporation’s creditors may be paid from the proceeds of certain corporate property, but that neither the unsold residential lots nor the parcels reserved for residents’ recreational use may be liquidated to pay creditors. These lots, having been earmarked for the enjoyment of subdivision residents, were properly eliminated by the trial court as a potential source of funds to pay appellant.
Summarizing the foregoing, we conclude that the trial court erred in denying appellant permission to file its claim for attorney fees incurred in representing the now-dissolved corporation. The order denying this claim must be reversed. On the other hand, the trial court acted properly in refusing to require liquidation of the subdivision parcels in question. Other corporate property must be used as the source of funds from which to pay creditors such as appellant.
Reversed and remanded for proceedings consistent with this opinion.
In an evidentiary hearing, the trial court found that the sum $44,001.82 represented an accurate and reasonable statement of attorney fees and expenses incurred by appellant during the proceedings in question. This is the amount which should be recognized as a valid claim in favor of appellant. The actual disbursement of funds is a matter left to the discretion of the trial court and the appointed receiver. We do not address the question of appellant’s relative priority among creditors, nor do we find any occasion to require the receiver to liquidate any particular corporate asset in order to satisfy appellant’s claim. Our sole finding is that appellant’s claim for attorney fees is as valid as that of any other creditor of the former corporation. | [
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V. J. Brennan, P.J.
On September 24, 1984, Ingham Circuit Court Judge Carolyn Stell entered an order granting the motion for summary judgment of plaintiffs George L. Hagen, Bedford Public Schools, and the Bedford Board of Education and declaring that plaintiffs had a right, pursuant to the Michigan Freedom of Information Act, to receive complete, unexpurgated copies of all deci sions of the State Tenure Commission. Defendants Michigan Department of Education, Michigan Board of Education, and Phillip Runkel appeal as of right from the order (Docket No. 80887). Intervening plaintiff, Michigan Education Association, has also filed a claim of appeal from the order (Docket No. 81024).
During the 1982-83 school year, George L. Ha-gen was the Superintendent of the Bedford Public Schools. In early November, 1982, Hagen made a written request to the Director of the State Tenure Commission seeking a copy of the commission’s decision in Jacob v Detroit Schools (Commission Docket No. 77-43-R). Defendant Superintendent of Public Instruction, Phillip Runkel, denied the request by letter dated November 9, 1982, on the ground that the case was one in which the teacher had requested a private hearing pursuant to § 4 of 1937 (Ex Sess) PA 4, MCL 38.104; MSA 15.2004, and the appellate process had not yet been exhausted. According to Runkel, the statutory right to a "private hearing” before the commission exempted the decisions of the commission from disclosure, pursuant to § 13(l)(d) of the Michigan Freedom of Information Act, until such time as the appellate process had been exhausted. Runkel also asserted in the letter that disclosure of the decision would be in violation of § 13(l)(a) of the foia, as a "clearly unwarranted invasion of an individual’s [the teacher’s] privacy.”
An additional request for disclosure was made by the Bedford Public Schools’ attorney on December 6, 1982. The request was for copies of all decisions rendered by the commission within the past twelve months wherein the teacher requested a closed hearing. The letter provided that Hagen and the Bedford Public Schools wished copies of the decisions because the Bedford Schools were involved in a proceeding presently before the commission and they believed that the decisions would have a direct effect on the Bedford Schools’ case.
The December 6, 1982, request was granted in part and denied in part by Runkel in a letter dated December 14, 1982. Runkel indicated that eleven decisions had been rendered in the past twelve months in cases where the teacher had requested a closed hearing. In three of those cases the appellate process had been exhausted. Copies of the decisions in those cases were sent to the Bedford Schools’ attorney. The request in regard to the other eight decisions was denied on the basis that the statutory right to a private hearing exempted the decisions from disclosure pursuant to § 13(l)(d) of the foia.
On January 12, 1983, plaintiffs Hagen, Bedford Schools and Bedford Board of Education filed a complaint for declaratory judgment and writ of mandamus in the Ingham Circuit Court. In Count i, plaintiffs asserted that they were entitled to a declaratory judgment that the commission’s decisions constituted "public records” and, as such, were subject to disclosure pursuant to the foia. In Count ii, plaintiffs claimed that, because the commission’s decisions were subject to disclosure, defendants had breached a clear legal duty to permit plaintiffs to examine the decisions. Accordingly, plaintiffs requested that the trial court issue a writ of mandamus directing defendants to produce the decisions for examination by plaintiffs.
Subsequent to plaintiffs’ filing of suit, leave was sought by the Michigan Education Association to intervene as a party plaintiff. By order dated May 4, 1983, the motion to intervene was granted. The parties stipulated, however, that mea would not participate in any oral argument or in evidentiary hearings before the trial court.
The complaint filed by mea on May 17, 1983, contained a request for a declaratory judgment that private decisions of the commission be released pursuant to foia, but only after all personal identifying information had been deleted.
Defendants filed a motion for summary and accelerated judgment on plaintiffs’ complaint on February 2, 1983, and for summary judgment on mea’s complaint on June 1, 1983. The motions were denied in a written opinion and order issued by the trial court on June 20, 1984. Plaintiffs’ subsequent motion for summary judgment was granted in an order dated September 24, 1984, which provided that defendants were to release to plaintiffs "complete and unexpurgated copies of the decisions sought by Plaintiff.”
Enforcement of the order was stayed pending disposition of this case on appeal. As a condition of the stay, defendants were directed to provide plaintiffs with copies of the requested decisions "with all personal identifiable information struck from said decisions.”
Defendants filed a claim of appeal from the grant of summary judgment with this Court on October 9, 1984. Mea filed its claim of appeal on October 15, 1984. The appeals were consolidated on this Court’s own motion on October 26, 1984.
The question is whether the trial court erred as a matter of law in determining that plaintiffs were entitled to complete, unexpurgated copies of decisions of the State Tenure Commission where private hearings had been requested by the teachers and appeals from the decisions had not yet been exhausted.
The foia, MCL 15.231 et seq.; MSA 4.1801(1) et seq., provides for the disclosure of "public records” in the possession of a "public body.” MCL 15.233; MSA 4.1801(3). The reason for requiring the disclosure of public records is explained in the act as follows:
It is the public policy of this state that all persons are entitled to full and complete information regarding the affairs of government and the official and public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process. [MCL 14.231(2); MSA 4.1801(1)0).]
Certain documents and information are, however, exempt from disclosure pursuant to § 13 of the foia. Under § 13(1)(d) of the act, disclosure is not required of "[rjecords or information specifically described and exempted from disclosure by statute.” MCL 15.243(1)(d); MSA 4.1801(13)(1)(d).
In the instant case, defendants argue that the trial court erred in determining that the provisions of the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., did not specifically describe and exempt from disclosure decisions of the commission. Under § 1 of article IV of the tenure act, a hearing before the controlling school board is required before a tenured teacher may be discharged or demoted. MCL 38.101; MSA 15.2001. The hearing is to be conducted in accordance with certain provisions set forth in article IV, § 4 of the tenure act. Article IV, § 4, provided in pertinent part:
a. The hearing shall be public or private at the option of the teacher affected.
f. Any hearing held for the dismissal or demotion of a teacher, as provided in this act, must be concluded by a decision in writing, within 15 days after the termination of the hearing. A copy of such decision shall be furnished the teacher affected within 5 days after the decision is rendered. [MCL 38.104, subds (a) and (f); MSA 15.2004, subds (a) and (f). Emphasis added.]
Once a decision has been reached by the controlling school board, the teacher has the right to appeal the decision to the State Tenure Commission. Notice and conduct of the hearing before the commission "shall be the same as provided in article 4, section 4.” MCL 38.121; MSA 15.2021. Thus, a teacher has the right to choose to have a private hearing before both the local school board and the commission.
Resolution of the issue of whether the decisions of the commission are specifically exempted from disclosure by statute depends on the interpretation of the word "hearing” as used in article IV, §§ 4(a) and 4(f) of the tenure act. If "hearing” is defined as encompassing the decisions rendered by the commission, then the statutory provision granting the right to a private "hearing” before the commission could be interpreted as specifically describing and exempting from disclosure under the foia a decision of the commission, at least until such time as judicial appeals from the commission’s decision are exhausted.
Under generally recognized principles of statutory construction, where the language of a provision is plain and unambiguous, judicial construction or attempted interpretation to vary the meaning of the provision is proscribed. Cole v DAIIE, 137 Mich App 603, 608; 357 NW2d 898 (1984). However, if ambiguity exists, it is this Court’s duty to give effect to the intent of the Legislature in enacting the statute. To resolve a perceived ambiguity, a court will look to the object of the statute, the evil or mischief which it is designed to remedy, and will apply a reasonable construction which best accomplishes the statute’s purpose. Also, ambiguous statutes will be interpreted as a whole and construed so as to give effect to each provision and to produce a harmonious and consistent result. Further, specific words in a given statute will be assigned their ordinary meaning unless a different interpretation is indicated. R & T Sheet Metal, Inc v Hospitality Motor Inns, Inc, 139 Mich App 249, 253-254; 361 NW2d 785 (1984).
In the instant case, article IV, §§ 4(a) and 4(f) of the tenure act are ambiguous as to whether "hearing” includes the rendering of a decision on a case. The first sentence of subsection (f) provides that the hearing shall be "concluded by a decision.” This tends to indicate that the decision is part of the hearing procedure. Nonetheless, the sentence continues and provides the decision is to be rendered "after the termination of the hearing,” which suggests that the decision is rendered only after the hearing has been concluded and, thus, is not part of the hearing procedure itself. Consequently, the statutory provision is ambiguous as to whether the decision of the commission is to be considered part of the "hearing.”
Consideration of the ordinary meaning of the word "hearing” does little to resolve the ambiguity present in the statute. According to the fourth edition of Black’s Law Dictionary, a "hearing” is generally viewed as encompassing "whatever takes place before magistrates clothed with judicial functions and sitting without jury at any stage of the proceedings subsequent to its inception. The definition further provides that the hearing "may” terminate in final order and include "decree of court.” Accordingly, the definition merely indicates that the decision of a judicial or quasi-judicial body may or may not be part of a "hearing.”
In attempting to resolve the ambiguity, however, consideration of the "evil or mischief,” which the tenure act was designed to remedy, is instructive of the Legislature’s intended scope of the word "hearing.” As was recognized by the Supreme Court in Weckerly v Mona Shores Bd of Ed, 388 Mich 731, 734; 202 NW2d 777 (1972), the purpose of the tenure act is that of "protecting teachers’ rights.” In conformity with the policy of protecting teachers’ rights, the Attorney General has opined that the right to a private hearing before the commission includes the right to keep the decision of the commission private until appeals have been exhausted. OAG, 1959-1960, No. 3296, p 177 (September 1, 1959). In his opinion, the Attorney General reasoned that the provision granting teachers the right to a private hearing both before the local school board and before the commission supported a determination that the Legislature intended that the right to privacy continue through the appeal process. According to the Attorney General, in order for the right to a private hearing to be meaningful, it would be necessary for the decisions of the local school board and the commission to remain confidential until the decisions became final and no further appeal was available.
This Court has similarly ruled that the decision of the commission is part of a hearing before the commission and must remain confidential until exhaustion of judicial appeals. Royal Oak School Dist v Schulman, 68 Mich App 589; 243 NW2d 673 (1976). In Schulman, the issue before this Court was whether the decision to dismiss or demote a teacher must be made by the local school board at a public meeting pursuant to the public board meetings act, MCL 15.251 et seq.; MSA 4.1800(1) et seq., where the teacher has previously requested that hearings regarding his discharge be held privately pursuant to article IV, § 4, of the tenure act. In determining whether the right to a private hearing encompassed the right to keep a decision of the local school board confidential until all appeals from the decision have been exhausted, this Court looked to the intent behind the tenure act and found that the act was to be interpreted in favor of the legislative purpose of protecting teachers’ rights. 68 Mich App 593. In accordance with that policy, this Court found that the decision of the school board was part of the "hearing” and could be kept private until the teacher had exhausted the appellate processes.
Although the instant case involves the disclosure requirements of the foia rather than those of the public board meetings act, the policy concerns behind the teacher tenure act are equally applicable. If the decisions are released prior to exhaustion of the appellate process, a wrongfully discharged or demoted teacher might choose to forego available procedures simply because of the pressure by the public to resign and avoid further embarrassment. Accordingly, in order to preserve the teacher’s right to a private hearing and the policies behind the Legislature’s grant of such a right, the word "hearing” in article IV, § 4, of the tenure act must be interpreted under Schulman as encompassing the decision of the commission.
The trial court, however, found that Schulman was not applicable to the instant case because, subsequent to the rendering of that decision, the Legislature amended article VII, § 9 of the teacher tenure act to provide that "[a] writing prepared, owned, used, in the possession of, or retained by the commission in the performance of an official function shall be made available to the public” in compliance with the foia. MCL 38.139; MSA 15.2039. The trial court found that this amend ment indicated that the Legislature intended that the policies behind the tenure act not be viewed as requiring exemption from disclosure. There is no authority which supports the trial court’s interpretation of article VII, § 9. The amendment could be interpreted as merely indicating the intent of the Legislature to consider the commission a public body and its writings as public records. Since there is nothing in article VII, § 9, that indicates that specific statutory exemptions are no longer to be considered as justifying nondisclosure, the trial court erred in interpreting article VII, §9, as justifying disclosure of the commission’s decisions in the instant case.
Moreover, intervening plaintiffs contention that the decisions should be released but with deletions of identifying information is without merit. Under §14 of the foia, MCL 15.244; MSA 4.1801(14), where a record contains material which is not exempt from disclosure under § 13, the exempt material is to be separated from the nonexempt material. Section 14 is not applicable to the instant case because the entire decision of the commission is exempt from disclosure pursuant to § 13(l)(d) of the act. If article IV, § 4, of the tenure act is to be interpreted as including within the meaning of the word "hearing” the rendering of a decision with the right to a private hearing, then the decision as a whole, and not just the personal identifying information in the decision, must be found to be exempt from disclosure. Consequently, no part of the decision of the commission, where a private hearing has been requested and the appellate process has not yet been exhausted, is subject to disclosure under the foia.
The trial court erred in determining that the decision of the Tenure Commission must be disclosed pursuant to the Freedom of Information Act where a teacher has requested a private hearing before the commission and the appellate process has not yet been exhausted. Accordingly, the order granting summary judgment to plaintiffs is reversed. | [
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C. W. Simon, Jr., J.
Plaintiffs appeal from an order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7) on the grounds that plaintiffs’ claim was barred by the expiration of the applicable period of limitation. We affirm.
On November 5, 1981, Alexander Thomas (hereafter plaintiff) was employed by Michigan Chrome and Chemical Corporation, mixing chemicals manufactured by Pittsburgh Paint and Glass Company (and supplied by Allied-Kelite Products Division, Richardson Chemical Company, a division of Richardson Company), E. I. du Pont de Nemours & Company (and supplied by ChemCentral/Detroit Corporation), and Ecclestone Chemical Corporation (also supplied by ChemCentral), in a tank manufactured and supplied by Stainless Products Corporation. When plaintiff mixed these chemicals according to the directions of his employer, an explosive reaction occurred which caused plaintiff to suffer second- and third-degree burns over approximately one-quarter pf his body. According to the complaint, this explosion was caused by defendants’ negligent design, manufacture, and sale of the chemicals and the mixing tank involved and defendants’ breach of express and implied warranties made to Michigan Chrome and Chemical Corporation and plaintiff.
After several weeks of hospitalization and treatment, plaintiff filed a workers’ compensation claim which was eventually redeemed. During the workers’ compensation proceeding, plaintiff’s compensation lawyer did not advise him of the viability of a products liability claim against the manufacturers of the chemicals, and plaintiff did not become aware of this possibility until he met with his present attorney in April or May of 1984. At the time of this meeting, plaintiff did not know the identities of any of the chemical manufacturers or suppliers. He knew only the names of the chemicals involved.
Seeing no other alternative, plaintiffs proceeded to file a "John Doe” complaint on November 2, 1984. After further investigation, plaintiffs discovered the identity of the chemical manufacturers, and upon receiving permission of the trial court by order, plaintiffs filed an amended complaint on April 30, 1985, naming the defendants. The defen dants were all served by May 2, 1985. On May 28, 1985, defendants moved for summary disposition. The lower court held that the period of limitation was not tolled while plaintiffs sought the identity of the alleged tortfeasors and the court further noted that plaintiffs’ diligence in attempting to identify defendants also did not toll the period of limitation. Consequently, because plaintiffs’ action was commenced almost six months after the three-year period of limitation had expired, the trial court granted defendants’ motion for summary disposition.
Plaintiffs have launched a two-prong attack on the lower court’s opinion. They first argue that filing a John Doe complaint tolled the period of limitation because the defendants were named and served before the expiration of the summons from that complaint. We disagree.
In a products liability claim, as in this case, there is a period of limitation of three years from the accrual of such claim. MCL 600.5805(9); MSA 27A.5805(9). Plaintiffs attempted to avoid the limitations bar by filing a John Doe complaint, i.e., naming no specific defendants, but instead referring to them as "XYZ Corp.,” etc. This type of complaint is authorized by the court rules:
(1) Persons who are or may be interested in the subject matter of an action, but whose names cannot be ascertained on diligent inquiry, may be made parties by being described as:
(a) unknown claimants;
(b) unknown owners; or
(c) unknown heirs, devisees, or assignees of a deceased person who may have been interested in the subject matter of the action. [MCR 2.201(D)(1), formerly GCR 1963, 201.4(1).]
While the court rules authorize the filing of such a complaint, they are silent on the effect such a complaint has on the period of limitation.
Plaintiffs argue that the filing of such a complaint satisfies the statute of limitations. Plaintiffs contend that MCR 2.101(B) (an action is commenced by the filing of a complaint) controls and, therefore, whenever a complaint is filed, the statute of limitations has been satisfied and is no longer an immediate issue.
Plaintiffs’ position here is untenable. The logical result of plaintiffs’ position is that the statute of limitations has little if any import, as it can easily be circumvented by the filing of any type of complaint. This would be a strange result indeed considering that statutes of limitation are seen as promoting justice by the prevention of stale claims being filed. Lothian v Detroit, 414 Mich 160, 166-167; 324 NW2d 9 (1982); Cronin v Minster Press, 56 Mich App 471, 478-479; 224 NW2d 336 (1974), lv den 393 Mich 811 (1975); Meda v City of Howell, 110 Mich App 179, 184; 312 NW2d 202 (1981). More importantly, plaintiffs’ position conflicts with the previous holdings of this Court that the filing of a "John Doe” complaint does not toll or satisfy the period of limitation; for all practical purposes all defendants specifically unnamed are not yet parties to a suit. Meda, supra, pp 185-186; Fazzalare v Desa Industries, Inc, 135 Mich App 1, 6; 351 NW2d 886 (1984).
Plaintiffs also argue that even if the John Doe complaint did not satisfy the statute of limitations, their amended complaint of April 30, 1985, named specific defendants, and because amendments relate back to the original complaint, MCR 2.118(D) [formerly GCR 1963, 118.4], and the original complaint was filed within the three-year limitation period, the action is not time-barred. However, this argument ignores the holding in Meda and Fazza lare that defendants not specifically named in John Doe complaints are not yet parties to the suit and, if added later, are considered new parties to the litigation. Therefore, amendments to a complaint that add new parties do not relate back. See also Browder v International Fidelity & Ins Co, 98 Mich App 358, 361; 296 NW2d 60 (1980), aff'd 413 Mich 603 (1982). Since defendants in the instant case were considered new parties when added, and the period of limitation had expired before they were added as parties, they were entitled to summary disposition.
Plaintiffs’ final argument on this issue is that because they were diligent in their attempts to determine the identity of the defendants, the period of limitation should have been tolled. However, the "diligent plaintiff’ exception is not as broad as plaintiffs would have us believe. Plaintiffs rely on Charpentier v Young, 83 Mich App 145; 268 NW2d 322 (1978), rev’d on other grounds 403 Mich 851 (1978). By order, the Supreme Court held that the period of limitation was tolled during the time in which the motion to amend the complaint to add parties defendant was pending, plaintiffs having demonstrated due diligence by seeking a decision on their motion within three weeks. Thus, as stated in Moore v Flower, 108 Mich App 214, 217; 310 NW2d 336 (1981), remanded 414 Mich 897 (1982):
Application of statutes of limitations is a counting procedure with a primary purpose being to give the parties and the courts a specific time at which the statutory bar goes into effect. We find that the Supreme Court order in Charpentier, supra, applies such a rule and hold that, when a plaintiff moves to add a party defendant or to amend a complaint to do so, the statute of limitations is tolled during the time in which the motion to add parties or amend the complaint is pending in the trial court.
In this case, plaintiffs did not move to amend their complaint until the period of limitation had already run; tolling the period of limitation while the motion was pending would make no difference. Plaintiffs have provided this Court with no reason why their action is not time-barred. Thus, the trial court acted properly in granting defendants’ motion for summary disposition.
Plaintiffs’ second issue is that their cause of action did not accrue until the identity of all the defendants was discovered. In determining when a cause of action accrues for purposes of a statute of limitations, the general rule is that a cause accrues only when all the necessary elements have occurred and can be alleged in a proper complaint. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972); Luick v Rademacher, 129 Mich App 803, 806; 342 NW2d 617 (1983). Given that the instant case involves a products liability claim, plaintiffs’ claim accrued when four elements had occurred and could be properly pled:
A cause of action arising out of tortious injury to a person accrues when all the elements of the cause of action have occurred and can be alleged in a proper complaint. These elements are:
1. The existence of a legal duty by defendant toward plaintiff;
2. the breach of such duty;
3. the proximate causal relation between the breach of such duty and an injury to the plaintiff; and
4. the plaintiff must have suffered damages. [Lefever v American Red Cross, 108 Mich App 69, 72; 310 NW2d 278 (1981).]
See also Connelly v Paul Ruddy’s Co, supra, p 150.
Plaintiffs do not deny that these four elements were present on November 5, 1981. Instead, plaintiffs claim that they did not know they had a legal cause of action until mid-1984, when they met with their present attorney, and that they were not aware of the identity of the defendants until April of 1985. Plaintiffs therefore conclude that their cause of action accrued in mid-1984 or April of 1985.
Plaintiffs are basically arguing that until they had competent professional advice their cause of action did not accrue. This position is at odds with the well-established principle that it is not necessary for a plaintiff to know he has suffered an invasion of a legal right before a cause of action accrues. Leary v Rupp, 89 Mich App 145, 148; 280 NW2d 466 (1979); Huntington Woods v Wines, 122 Mich App 650, 652; 332 NW2d 557 (1983). Indeed, if plaintiffs’ position was followed, no statute of limitations would have any effect.
It would be an extremely dangerous rule of law that the accrual date of a cause of action is held in abeyance indefinitely until a prospective plaintiff obtains professional assistance to determine the existence of a possible cause of action. Under such a theory, no limitations period would ever be binding. [Sedlak v Ford Motor Co, 64 Mich App 61, 63; 235 NW2d 63 (1975).]
See also Stoneman v Collier, 94 Mich App 187, 193; 288 NW2d 405 (1979); Reiterman v Westinghouse, Inc, 106 Mich App 698, 703; 308 NW2d 612 (1981). Consequently, plaintiffs’ position is without merit.
Plaintiffs’ other argument is that a cause of action did not accrue until the identity of the defendants was discovered. This is a version of what is called the "discovery rule,” which states that the period of limitation does not begin to run until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, that he had a possible cause of action. Filcek v Utica Building Co, 131 Mich App 396, 399; 345 NW2d 707 (1984); Mays v Three Rivers Rubber Corp, 135 Mich App 42, 49; 352 NW2d 339 (1984). Quite recently this doctrine has been applied in the products liability context. Bonney v The Upjohn Co, 129 Mich App 18, 35; 342 NW2d 551 (1983), lv den 419 Mich 868 (1984); Cullender v BASF Wyandotte Corp, 146 Mich App 423, 427; 381 NW2d 737 (1985); contra, Larson v Johns-Manville Sales Corp, 140 Mich App 254, 267; 365 NW2d 194 (1985), lv gtd 422 Mich 975 (1985).
The problem with plaintiffs’ position is that they apply the discovery rule in a context in which it is not designed to apply. In both Bonney and Cullender, the delay in discovery was not that of the identity of the alleged tortfeasor, but was a delay in discovering that a disease was related to exposure to certain products (i.e., the element of proximate cause). As this Court stated in Reiterman v Westinghouse, supra, p 704:
There is a plethora of case law holding that the statute of limitations is not tolled pending discovery of the identity of the alleged tortfeasor where all the other elements of the cause of action exist.
See also Thomas v Ferndale Laboratories, Inc, 97 Mich App 718, 720; 296 NW2d 160 (1980); Pendergast v American Fidelity Fire Ins Co, 118 Mich App 838, 843; 325 NW2d 602 (1982); Taulbee v Mosley, 127 Mich App 45, 47-48; 338 NW2d 547 (1983).
We decline to accept plaintiffs’ invitation to adopt the holding in the recent decision in Yustick v Eli Lilly & Co, 573 F Supp 1558 (ED Mich, 1983). In Yustick, a case involving the drug diethylstilbestrol (des), a federal district court held that plaintiffs claim did not accrue for statute of limitations purposes until the identity of the alleged tortfeasor was discovered. 573 F Supp, p 1562. However Yustick is a federal case relying for the most part on federal law. Second, Yustick involves the drug des, which often did not make its negative effects known on the children of its users for up to twenty years. As such, a des case involves special considerations not present in the instant case. Thus we find that Yustick is not binding on this Court and, as previously stated, we decline to follow it.
Plaintiffs’ claim accrued on November 5, 1981, and at that time all the elements of a products liability claim had occurred and could be pled in a proper complaint. Plaintiffs have been unable to provide this Court with any reason to delay this date in any way. Therefore, we hold that the trial court did not err in granting summary disposition in favor of the defendants.
Affirmed.
M. J. Kelly, P.J., concurred. | [
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Per Curiam.
In dispute is the distribution of a legal fee earned in an unrelated lawsuit. The two parties, both of which are law firms, claim the lion’s share of the fee. The lower court entered an order on October 6,1986, granting plaintiff’s motion for summary disposition and distributing $41,529.33 of the fee to plaintiff and $25,500 to defendant. MCR 2.116(C)(10). In a second order also entered on October 6, 1986, the lower court awarded costs and attorney fees to plaintiff. MCR 2.405. Defendant appeals, and plaintiff cross appeals, from both orders.
In May of 1982, third-party defendant, Stephen T. Moffett, an associate of defendant law firm, was retained in a personal injury lawsuit. Defendant was subsequently retained and a complaint was filed. Thereafter, Moffett resigned from defendant and formed, along with two other attorneys, the plaintiff law firm. On September 24, 1985, plaintiff was substituted for defendant as attorneys in the personal injury lawsuit. The lawsuit was later settled and a $65,029.33 contingency fee was earned.
The parties first dispute the distribution of the legal fee, with defendant arguing that the fee should have been allocated pursuant to a preexisting agreement between Moffett and defendant. The lower court rejected defendant’s claim and instead distributed the fee on the basis of quantum meruit. It found that defendant had spent 235 hours on the underlying lawsuit. Determining defendant’s rate at $100 per hour, the court awarded defendant $23,500.
We hold that the lower court properly distributed the fee on the basis of the theory of quantum meruit. Defendant had a lien upon any judgment or fund resulting from its services. See Ambrose v The Detroit Edison Co, 65 Mich App 484, 487-488; 237 NW2d 520 (1975), lv den 397 Mich 888 (1976). An attorney retained on a contingent fee arrangement who withdraws from a case for good cause is entitled to compensation for the reasonable value of his services based upon quantum meruit, and not the contingent fee contract. Medbury v General Motors Corp, 119 Mich App 351, 358; 326 NW2d 139 (1982). Therefore, it was proper to compensate defendant pursuant to the principles of quantum meruit.
On cross appeal, plaintiff argues that the lower court erred in setting defendant’s hourly rate at $100 per hour. This Court may not set aside a lower court’s findings of fact unless such findings are clearly erroneous. MCR 2.613(C); Medbury, p 354. Although the rates submitted to the court by defendant were less than $100 per hour, the court was not bound by defendant’s statements and was primarily concerned with setting a reasonable attorney fee. We find that the court did not clearly err when it determined defendant’s fee to be $100 per hour.
In their second issue, the parties disagree with the lower court’s award to plaintiff of $70 in costs and $1,955 in attorney fees. The court awarded these costs on the basis of MCR 2.405, which permits the imposition of costs following a party’s rejection of an offer. Defendant argues that, "in the interests of justice,” plaintiff should not have received these costs since defendant made several attempts to amicably resolve the fee dispute before it reached litigation. See MCR 2.405(D)(3). There is no guidance as to when the "interests of justice” preclude an award of attorney fees. Sanders v Monical Machinery Co, 163 Mich App 689, 692; 415 NW2d 276 (1987). A review of the record leads us to conclude that the court did not abuse its discretion in awarding these costs. Both parties were notified that, if they did not accept the other party’s offer, that party would seek actual costs pursuant to MCR 2.405.
Plaintiff argues in its cross appeal that the lower court abused its discretion under MCR 2.405 when it awarded plaintiff attorney fees based on $100 per hour, instead of plaintiff’s actual, stated fee of $150 per hour. A clear reading of MCR 2.405, however, indicates that the court has the discretion to assess reasonable attorney fees; there is no requirement for the court to assess actual attorney fees. A similar argument was rejected in Johnston v Detroit Hoist & Crane Co, 142 Mich App 597, 601; 370 NW2d 1 (1985), as it pertained to the mediation rule. The lower court did not abuse its discretion in determining a reasonable rate to be $100 per hour.
The lower court’s grant of summary disposition was proper.
Affirmed.
Prior to its reorganization, defendant’s name was Ogne, Jinks, Ecclestone & Alberts, P.C. | [
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Per Curiam:.
Defendant appeals as of right from the trial court’s grant of summary disposition to plaintiffs and the denial of defendant’s motion for similar relief. Defendant asserts that the trial court erred in concluding that defendant could not deduct plaintiff Evelyn Conrad’s workers’ compensation benefits from the personal protection insurance benefits defendant was otherwise obligated to pay plaintiff under an insurance contract. We agree and reverse.
Plaintiffs purchased a no-fault automobile liability policy from defendant that specifically provided for noncoordinated personal protection insurance benefits. Thereafter, plaintiff Evelyn Conrad was injured at a car wash when she was pinned between two automobiles during the course of her employment. In addition to her receipt of workers’ compensation benefits, Mrs. Conrad also filed a claim with defendant for pip benefits. Although defendant paid the claim, defendant deducted a setoff equal to the amount of the workers’ compensation benefits.
Plaintiffs subsequently filed the instant action to recover the setoff and both parties then moved for summary disposition under MCR 2.116(C)(10). Without detailing its reasoning, the trial court granted summary disposition to plaintiffs. However, the record indicates that the trial court apparently concluded that defendant had waived its right to a setoff by charging plaintiff a higher premium for the noncoordinated pip benefits. Having reviewed the underlying contract, we now conclude that this decision was in error.
A motion for summary disposition pursuant to MCR 2.116(0(10) tests the factual support for a claim. Brackens v Detroit Osteopathic Hospital, 174 Mich App 290, 292; 435 NW2d 472 (1989). Giving the benefit of all reasonable doubt to the opposing party, the court will grant the motion only if it is impossible for the claim or defense to be supported at trial because of a deficiency which cannot be overcome. Brackens, supra; Rizzo v Kretschmer, 389 Mich 363, 371-373; 207 NW2d 316 (1973). In the instant case, the validity of the parties’ respective claims is determined by the terms of the underlying insurance contract. See Hagerl v Auto Club Group Ins Co, 157 Mich App 684; 403 NW2d 197 (1987), lv den 428 Mich 900 (1987). In examining that policy we are mindful that any clause is valid provided it is clear, unambiguous and consistent with public policy. Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 171 Mich App 46, 53; 429 NW2d 637 (1988); Raska v Farm Bureau Mutual Ins Co of Michigan, 412 Mich 355, 361-362; 314 NW2d 440 (1982), reh den 412 Mich 1119 (1982).
Defendant originally deducted the setoff from plaintiff’s pip benefits pursuant to the following provision in the contract:
We will subtract benefits provided or required to be provided under the laws of any state or federal government from the benefits otherwise payable under this coverage ....
We conclude that this provision clearly and unambiguously authorizes defendant to deduct workers’ compensation benefits, which are required to be provided under Michigan law, from otherwise payable pip benefits, regardless of whether plaintiffs purchased coordinated or noncoordinated coverage. We note that this provision is included in the policy’s "Limits of Liability” section. Although other provisions in that section refer to deductions applicable only if the policy is for coordinated benefits, there is nothing to indicate that the instant provision only applies where the insured has elected to coordinate benefits. To the contrary, the instant provision clearly details that it applies to "benefits otherwise payable under this coverage . . . .” The plain import of this phrase is that the setoff will apply to any benefits payable under the entire policy. Moreover, the term "coverage” is also "a word of precise meaning in the insurance industry, [and] refers to protection afforded by an insurance policy, or the sum of the risks assumed by a policy of insurance.” LeBlanc v State Farm Mutual Automobile Ins Co, 410 Mich 173, 204; 301 NW2d 775 (1981). Thus, the clear and unambiguous language of the policy authorizes defendant to deduct a setoff equal to plaintiff’s workers’ compensation benefits.
Further, the operation of this provision is consistent with public policy. Under Michigan’s no-fault automobile insurance act, workers’ compensation benefits are statutorily required to be subtracted from pip benefits. See MCL 500.3109(1); MSA 24.13109(1) and Joiner v Michigan Mutual Ins Co, 161 Mich App 285, 291; 409 NW2d 808 (1987). The purpose of this statutory mandate is to eliminate "duplicative benefits recovery” in an effort to ensure lower premiums for no-fault insurance. Sibley v DAIIE, 431 Mich 164, 168; 427 NW2d 528 (1988); Gregory v Transamerica Ins Co, 425 Mich 625, 631-632; 391 NW2d 312 (1986). Public policy demands that no-fault insurance premiums be kept as low as possible since such insurance is compulsory. Gregory, supra, citing O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 547; 273 NW2d 829 (1979). Consequently, we conclude that the trial court erred in granting summary disposition to plaintiffs because the underlying insurance contract clearly authorized the setoff deducted by defendant. Further, since the setoff was clearly authorized, we conclude that defendant is rightfully entitled to summary disposition.
Reversed and remanded for entry of summary disposition in favor of defendant. | [
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Per Curiam.
Defendant appeals as of right his conviction of conspiracy to break and enter an occupied dwelling to commit a larceny or a felony therein, i.e., malicious destruction of real property, MCL 750.157a; MSA 28.354(1), MCL 750.110; MSA 28.305, and the actual breaking and entering of an occupied dwelling to commit a larceny or a felony therein, i.e., malicious destruction of property, MCL 750.110; MSA 28.305. We affirm.
Originally charged with these oifenses on March 19, 1986, defendant and the prosecutor entered into a plea agreement: defendant agreed to plead no contest to the conspiracy charge and the prosecutor agreed to recommend a six-month sentence.
The first of defendant’s claims on appeal arises from a discussion held between the circuit judge, defense counsel, and the newly assigned prosecutor on June 17, 1987, prior to defendant’s scheduled sentencing on the accepted conspiracy plea. The new prosecutor told the judge in chambers that he would place the recommendation for a six-month sentence on the record as the original prosecutor had promised defendant would be done. According to defense counsel, the prosecutor then began to argue strenuously for a greater sentence because he believed the recommended sentence was too lenient. However, the prosecutor claims that before he began to argue for a greater sentence, the judge indicated that he thought six months was too lenient. The prosecutor also claims that he did not make his comments for the purpose of changing the judge’s mind.
During the sentencing hearing, the trial judge announced that he intended to sentence defendant to two to fifteen years in prison and gave defen dant the opportunity to withdraw his plea. Defendant withdrew his plea, was subsequently tried by jury before a different judge and convicted of both original charges, and was sentenced to concurrent prison terms of seven to fifteen years and ordered to pay restitution.
Defendant first argues that the defendant’s right to have a prosecutor fulfill all significant portions of a plea agreement was violated and that he is entitled to relief under Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971). We agree. The Santobello Court ruled that the defendant had a right to have the prosecutor fulfill all portions of the plea agreement that were significant enough to induce the defendant to accept the agreement even though the sentencing judge says that such a recommendation would not have influenced him. Id., at 262.
In this case, the prosecutor clearly violated the plea agreement to recommend six months imprisonment by arguing to the judge in chambers before sentencing that a six-month sentence was too lenient. The six-month sentence recommendation was a primary reason why defendant entered the plea agreement, and under Santobello defendant was entitled to have the prosecutor fulfill that promise.
This Court has given a defendant’s preference in choice of remedies great weight in cases where the prosecutor breaches the plea agreement. However, in this case defendant’s preference for specific performance of the original bargain, while very understandable, is not appropriate.
Unlike any case we have discovered and unlike any case cited by defendant in support of his position, defendant here has already been afforded the opportunity to withdraw his plea. Defendant did not move for specific performance of the agreement at the time of the prosecutor’s breach, but exercised his option to withdraw his plea and demanded and received a trial by jury. Only after defendant was duly convicted of both original charges and sentenced did he begin demanding specific performance.
The Santobello Court did not hold that the constitution compels specific performance as the remedy for the breach of a plea agreement. See People v Gallego, 430 Mich 443, 450; 424 NW2d 470 (1988), citing Mabry v Johnson, 467 US 504; 104 S Ct 2543; 81 L Ed 2d 437 (1984). We see no reason why defendant should be entitled to more than one remedy simply because his exercise of the option to the first remedy, i.e., withdrawal of his plea, did not result in a disposition to his liking. The Santobello decision was grounded on due process considerations. Defendant was afforded due process in the vacation of his plea and subsequent jury trial.
Defendant also claims that his right to be sentenced on the basis of accurate information was violated when the trial court deviated from the sentencing guidelines on the basis of inaccurate information in the presentence report which was supplied by the victim, defendant’s ex-wife.
At sentencing, the only objections defense counsel made to the presentence report were directed to: (1) an addendum to the victim impact state ment, apparently made part of the presentence report, which listed the victim’s itemization of damages for purposes of restitution; and (2) the probation department’s valuation of a leather davenport, two chairs, and two ottomans at $9,000 (total). According to defendant, those items were purchased for $1,800 and similar items were then on sale for $599. In response to these factual challenges to the presentence report, the trial court said, "Very well.” Later, defense counsel indicated that, while he disputed the amount claimed, he did not dispute that the damage done to the victim’s house was substantial.
The trial court noted that the sentencing guidelines recommended minimum sentence range of twelve to thirty months was inadequate and departed significantly. The departure was based at least in part on the trial court’s memory of tjie trial testimony concerning the nature and extent of the damage done to the victim’s house. Indicating that it realized that there was a "vast amount of difference between what the victim claims her loss was and what the insurance company is willing to settle for” and that a difference between the victim’s and the insurance company’s postures was normal preparatory to negotiations, the trial court determined that restitution was appropriate.
Defendant now claims that the disputed valuation of damages resulted in a lengthier prison term, when actually the valuation had no apparent impact on sentencing at all. If there was any impact, that impact was on the amount of restitution defendant was ordered to pay, not the length of the prison term. The length of the prison term imposed was clearly related to the circumstances of the crime and its effect on the victim, as well as defendant’s past harassment, by way of malicious destruction of property, of his first ex-wife and her family.
We do not have the benefit of the presentence report to determine to what extent if any the victim’s valuation was relied upon in setting restitution. However, in attempting to set the valuation of the property as of the date of the crime, the trial court said:
The best that can be said at the present time is found on page four of the pre-sentence report in which the Department of Corrections has recommended restitution in the sum of $7,745.00 to be paid jointly and severally along with Russell Partington. The breakdown is to Century Mutual Insurance Company, 645 [sic - $6450.00?], and Ms. Duncanson $100 [sic - $1,000.00?]. I’m holding open the remainder of restitution pending settlement of the claim between the insurance company and the victim.
Based on the trial court’s comments, we find that the trial court accepted defendant’s allegations with regard to valuation as true and that defendant was sentenced on accurate information. People v Sutton, 158 Mich App 755, 763; 405 NW2d 209 (1987), lv den 429 Mich 871 (1987), reconsideration den 429 Mich 871 (1988).
Affirmed.
The prosecution also agreed to dismiss the breaking and entering charge upon acceptance of defendant’s no contest plea to the conspiracy charge, to dismiss separate charges for absconding on bond and being an habitual offender, and to remain silent at defendant’s sentencing for a malicious destruction of property conviction involving a different ex-wife of defendant.
See, for example, People v Peters, 128 Mich App 292, 295-296; 340 NW2d 317 (1983), People v Baker, 46 Mich App 495; 208 NW2d 220 (1973), People v Stevens, 45 Mich App 689, 693; 206 NW2d 757 (1973), and People v Eck, 39 Mich App 176; 197 NW2d 289 (1972). It is not clear whether this Court’s disposition was in accordance with defendant’s preference in People v Nickerson, 96 Mich App 604; 293 NW2d 644 (1980), or People v Hildabridle, 45 Mich App 93; 206 NW2d 216 (1973).
Gallego, supra, 430 Mich 449-450, n 2, citing Mabry, supra, 467 US 509. | [
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Murphy, P.J.
In this consolidated action, plaintiff appeals by leave granted from three orders of the lower court. The first order granted defendants’ motion brought under MCR 2.116(C)(7) for partial summary disposition. The second order denied plaintiff’s motion for rehearing relative to the partial summary disposition order. The third order denied plaintiff’s motion for leave to file a second-amended complaint. We reverse all three orders of the trial court and remand for further proceedings.
Plaintiff sells, installs and maintains private telephone communication systems. Defendant IPC designs, manufactures and sells telephone communication systems. In 1979, plaintiff signed an exclusive dealership agreement to become a distributor of IPC’s Citation telephone system.
Between 1979 and 1984, plaintiff purchased twenty-six Citation telephone systems, installed them at customer locations, and serviced them. Plaintiff alleged that its customers experienced numerous problems with the systems including poor transmission, cross-talk, hard-to-hear calls, and system failures. Plaintiff conducted a survey revealing that IPC’s systems required six hundred percent more service during their lifetime than would have been required had the systems performed according to specifications. Between 1979 and 1984 plaintiff communicated with IPC numerous times regarding the problems with the systems. IPC made repeated efforts to repair the systems and told plaintiff that the problems would be resolved. Plaintiff continued to purchase and install the Citation systems. Plaintiff sold its last Citation system in November, 1983.
On August 8, 1985, plaintiff filed suit against IPC and in November, 1986, plaintiff filed a first-amended complaint. Plaintiff pled various counts against defendant including breaches of express and implied warranties, fraudulent misrepresentation, fraudulent inducement to contract, negligent design and testing and failure to warn plaintiff of defects in the Citation system. Plaintiff alleged that it had suffered losses in excess of $3.9 million dollars because of increased maintenance costs, lost profits, lost capital, damage to reputation and legal expense.
In March, 1987, IPC filed a motion for partial summary disposition, pursuant to MCR 2.116(C)(7), claiming that "any systems that were delivered prior to August 8, 1981 [four years before the filing of plaintiffs August 8, 1985, complaint] should be excluded and barred from this law suit.” IPC’s motion was based on the fact that the four-year period of limitation under the Uniform Commercial Code, MCL 440.2725; MSA 19.2725, had expired. The lower court granted the motion and plaintiff filed for leave to appeal in this Court. This matter is Docket No. 100681.
Plaintiff then moved for a rehearing relative to the circuit court’s grant of partial summary disposition. The lower court denied that motion, ruling that MCL 440.2725; MSA 19.2725 governed the transaction and that there was no basis for plaintiffs claim that its allegations of fraud against IPC were subject to the six-year period of limitation in MCL 600.5813; MSA 27A.5813. Plaintiff also filed an application for leave to appeal relative to the lower court’s denial of its motion for reconsideration. This matter is Docket No. 101577.
Plaintiff next sought leave in the circuit court to file a second-amended complaint. This motion was denied and plaintiff again challenged the lower court’s order by filing an application for leave to appeal, Docket No. 101795, in this Court.
This Court then granted all three of plaintiffs applications for leave to appeal and these matters were consolidated for argument and submission.
Plaintiff first contends the circuit court erred in granting IPC’s motion for partial summary disposition because IPC’s warranties explicitly extended to future performance and, therefore, plaintiffs claim for damages for breach of warranty did not accrue until the breach was or should have been discovered as provided in MCL 440.2725(2); MSA 19.2725(2). We agree.
When reviewing a motion for summary disposition pursuant to MCR 2.116(C)(7), this Court must accept the plaintiffs well-pled allegations as true and construe them in favor of the plaintiff. Male v Mayotte, Crouse & D’Haene Architects, Inc, 163 Mich App 165, 168; 413 NW2d 698 (1987), lv den 429 Mich 901 (1988). If there are no facts in dispute, the issue whether the claim is statutorily barred is one of law for the court. Coddington v Robertson, 160 Mich App 406, 410; 407 NW2d 666 (1987).
In this case, the lower court granted defendant’s motion for partial summary disposition by relying on Uniform Commercial Code § 2-725, being MCL 440.2725; MSA 19.2725, which in pertinent part provides:
(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach, of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
The dealership agreements entered into between the parties in 1979 and 1980 provided for a one-year warranty by IPC from the date of shipment. Moreover, the distribution agreement subsequently entered into between the parties in pertinent part provided:
IPC warrants that any system or any component part thereof or any spare parts of equipment sold pursuant to this agreement will conform to published specifications, and will be free from defects in material and workmanship; under normal use and services for a period of 13 months from date of shipment. The liability of IPC under this warranty is limited to replacing or repairing or issuing credit (at the discretion of Seller and with the prior approval of Distributor) for such Systems that become defective during the warranty.
Plaintiff argues that its claims for damages for defective systems delivered before August 8, 1981, four years before the filing of its complaint, are not barred by the four-year statute of limitations because IPG’s warranties explicitly extended to future performance. We agree.
The United States Court of Appeals in Standard Alliance Industries, Inc v Black Clawson Co, 587 F2d 813, 820-821 (CA 6, 1978), cert den 441 US 923; 99 S Ct 2032; 60 L Ed 2d 396 (1979), held that an express warranty for a period of one year explicitly extended to future performance. The court explained:
Where, however, an express warranty is made which extends for a specific period of time, i.e. one year, the policy reasons behind strict application of the limitations period do not apply. If a seller expressly warrants a product for a speciñed number of years, it is clear that, by this action alone, he is explicitly warranting the future performance of the product or goods for that period of time. As [White & Summers, Uniform Commercial Code, p 342] points out, if an automobile is warranted to last for twenty-four thousand miles or four years, the warranty should extend to future performance. If the car fails within the warranty period, the limitations period should begin to run from the day the defect is or should have been discovered.
In the case at bar, Black Clawson expressly warranted the machine for a period of one year. Thus, we hold that the warranties explicitly extended to future performance for a period of one year. Therefore, under §2-725(2) the cause of action accrued when Standard Alliance discovered or should have discovered that the machine was defective, so long as the defect arose within the warranty period.
In addition, the Eighth Circuit of the United States Court of Appeals relied upon the above authority in R W Murray Co v Shatterproof Glass Corp, 697 F2d 818 (CA 8, 1983), and concluded that the warranty at issue in that case extended to future performance because the warranty provided that the product would perform in a specified manner for a specific period of time.
We are convinced that the warranty provisions in the dealership and distributorship agreements signed by the parties in this case were sufficiently explicit to fall within the statutory exception providing that the limitation period should begin running from the date the defect was or should have been discovered. Consequently, if any of defendant’s telephone systems did not perform as warranted within the applicable twelve- or thirteen-month warranty period, the limitation period should begin to run from the day the defect was or should have been discovered.
We note that IPC’s reliance on this Court’s decision in Centennial Ins Co v General Electric Co, 74 Mich App 169; 253 NW2d 696 (1977), is misplaced. The warranty provision in General Electric did not explicitly warrant that the goods would be free from defects for a specified period of time. Rather, the language of that warranty was classified by this Court as "a specification of the remedy to which buyer is entitled should breach be discovered within the first year.” General Electric, supra, p 171. Conversely, the various warranty provisions in the case at bar explicitly provided freedom "from defects for a period of one year from the date of shipment” or to "be free from defects in material and workmanship; under normal use and services for a period of thirteen months from date of shipment.”
Based on the foregoing, we conclude that the lower court erred in determining that the warran ties in this case did not extend to future performance and in granting IPC’s motion for partial summary disposition. Accordingly, on this issue, we remand this matter to the trial court for further proceedings for plaintiff to offer proofs on when the alleged warranty breach was or should have been discovered. MCL 440.2725(2); MSA 19.2725(2).
Plaintiff next contends that IPC is equitably estopped from asserting the statute of limitations defense. We disagree.
In response to IPC’s motion for partial summary disposition, plaintiff argued that IPC made numerous representations that it would repair the defects in the systems and that it detrimentally relied upon those representations. IPC countered that plaintiff was aware of defects in the systems and could have filed suit at any time.
In Lothian v Detroit, 414 Mich 160, 177; 324 NW2d 9 (1982), our Supreme Court explained that it was reluctant to recognize an estoppel in the absence of conduct clearly designed to induce the plaintiff to refrain from bringing action within the period fixed by statute.
In this case, plaintiff has alleged no facts that demonstrate that IPC undertook a course of action designed to induce plaintiff into refraining from filing suit. Moreover, it does not appear from the record that plaintiff was lulled into inaction by IPC’s conduct and representations relative to forthcoming repairs. Simply, we do not believe that IPC’s conduct falls within the standards outlined in Lothian, supra. Therefore, we conclude that the lower court did not err in determining that IPC was not equitably estopped from raising a statute of limitations defense.
Plaintiff next argues that the trial court erred in concluding that plaintiff’s fraud allegations were subject to the Uniform Commercial Code’s four-year period of limitation. After the trial court granted IPC’s motion for partial summary disposition, plaintiff moved for rehearing on the ground that its fraudulent inducement claims were subject to a six-year period of limitation. We agree.
Fraud claims in Michigan are subject to a six-year period of limitation. MCL 600.5813; MSA 27A.5813; Sweet v Shreve, 262 Mich 432; 247 NW 711 (1933). Our research has uncovered no Michigan authority resolving the potential conflict between the four-year ucc period of limitation and the six-year period of limitation applicable to fraud allegations. However, in Shatterproof Glass, supra, p 831, after an exhaustive review, the Eighth Circuit Court of Appeals held that ucc § 2-725 has no bearing on the question of the statute of limitations applicable to a fraud or misrepresentation count. We agree and adopt the reasoning employed in Shatterproof Glass on this issue. See also Triangle Underwriters, Inc v Honeywell, Inc, 604 F2d 737, 746-748 (CA 2, 1979), and Invacare Corp v Sperry Corp, 612 F Supp 448 (ND Ohio, 1984).
We note that, in responding to plaintiff’s arguments on this issue, IPC contends that plaintiff has failed to state a claim for fraud in the inducement. IPC argues that plaintiff’s claim is not independent of any contract and, consequently, plaintiff’s claim is governed by the four-year ucc period of limitation. However, this issue is not properly before us. The lower court was never asked to, and never did, decide whether plaintiff’s fraud count stated a claim upon which relief can be granted. See MCR 2.116(C)(8). We leave it for the lower court on remand to address this matter. Therefore, on this issue, we reverse the lower court’s denial of plaintiff’s motion for rehearing because the trial court erred in concluding that plaintiffs fraud allegations were only subject to the four-year period of limitation in MCL 440.2725; MSA 19.2725.
Plaintiff next contends that the trial court erred in granting XPC’s motion for partial summary disposition because genuine issues of material fact existed regarding plaintiff’s fraud claim.
This Court’s review is limited to issues actually decided by the trial court. Michigan Mutual Ins Co. v American Community Mutual Ins Co, 165 Mich App 269, 277; 418 NW2d 455 (1987). In this case, plaintiff argues that the lower court improperly granted partial summary disposition pursuant to MCR 2.116(0(10). Defendant counters that plaintiff failed to state a claim upon which relief can be granted. MCR 2.116(C)(8). We note that the trial court’s ruling only addressed the application of the statute of limitations. MCR 2.116(C)(7). The trial court has not yet ruled on any MCR 2.116(C)(8) or (10) issues. Since these matters were not before the trial court, they are not properly before us.
Plaintiff’s last contention raised on appeal is that the lower court abused its discretion in denying its motion for leave to file a second-amended complaint. We agree.
Leave to amend a complaint "shall be freely given when justice so requires.” MCR 2.118(A)(2). A motion to amend a complaint should be denied only for such specific reasons as futility, failure to cure deficiencies by amendments previously allowed, undue delay, prejudice to the nonmoving party, or bad faith or dilatory motive by the movant. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973); Muilenberg v Upjohn Co, 169 Mich App 636, 645; 426 NW2d 767 (1988). Prejudice sufficient to justify denial of a motion for leave to amend a complaint arises when amendment would prevent a party from having a fair trial. Upjohn, supra, p 645.
In this case, one day after the trial court granted IPC’s motion for partial summary disposition, plaintiff filed a motion for leave to file a second-amended complaint containing five additional counts. In response to the court’s inquiry, plaintiff stated that its purpose in seeking leave to amend was to assert claims on new information obtained through discovery, and to assert claims that would be unaffected by the court’s application of the statute of limitations in MCL 440.2725; MSA 19.2725. IPC opposed the motion stating that plaintiff had filed it in bad faith and had engaged in undue delay. At the conclusion of the hearing, the court denied the motion. In response to plaintiff’s request that the court state specifically its reasons for denying the motion, the court made the following remarks:
Sir, I think, as I indicated, I spent a great deal of time and I know counsel has, and I think this matter, these matters should have been raised prior to this time, and it is an '85 case, and I see, actually, no reason why it did not come up prior to this time. I have allowed one amendment and I have heard, I don’t know how many different times you gentlemen have been in Court on this matter, and briefed different points and I don’t see how you could brief around this point without having it for the record, and before the Court, and that is the Court’s ruling.
It is apparent from the above remarks that the trial court focused solely upon plaintiff’s delay in filing its motion to amend the complaint. We note that plaintiff’s second-amended complaint pleads no new facts whatsoever. Rather, plaintiff seeks to derive from facts already pled different legal theo ries upon which relief may be afforded. Moreover, the court did not find that IPC would be unduly prejudiced if plaintiff amended its complaint. Delay without more, such as undue prejudice, does not mandate the denial of a motion to amend. Davis v Chrysler Corp, 151 Mich App 463, 473-474; 391 NW2d 376 (1986), lv den 428 Mich 869 (1987). The prejudice justifying the denial of a motion to amend is not prejudice arising from the amendment’s effect on the result of trial or loss of a meritorious claim or defense, but is, rather, prejudice preventing a party from having a fair trial. Fyke, supra, pp 657-658; Chrysler Corp, supra, p 474.
Based on the foregoing, we conclude that the trial court inappropriately denied plaintiff’s motion to amend its complaint based solely on dilatory filing. Therefore, we reverse the lower court’s denial of plaintiff’s motion to amend its complaint.
Reversed and remanded for proceedings consistent with this opinion.
Although not relevant to the instant appeals, various corporate mergers have taken place between IPC Communications, Inc., and IPC Technologies, Ltd., which have resulted in a single corporate entity, Contel Financial Systems, Inc. For ease of reference, the various defendants will be referred to as IPC or defendant.
The warranty in Shatterproof was footnoted in the United States Court of Appeals opinion as follows:
The exact language of this alleged warranty contained in a Shatterproof Technical Bulletin, incorporated by reference into the complaint, was as follows:
"Subject to the conditions below, Shatterproof Glass Corporation warrants its insulating glass units for a period of twenty (20) years from the date of manufacture against defects in material or workmanship that result in moisture accumulation, film formation or dust collection between the interior surfaces, resulting from failure of the hermetic seal. Purchaser’s exclusive remedy and Shatterproofs 'total’ liability under this warranty shall be limited to the replacement of any lite failing to meet the terms of this warranty. Such replacement will be made F.O.B. Detroit to the shipping point nearest the installation.” [Shatterproof Glass, supra, p 822, n 3.]
General Electric, supra, p 171, n 1:
"The Company warrants to the Purchaser that the equipment to be delivered hereunder will be free from defects in material, workmanship and title and will be of the kind and quality designated or described in the contract. The foregoing warranty is exclusive and in lieu of all other warranties whether written, oral, or implied (including any warranty of merchantability or fitness for purpose). If it appears within one year from the date of shipment by the Company that the equipment delivered hereunder does not meet the warranties specified above and the Purchaser notiñes the Company promptly, the Company shall thereupon correct any defect, including non-conformance with the specifications, at its option, either by repairing any defective part or parts or by making available at the Company’s plant, a repaired or replacement part.” [Emphasis in General Electric.] | [
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Per Curiam.
Plaintiffs appeal from a May 21, 1986, order of the Workers’ Compensation Appeal Board is before this Court on remand from our Supreme Court for consideration as on leave granted. 428 Mich 864 (1987).
Plaintiff, an employee of the Central Foundry Division of General Motors Corporation at the Saginaw Malleable Iron Plant, retired on March 27, 1971. Plaintiff received workers’ disability compensation benefits under an open award entered December 2, 1971, for work-related injuries. In April, 1982, plaintiff received a letter from defendant informing him that his compensation would be reduced by a setoff against other employer-financed pension and social security benefits, pursuant to MCL 418.354; MSA 17.237(354), effective March 31, 1982.
After gmc ceased paying plaintiff’s disability benefits, as a result of the setoff plaintiff filed a petition with the Bureau of Workers’ Disability Compensation objecting to the application of § 354 to his case on the ground that his injury predated the effective date of the statute. The hearing referee ruled in plaintiffs favor and ordered gmc to recommence payment of seventy percent of the disability benefits to plaintiff pending further appeal.
The wcab affirmed the referee’s decision based on its own decision in Chambers v General Motors Corp, 1982 WCABO 751. Knuckles v Saginaw Malleable Iron Plant, Central Foundry Division, General Motors Corp, 1983 WCABO 607. However, the wcab ordered defendant to resume paying one hundred percent of the weekly disability benefits to plaintiff.
This Court denied defendant’s application for leave to appeal on November 21, 1983, Docket No. 73106, and defendant’s application to our Supreme Court for leave to appeal was held in abeyance pending that Court’s resolution of the same issue in Chambers v General Motors Corp, 422 Mich 636; 375 NW2d 715 (1985). After deciding Chambers, our Supreme Court reversed the wcab and remanded this case to the wcab for entry of judgment consistent with that decision. 424 Mich 884 (1986). On remand, the wcab ordered coordination of plaintiff’s social security, pension and workers’ compensation benefits. Plaintiff unsuccessfully applied for leave to appeal that decision to this Court, order of November 3, 1986, Docket No. 93308, and once again applied to our Supreme Court for leave to appeal. In lieu of granting leave to appeal, our Supreme Court remanded plaintiff’s case to this Court for consideration as on leave granted.
The first issue raised is whether the amount of benefits coordinated in a setoff against workers’ compensation benefits under § 354 is to be determined as of the initial date the employee becomes entitled to those benefits or as of the date those benefits first become subject to the statute’s provisions, i.e., March 31, 1982. Section 354 allows an employer to reduce its liability for payment of workers’ disability compensation benefits to an employee who is also receiving social security or any other employer-financed benefits:
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 by these amounts:
(a) Fifty percent of the amount of the old-age insurance benefits received or being received under the social security act.
(d) The after-tax amount of the pension or retirement payments received or being received pursuant to a plan or program established or maintained by the same employer from whom benefits under section 351, 361, or 835 are received, if the employee did not contribute directly to the pension or retirement plan or program. Subsequent increases in a pension or retirement program shall not affect the coordination of these benefits.
(7) A credit or reduction under this section shall not occur because of an increase granted by the social security administration as a cost of living adjustment.
At the time plaintiff retired, he was eligible for and received monthly pension and social security benefits over and above his disability compensation. Pursuant to the wcab’s order of May 21, 1986, defendant coordinated the benefit amount plaintiff was receiving at the time § 354 became effective, resulting in plaintiff’s entitlement to no workers’ disability compensation. Plaintiff argues that the § 354 setoff reductions should be applied to the initial benefit amount to which plaintiff became entitled at the time he retired in 1971. The advantage to plaintiff in computing the setoff based upon initial benefits is obvious:
Defendant points to the "received or being received” phrase found in § 354(d) to support its position and contends that the lack of express limitation to "initial” benefit amounts leads to the inference that the amount of benefit entitlement at the time coordination first becomes applicable is the correct figure for computing the setoff.
This Court agrees with defendant. Although the Chambers Court did not address this issue, calculations made by that Court appear to have used the benefit amounts employees were receiving as of March 31, 1982. Chambers, supra, pp 646-648, 659-660. In the cases discussed in the Chambers opinion, our Supreme Court affirmed § 354 setoff calculations which resulted in no workers’ compensation entitlement and reached results consistent with the Legislature’s purpose in enacting § 354, as well as the workers’ disability compensation system. Id., pp 654, 665-666.
The coordination and setoff provisions were enacted to eliminate and prevent duplicative payment of workers’ compensation benefits to retired employees who were also receiving pensions, social security, or both. Id., p 658. Workers’ compensation, pensions, social security old-age benefits, and other similar benefits are designed to remedy the loss of wage-earning ability. This Court recognizes the definite reality that a retired person may still have a wage-earning capacity that could be impaired by a preretirement work-related disability entitling him to workers’ compensation as well as pension and social security benefits. However, it follows that this is the very reason the Legislature chose to remedy the situation by a setoff of duplicative benefits, as opposed to pure elimination of workers’ compensation benefits to retired employees.
We note that plaintiff’s argument for calculation from the initial entitlement date ignores two factors. First, plaintiff neglected to indicated whether initial or current workers’ compensation benefit amounts were used in the calculation. This Court submits that, regardless of which is the correct setoff date, the workers’ compensation benefit amount from that same date must be used. Second, and more important, plaintiff ignores the fact that the supplemental benefits he receives under MCL 418.352; MSA 17.237(352) are not subject to coordination or setoff. MCL 418.354(1); MSA 17.237(354X1). This supplemental benefit, which was intended to update the amount of workers’ compensation benefits paid to employees disabled between September 1, 1965, and December 31, 1979, had been included in plaintiff’s disability compensation benefits since January 1, 1982. Plaintiff will continue to receive the supplemental amount even if his regular workers’ compensation benefits are completely eliminated. Chambers, supra, p 660.
We conclude that the Legislature intended a setoff of the pension and social security benefit amounts plaintiff was currently receiving as of March 31, 1982, the effective date of § 354. Statutory prohibitions against reductions in workers’ compensation benefits due to a larger possible setoff from cost-of-living increases in social security or pensions should apply to increases after this initial coordination and subsequent reduction of benefits. Section 354, subds (l)(d) and (7).
Plaintiff’s second claim is that employees whose disability dates precede the effective date of § 354, i.e., March 31, 1982, are denied equal protection of the law by application of the coordination provision to their benefits as of that date.
The legislative rationale behind the enactment of § 354 was to prevent the abuse of the workers’ compensation system and its purpose through duplicative receipt of workers’ compensation benefits as well as social security and pension benefits. Chambers, supra, pp 655-658. The elimination of this perceived abuse was a legitimate goal which could ultimately result in savings of millions of dollars in duplicative benefit payments. Further, the Legislature also had a legitimate interest in seeing that voluntarily retired employees not receive more money through duplicative payments than those employees would have ever earned on the job. The Chambers Court recognized that avoiding this disincentive to work was an interest justifying literal application of the coordination provision to all employees regardless of whether their injury predated the statute. Id., p 658.
Further, the attention given to protecting supplemental benefits of employees injured prior to 1979 from coordination and the regular benefits of employees over the age of sixty-five from age reduction demonstrates that the Legislature was aware of possible unequal or discriminatory treatment of a certain class of employees. The practical result of these protective provisions is that employees like plaintiff injured prior to 1979 and retired prior to 1982, and who are eligible for workers’ compensation, pension, and social security benefits, stand on equal footing with employees eligible for the same benefits after 1982. Coordinating benefits based on amounts currently received at the time the statute becomes applicable to the particular employee is not unequal or discriminatory operation nor an application of § 354 that violates plaintiff’s constitutional right to equal protection of the law.
The third and final issue presented is whether plaintiff is barred from raising the issue concerning the correct coordination calculation date under § 354 by the doctrine of res judicata or, in the alternative, whether plaintiff failed to preserve the issue below.
In light of our Supreme Court’s remand of this case and this Court’s holding, these issues are moot. Crawford Co v Secretary of State, 160 Mich App 88, 93; 408 NW2d 112 (1987).
This case is remanded to the wcab for entry of an order consistent with this Court’s decision. | [
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Per Curiam.
Plaintiff, Brian Truitt, appeals as of right from an order changing the custody of his two minor children. The circuit judge ruled that it was in the best interests of the children to change their physical custody from plaintiff to defendant, Janice Truitt. We reverse.
Plaintiff and defendant were divorced in September of 1982. Plaintiff was granted physical custody of their three daughters: Mindy, born January 20, 1970; Carrie, born October 26, 1973, and Stacey, born April 9, 1975. Plaintiff and his daughters continued to live in the marital home until the ordered change of custody.
Defendant moved to change the custody of the children in December of 1985. The court referred the custody of the two youngest daughters to the friend of the court, which conducted an investigation and recommended changing custody to defendant. Plaintiff objected to this recommendation, so the friend of the court held an evidentiary hearing, and again recommended changing custody tó defendant. Plaintiff again objected to the friend of the court’s recommendation.
An evidentiary hearing was held before the circuit court on February 4, 1987. Defendant first called plaintiff as an adverse witness. Plaintiff testified that his former girlfriend had previously spent weekends and stayed overnight with plaintiff at his home while his daughters were present, but that she had not done so in over one year. Plaintiff had three girlfriends since his divorce in 1982, and was presently engaged to his latest girlfriend. Plaintiff earned $700 per week and netted $370 per week after paying alimony. Plaintiff left for work at 7:00 a.m., so he was not usually home when his two youngest daughters were picked up by the school bus at 7:35 a.m. His two youngest daughters missed the bus from time to time, requiring plaintiff to come home from work and to drive them to school. Plaintiff later testified that the girls had no attendance problem at school. One of the girls failed a class in school while in his custody. His ^oldest daughter, Mindy, had taken over the cooking at home because she enjoyed cooking. The two oldest daughters also did the laundry occasionally. Plaintiff had breakfast food in the home, but the girls did not eat breakfast because they did not like to eat in the morning. He ensured that there was enough food in the home, but the girls complained about the lack of snack foods. Plaintiff testified that he never gave his daughters permission to use birth control devices.
Defendant testified that she worked as a paralegal and earned $400 per week. She described the girls’ clothing as filthy, and said that she received complaints from officials at the girls’ school that they were dirty and that they smelled. Defendant testified that she did not have unrelated men stay at her home when the girls stayed with her and that she believed that plaintiff was not morally fit. (Plaintiff later testified that defendant did have men stay overnight while the girls visited her.) Defendant testified that plaintiff would not give her the girls’ school records. The two youngest daughters told her that they wanted to live with her, and that there was no food in plaintiff’s house. The girls complained that they had to cook their own meals and do their own laundry.
Defendant stated that she lived in a two-bedroom townhouse in a government-subsidized housing project in Union Lake, Michigan. Defendant’s lease requires that two children live with her. Plaintiff characterized defendant’s apartment complex as a welfare complex and said it is a problem neighborhood with a high rate of crime and drug use. Plaintiff and his daughters lived in a house in Milford, Michigan, in a semirural upper middle class neighborhood.
On February 9, 1987, the circuit court issued an opinion finding by clear and convincing evidence that it would be in the best interests of the two youngest daughters to change their physical custody from plaintiff to defendant. Plaintiff raises four issues for review.
Our review of a custody decision is de novo, but is limited by §8 of the Child Custody Act, MCL 722.28; MSA 25.312(8), which provides:
To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.
First, plaintiff argues that the trial judge erred so as to require reversal by basing his decision on the hearings and findings of the friend of the court.
The trial court may consider a friend of the court’s report, but must reach its own conclusions:
"Such a report is authorized by statute for the consideration of the circuit judge.” Krachun v Krachun, 355 Mich 167, 169; 93 NW2d 885 (1959), MCL 555.253; MSA 25.173. "The trial judge may consider the report in reaching his decision, but the report is inadmissible as evidence unless all of the parties agree otherwise.” McCarthy, [v McCar thy, 74 Mich App 105, 109; 253 NW2d 672 (1977)]. The trial judge remains "in duty bound to exercise his own judgment on properly received evidence” Brugel v Hildebrant, 332 Mich 475, 484; 52 NW2d 190 (1952). [Nichols v Nichols, 106 Mich App 584, 588; 308 NW2d 291 (1981).]
This Court has also explained that the circuit court’s custody decision must be based upon its own evidentiary hearing, rather than the friend of the court’s hearing and conclusions:
DQt is clear from the statute that the circuit court must, upon motion by either party, conduct a "de novo hearing,” rather than simply provide de novo review. MCL 552.507(5); MSA 25.176(7)(5). The distinction is one that has meaning and, in the context of trials, has been extensively discussed by this Court in Walker v Wolverine Fabricating & Mfg Co, Inc, 138 Mich App 660; 360 NW2d 264 (1984), lv grtd 422 Mich 858 (1985), and in Anderson v General Motors Corp, 138 Mich App 581, 585; 360 NW2d 251 (1984). Where a trial de novo is required, the circuit court is required to proceed as if no "prior determination had been made and arrive at an independent decision.” Anderson v General Motors Corp, supra, 138 Mich App 585. We hold that the de novo hearing guaranteed under MCL 552.507(5); MSA 25.176(7X5) requires the circuit court, on motion of any party dissatisfied with a recommendation of the friend of the court, to conduct a hearing as if no friend of the court hearing had been conducted previously and arrive at an independent conclusion. [Marshall v Beal, 158 Mich App 582, 591; 405 NW2d 101 (1986).]
The circuit court’s opinion and order changing custody to defendant reads:
The Court has reviewed Defendant’s Brief and Supplemental Brief, and Plaintiff’s Brief and Ob jections to the Friend of the Court’s Custody Recommendation of December 11, 1986. The Court has also extensively interviewed the minor children, Carrie and Stacy. The Court further held an evidentiary hearing on February 4, 1987 and heard exhaustive testimony from Plaintiff and Defendant. Based on the foregoing, the Court is in agreement with and adopts the findings of fact by the Friend of the Court Referee.
The Court must note at the outset, that the Referee held extensive Evidentiary Hearings encompassing three (3) days concerning said matter. The Court concurs with the Referee that an established custodial environment exists and that the testimony presented established clear and convincing evidence that it is in the best interest of the children that physical custody be changed to Defendant mother.
Therefore, it is the opinion of the Court that based upon the testimony presented by the parties, the hearings and findings of the Referee, and the exhaustive interview of all the children, the Court finds that even though there is an established custodial environment with Plaintiff, father, the testimony presented establishes clear and convincing evidence that it is in the best interest of the minor children that physical custody be changed to Defendant, mother.
The parties did not stipulate to allowing the friend of the court’s recommendations or report into evidence. The language used by the trial court indicates that it did not arrive at an independent conclusion based upon a hearing de novo, but instead reviewed and adopted the friend of the court’s findings. The trial court also made fact findings which were not supported by the testimony at its own hearing, but evidently were supported by the friend of the court’s investigation and hearing. This is a clear legal error which requires reversal and a new hearing.
Plaintiff also argues that the trial court erroneously determined that plaintiff was not morally fit compared to defendant. Section 3 of the Child Custody Act, MCL 722.23; MSA 25.312(3), reads:
"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.
(j) 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.
In reference to factor (f), the parties’ comparative moral fitness, the trial court stated:
As to factor f, the moral fitness of the competing parties, the Court also finds in favor of Defendant, mother. Plaintiff openly admits that he had sexual relations with his girlfriend while the minor children were at home and that his girlfriend frequently slept over at the home on weekends for a period extending nine months. It also appears that other non-related females have also spent the night or weekends during the same period of time. Moreover, Plaintiff admitted during the Court hearing that there was nothing wrong with having lady friends spending the night or weekend at the marital home, even though the minor children are at such a young and impressionable age.
Standing alone, unmarried cohabitation is not enough to constitute immorality under the Child Custody Act. Williamson v Williamson, 122 Mich App 667, 673; 333 NW2d 6 (1982); Snyder v Snyder, 170 Mich App 801; 429 NW2d 234 (1988). The trial court’s reference to admissions by plaintiff that this behavior was appropriate, and to "other nonrelated females” spending the night, is not supported by testimony presented at the evidentiary hearing. This finding is a clear legal error which affected the court’s other findings, and requires reversal.
The trial judge’s finding on the issue of morality also affected his findings on other factors, and seemed to color his view of the entire matter. Regarding factors (d) and (e), the court concluded:
As to factor d, the length of time the children have lived in a stable, satisfactory environment and the desirability of maintaining that continuity, the Court finds that there is no advantage to maintaining the status quo based on the other factors provided in this test.
As to factor e, the permanence as a unit of the existing or proposed custodial home, the Court finds in favor of Defendant, mother. Even though Plaintiff resides in the marital home and Defendant resides in a two bedroom town house complex, the fact that the circumstances listed in Factor f occurred gives Defendant a distinct advantage.
A trial judge must consider, evaluate, and determine each of these factors individually to determine the best interests of the child. In re Flynn, 130 Mich App 740, 757; 344 NW2d 352 (1983). Here the trial court did not consider and evaluate factors (d) and (e) individually; instead he based his findings upon the erroneous conclusion reached in deciding factor (f). This is a palpable abuse of discretion which requires reversal and a rehearing. Due to the trial judge’s apparent moral indignation, he will be spared revisiting the issue in this case. Rehearing will be held before a different circuit judge.
Plaintiff also argues that the trial court’s findings regarding § 3 of the Child Custody Act were against the great weight of the evidence. However, it is not necessary to consider this issue because this case will be remanded for a rehearing which will require a new presentation of evidence and fact findings based solely upon that evidence.
Plaintiff also argues that the trial court erred by allowing the admission of hearsay statements. At trial the defendant testified regarding several statements made by her children:
Q. Do you believe that Mr. Truitt is a morally fit parent?
A. No, I don’t.
Q. Why is that?
A. Because I know he has females staying in the same home with my daughters, and I know that their reaction to that is that’s okay, it’s fine to do that and I don’t think it is.
* * *
Q. Have the children ever told you there is no food in the home?
A, Yes.
* * *
Q. Did the children ever complain to you that they did not maintain a visitation schedule with you because they were forced into babysitting for Mr. Truitt’s girlfriend’s children?
A. Yes, Kerry told me that severed times.
The trial court erroneously allowed this testimony over plaintiffs objection. This testimony was offered into evidence to prove the truth of the matters asserted in the childrens’ statements, and so was hearsay, and not admissible. MRE 801(c), 802. These statements are not excepted from the hearsay rule by MRE 803 or 804. Since the facts asserted in these statements were not shown by other competent evidence at the hearing, this error was not harmless.
For the foregoing reasons, we reverse the circuit court’s order changing physical custody from the plaintiff to defendant, and remand this case for a new hearing before a different trial judge.
Reversed and remanded.
M. Warshawsky, J., concurs in the result only. | [
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Per Curiam.
Does the employer’s duty to accommodate, as set forth in the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., extend only to persons whose handicap "is unrelated to the individual’s ability to perform the duties of a particular job”, or does it extend to persons whose handicap is related to the particular job unless it is demonstrated that the accommodation would impose an undue hardship? On April 22, 1983, the trial court held that the obligation extended only where the handicap was unrelated to the employee’s ability to perform the job in question and granted summary judgment to defendant. Plaintiff appeals as of right.
On September 1, 1981, plaintiff filed a complaint in the circuit court for Wayne County alleging that he was discriminated against because of a handicap in violation of the Michigan Handicappers’ Civil Rights Act (HCRA). In his complaint, plaintiff alleges that he was employed by defendant on the current product engineering staff in Warren, Michigan, that on August 3, 1972, he underwent a back operation for excision of a ruptured disc, and that as a result of the operation, a weight lifting restriction was placed on plaintiff.
The complaint further alleged that on April 5, 1979, defendant offered plaintiff a job transfer to the dimension group engineering staff in Warren, that the job position offered plaintiff occasionally involved lifting objects in excess of the weight lifting restrictions imposed upon plaintiff, that there were other employees in the dimension group who were physically able to perform the lifting which exceeded plaintiff’s restrictions, that defendant could have accommodated plaintiff in the position offered without undue hardship but nevertheless refused to accommodate plaintiff’s handicap as required by statute, and that, as a result of such illegal discrimination, plaintiff suffered damages in lost wages and other job-related benefits.
On March 23, 1983, defendant moved for summary judgment on the ground that the handicap which plaintiff claimed to have was not a "handicap” as defined in HCRA. After presentation of oral and written arguments, the trial court granted the motion and by order dated April 22, 1983, plaintiffs complaint was dismissed with prejudice. In his order, the trial judge found that, based on the pleadings, plaintiff had "failed to state a cause of action under the Michigan Handicappers’ Civil Rights Act”.
On appeal defendant argues, as it did before the trial court, that the HCRA does not protect all persons with handicaps, but only protects persons with handicaps "unrelated to the individual’s ability to perform the duties of a particular job or position”. In support of this position, defendant says that § 103(b) pointedly states that for purposes of employment a "handicap” is a physical or mental characteristic "unrelated to the individual’s ability to perform the duties of a particular job or position”. Since plaintiffs back condition with the weight lifting restriction imposed thereon is clearly related to the particular job position in question, defendant asserts that plaintiffs condition is not a handicap under the HCRA, and that the trial court was eminently correct in granting summary judgment. Additionally, defendant notes that three recent decisions of the Michigan Court of Appeals have held that the HCRA’s protection applies only if the employee "can demonstrate that his handicap is unrelated to his ability to perform the duties of his job”. Shelby Twp Fire Dep’t v Shields, 115 Mich App 98, 103; 320 NW2d 306 (1982); Dady v Rochester School Bd, 90 Mich App 381, 389-391; 282 NW2d 328 (1979); Armstrong v Senior Citizens Housing of Ann Arbor, Inc, 112 Mich App 804; 317 NW2d 255 (1982).
Plaintiff argues that defendant’s reliance on this Court’s decisions in Dady and Armstrong, supra, is suspect because neither of those cases involved employment and, at the time those cases arose, the statute did not include a duty to accommodate a handicapped person in either education or housing. As a result of the Dady decision, the Legislature amended the HCRA so as to impose the obligation to accommodate in employment. 1980 PA 478. That amendment added a new subsection to § 102 reading:
"(2) A person shall accommodate a handicapper for purposes of employment, public accommodation, public service, education, or housing unless the person demonstrates that the accommodation would impose an undue hardship.”
Plaintiff argues that this amendment introduces a new element in the statute which demonstrates the Legislature’s intent that the employer’s duty to accommodate is present even where the handicap is related to a particular job, provided that such duty is not established as imposing an undue hardship. According to plaintiff, the new language makes it improper to grant summary judgment merely because the handicap is related to the person’s ability to perform the job; instead, the proper inquiry is whether plaintiff could perform the job if General Motors had made an accommodation for the handicap and whether or not such accommodation would impose an undue hardship on General Motors, these being questions of fact which should go to the jury.
The strict interpretation of the statute urged by defendant in the instant case was recently rejected in Wardlow v Great Lakes Express Co, 128 Mich App 54; 339 NW2d 670 (1983). There, on facts strikingly similar to the situation before us, the trial judge dismissed plaintiffs complaint after a two-day trial. Plaintiff, a truck driver from 1955 to 1978, ruptured a disc in his back in 1956. He returned to the job in 1958 with a 50-pound weight lifting restriction. In 1962, he switched from being an "over-the-road” driver to a city driver. City driving was a more strenuous job than "over-the-road” driving. After being laid off in early 1978 from the city driving job, he requested to return to "over-the-road” work, but, because of the weight lifting restriction, defendant refused to accommodate. Plaintiff sued on grounds that defendant’s refusal violated the HCRA. On appeal, defendant argued that plaintiffs injury did not qualify as a "handicap” since the injury was not "unrelated” to the job. That is precisely the defense raised in the case before us. Our Court rejected the defense saying in relevant part:
"Literally reading the act strongly supports defendant’s argument that plaintiff is not 'handicapped’ under the act. These four duties are to some extent 'related’ to the job. Therefore, the handicap is to some extent related to the job. Defendant argues that, because plaintiff is not a handicapper under the act, it has no duty to accommodate.” Wardlow, p 59.
"If we were to accept defendant’s arguments, the act would be practically meaningless. MCL 37.1102; MSA 3.550(102) requires accommodation. However, if we ruled that an employer need not accommodate whenever the handicap is related in any way to the job, we would be ruling that the employer need accommodate only if the handicap is not related to the work. Of course, in that situation, no accommodation is needed in the first place. In other words, defendant’s interpretation requires accommodation only when no accommodation is needed.” Wardlow, p 61.
"Therefore, we are ruling that the act requires that the employer accommodate the employee for any handi cap unless the employer shows that such accommodation will result in undue hardship.” Wardlow, p 64.
Wardlow was not released until after briefs had been submitted in the instant appeal. Not surprisingly, upon oral argument, counsel for defendant argued that Wardlow was improperly decided and plaintiffs counsel contended that it was one of the finest opinions to come down the appellate pike. This panel unanimously agrees with the reasoning and decision in Wardlow, but, because of the importance of the decision involved, decided to inquire further into the merits of the respective claims advanced. Specifically, we inquired further as to whether the Legislature, in enacting 1980 PA 478 which added a new subsection (102[2]) to the statute, intended to strengthen the employer’s obligation to accommodate so as to include instances where the obligation existed even though the handicap in question bore some relationship to the job opportunity involved.
1980 PA 478 was introduced by Representative Lynn Jondahl as House Bill 5110. The first analysis of HB 5110, dated April 22, 1980, made by the House Legislative Analysis Section, reads in relevant part:
"The bill would replace the current language specifying the obligation of employers to accommodate handicapped employees or applicants with the broader provision that all parties would be required to accommodate handicappers for purposes of employment, public accommodation, public service, education, or housing unless it was demonstrated that the accommodation would impose an undue hardship.” (Emphasis added).
The bill passed the House after some amendments, not pertinent to the instant inquiry, and went to the Senate. There, a bill analysis issued by the Senate Analysis Section on December 8, 1980, contains this explanation of the proposed bill:
"The bill would amend several provisions of the Michigan Handicappers’ Civil Rights Act as follows:
"The bill would replace the current language specifying the obligation of employers to accommodate handicapped employees or applicants with the broader provision that all parties would be required to accommodate handicappers for purposes of employment, public accommodation, public service, education, or housing unless it was demonstrated that the accommodation would impose an undue hardship.”
The bill passed the Senate without modification of the proposed new subsection 102(2) and was returned to the House where it was enrolled. A second analysis of HB 5110 as enrolled was issued by the House Legislative Analysis Section. That analysis repeats verbatim the language describing the content of the bill appearing in the first analysis, referred to earlier.
Admittedly, there is a conflict between the plain language of § 202(l)(a) that "an employer shall not fail or refuse to hire * * * an individual because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position” and the language of newly added § 102(2) that the employer shall accommodate "unless * * * the accommodation would impose an undue hardship”. Understandably, the trial court relied on the wording of § 202(l)(a) and the decisions of this Court in Shields, supra, and Dady, supra, as justification for issuing the summary judgment to defendant. However, based upon this Court’s deci sion in Wardlow and the several references contained in the bill analysis of HB 5110, we conclude that in 1980 PA 478 the Legislature specifically intended to redefine the employer’s duty to accommodate by including an obligation to accommodate even if the handicap was job related, provided that that obligation would not impose an undue hardship on the employer. Any other interpretation would destroy the legislative intent. For if no obligation exists unless the handicap is job unrelated, no accommodation would be required.
Accordingly, the trial court’s order of summary judgment is vacated and the cause remanded for trial on the merits. At such hearing, defendant may present proofs that accommodation in the instant situation would impose an undue hardship.
Reversed and remanded in accordance with this opinion. No costs, a question of public importance being involved.
One member of the Wardlow panel, Judge Allen, is a member of the panel on the instant case. | [
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R. L. Tahvonen, J.
Defendants appeal from the July 17, 1981, decision of the Workers’ Compensation Appeal Board (WCAB) affirming the award of death benefits to plaintiff, Norene Loper.
Decedent, Calvin Loper, had been a volunteer fire fighter for defendant Cascade Township for over ten years. Following an incident in which a boy drowned, decedent and several other Cascade Township volunteer fire fighters enrolled in a scuba diving course so that they might, in the future, be better able to respond to water emergencies. On September 20, 1975, decedent accidentally drowned while taking a certification test as part of that course.
On May 11, 1976, Norene Loper filed a petition for workers’ compensation death benefits. The hearing officer awarded benefits and the WCAB affirmed. Defendants’ application for leave to appeal to this Court was denied on May 17, 1982. On April 26, 1983, the Supreme Court remanded the case to this Court for consideration as on leave granted. 417 Mich 969 (1983).
I
The findings and conclusions of the WCAB are set forth below:
"It was unrebutted that the idea of a scuba diving class first surfaced when decedent was called, as a volunteer fireman working for defendant, to a gravel pit where a boy had drowned. The firemen talked between themselves that it would be a good thing for the township and they could be of better service if they were certified scuba divers. Defendant admitted, at oral argument, that the subject was discussed at one of the business meetings of the fire department. The so-called volunteers were reimbursed at the rate of six dollars an hour for fighting fires and each monthly business meeting. The fire chief testified he asked decedent if he were interested in taking the course, when decedent had dropped by the firehouse on a visit. The fire chief further indicated volunteers were not paid for taking the course but said he told the men that, if there was any money available at the end of the fiscal year, he would see if he could get them reimbursed. The fire chief stated he made monthly reports to the township council on the progress of the firemen taking the course. He admitted, as did the township manager, that the fire department and the township would be better served as a result of the men taking the scuba diving course.
"Defendant frames the issue on appeal, that at the time of Mr. Loper’s death, 'was he in the performance of his duties as a member of the volunteer fire department for Cascade Township?’
"We answer in the affirmative. The idea was conceived while the volunteers were in the course of an unsuccessful attempt to rescue a drowning boy. The idea was further discussed during a business meeting of the volunteers and firemen of Cascade Township. Decedent was asked by the chief of Cascade Township Fire Department if he wanted to take the course. Progress reports were made to the township board regarding the men taking the course. Both the chief and a township official agreed that the fire department was better equipped to serve and the township was better off as a result of the firemen taking the course.
"We find plaintiff has sustained her claim that decedent was acting in the scope of his employment as a volunteer fireman working for defendant at the time of his death, by a great preponderance of the evidence. The above facts far outweigh defendant’s argument that the township board did not directly seek out each volunteer and ask them to take the course. It remains undisputed that, acting in his official capacity, the fire chief did ask decedent to take the course.”
II
We disagree with defendants’ contention that the WCAB’s decision fails to comport with the requirements of MCL 418.859; MSA 17.237(859). We find that the decision does provide a sufficiently detailed basis to allow effective appellate review and complies in all respects with the statute and Nunn v George A Cantrick Co, Inc, 113 Mich App 486; 317 NW2d 331 (1982).
III
This Court’s review of a WCAB decision is very limited:
"We are charged with the responsibilities of reviewing questions of law, determining whether there is any fraud, and deciding whether there is any competent evidence in the record to support the findings of fact made by the appeal board. MCL 418.861; MSA 17.237(861), Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978).” Fuchs v General Motors Corp, 118 Mich App 547, 552; 325 NW2d 489 (1982), lv den 417 Mich 1077 (1983).
Defendants seek review of a question of law, namely, whether the WCAB applied an incorrect standard in awarding benefits.
MCL 418.161; MSA 17.237(161) provides in part:
"(1) As used in this act, 'employee’ means:
"(a) * * * Members of a volunteer fire department of a city, village, or township shall be considered to be employees of the city, village, or township, and entitled to all the benefits of this act when personally injured in the performance of duties as members of the volunteer fire department.”
MCL 418.301; MSA 17.237(301) states in part:
"(1) An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. In the case of death resulting from the personal injury to the employee, compensation shall be paid to the employee’s dependents as provided in this act.”
Defendants argue that this case is controlled by the "in the performance of duties” language in § 161 which, according to defendants, is a much narrower standard than the "arising out of and in the course of employment” standard in § 301. We note that defendants did not specifically raise this issue before the WCAB. While this Court will not ordinarily consider an issue raised for the first time on appeal, the rule is not inflexible and will not be applied where consideration of the issue is necessary to a proper determination of the case or where the issue is one of law concerning which the necessary facts have been presented. We find these conditions present in the case before us and will therefore address the question.
It is this Court’s opinion that the Legislature did not by its use of the phrase "personally injured in the performance of duties as members of the volunteer fire department” intend that volunteer fire fighters should be held to a stricter standard for proving entitlement to benefits than ordinary employees under the act. To the contrary, we believe that inclusion of volunteer fire fighters within the definition of "employee” in § 161 was intended to place such persons on the same footing as ordinary employees. In reaching this conclusion we are mindful of the established principle that the Worker’s Disability Compensation Act is remedial in nature and should be construed in a liberal and humanitarian manner in favor of the employee. Fuchs v General Motors Corp, supra, p 554.
In Marcotte v Tamarack City Volunteer Fire Dep’t, 120 Mich App 671; 327 NW2d 325 (1982), the plaintiff, a volunteer fireman, was injured in an automobile accident which occurred while plaintiff was on a direct route home from the Copper County Firemen’s Tournament, an annual event in which members of various departments in the region were invited to participate. The WCAB treated the tournament as akin to a convention or an educational seminar and determined that plaintiff’s injuries arose out of and in the course of his employment as a volunteer fire fighter, using a two-part test of (1) whether the employer directly benefited by the employee’s attendance and (2) whether attendance was compulsory or at least definitely urged or expected as opposed to merely encouraged. The Court held that the WCAB applied the correct standard. The Marcotte decision clearly supports application of the "arising out of and in the course of employment” standard to claims of volunteer fire fighters, although we note that the Court did not specifically discuss the effect of the phrase "in the performance of duties” in §161.
We believe a reasonable explanation for the Legislature’s use of the phrase "in the performance of duties” was offered by the Supreme Court of New Jersey in Cuna v Bd of Fire Comm’rs, Avenel, 42 NJ 292; 200 A2d 313 (1964). In that case the claimant, a member of a volunteer fire company, was asked by the company’s athletic chairman to play on the company’s softball team involving league play with six other volunteer fire company teams. Claimant agreed and, when he was injured in one of the games, sought compensation under New Jersey’s Workmen’s Compensation Act. The act provided that volunteer firemen "who may be injured in line of duty” were entitled to compensation. The Appellate Division denied relief, holding that the critical words "in line of duty” created a different and more narrow classification than the traditional one, "out of and in the course of his employment”. The Supreme Court reversed and held, quoting McAnney v Galloway Twp, 120 NJL 311, 313; 199 A 369, 370 (Sup Ct, 1938):
" 'We do not apprehend that the Legislature, by the phrase "in the line of duty” contained in this supplement to the Compensation Act, intended to qualify the basic provision of the statute touching the relationship of the injury to the employment. Such a purpose is not to be presumed from the mere use of different language, especially when the phraseology has long been associated with this particular branch of the public service; it must be expressed in clear and definite terms admitting of no doubt of the intention. A fireman injured "in the line of duty” expressly assigned, or reasonably to be implied, suffers injury by accident arising out of and in the course of his employment.’ ” 42 NJ 299.
The Cuna Court continued:
"In Vogt v Borough of Belmar, 14 NJ 195, 206; 101 A2d 849 (1954), we pointed out that the relationship between a municipality and a volunteer fireman is not that of master and servant, and that the volunteer fireman cannot be viewed as an employee in the true sense.
"Thus, the term 'out of and in the course of his employment’ could not accurately be applied to volunteer firemen in the workmen’s compensation area and another term, 'in the line of duty,’ was substituted. There is no suggestion that the Legislature ever in tended to give it a meaning different from the traditional 'out of and in the course of his employment’ classification.” 42 NJ 299.
We agree with the above reasoning. It appears that use of the phrase "in the performance of duties” in § 161 was in recognition of the fact that volunteer fire fighters have not traditionally been considered "employees” and it would therefore be incongruous to refer to injuries arising out of and in the course of employment. We see no indication that the Legislature intended to require volunteer fire fighters to meet a different standard than that required by § 301.
We conclude that the WCAB did not err in applying the standard of whether decedent’s death arose out of and in the course of his employment as a volunteer fire fighter.
Finally, we hold that the WCAB’s findings of fact are supported by competent evidence in the record.
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M. J. Kelly, P.J.
This is a declaratory judgment action seeking a determination of the policy limits of an automobile fleet insurance policy which covered two automobiles illegally involved in a race. Plaintiff was a passenger who was thrown from one vehicle, suffering serious permanent injuries. Liability of the owners and drivers is conceded. Plaintiff appeals as of right from the circuit court’s order dismissing plaintiff’s action. We affirm.
The policy in question was an automobile fleet policy issued by defendant covering a number of vehicles owned and operated by the Rinehold family. As initially issued the policy included a schedule of covered vehicles with a specific premium listed for each covered vehicle. The two vehicles involved in the accident were added by endorsements which also added specific premiums for the vehicles and contained the following language:
"The insurance afforded for the added automobile is only with respect to such and so many of the following coverages, each as defined in the policy, as are indicated by an additional or return premium or the words 'no charge’ in the Premiums column. The limit of the company’s liability against each such coverage shall be as stated herein, subject to all the terms of the policy having reference thereto.”
The endorsements had a "per person” limit of $100,000. The policy contained the following language:
"Limits of Liability
"Regardless of the number of (1) insured under this policy, (2) persons or organizations who sustain bodily injury or property damage, (3) claims made or suits brought on account of bodily injury or property damages of (4) automobiles to which this policy applies, the company’s liability is limited as follows:
"Coverage C — The limit of bodily injury liability stated in the schedule as applicable to 'each person’ is the limit of the company’s liability for all damages, including damages for care and loss of services, because of bodily injury sustained by one person as the result of any one occurrence; but subject to the above provisions respecting 'each person’, the total liability of the company for all damages, including damages for care and loss of services, because of bodily injury sustained by two or more persons as the result of any one occurrence shall not exceed the limit of bodily injury liability stated in the schedule as applicable to 'each occurrence’.”
The contest below was whether the trial court erred in limiting the coverage available to plaintiff to the per person limit of $100,000, it being plaintiff’s position that the policy covered two vehicles, assessed two premiums, and therefore should have stacked the $100,000 policy limit for each vehicle for a total of $200,000.
The facts are not in dispute. Defendant has paid $100,000, its "per person limit”, in a previous lawsuit which expressly reserved the issue of whether a second $100,000 could be added or stacked in this context. Liability is not at issue. The two separate vehicles were driven by brothers who were each guilty of negligence, if not wilful and wanton misconduct, which was a proximate cause of plaintiff’s injuries. Defendant insurance company concedes that, if the single limit coverage can be pooled or stacked or added or doubled, it will pay the entire second $100,000 to plaintiff for a total of $200,000.
The issue of double recovery or stacking has been addressed by this Court in many contexts, however, no Michigan case has been brought to our attention which involved a single policy covering more than one vehicle where more than one of the covered vehicles were involved in a single accident or occurrence.
Plaintiff urges this Court to apply the reasoning of Loerzel v American Fidelity Fire Ins Co, 204 Misc 115; 120 NYS2d 159 (1952), aff'd 281 App Div 735; 118 NYS2d 180 (1952). In Loerzel two trucks insured under a fleet policy were standing on the highway when an automobile in which the plaintiff was a passenger collided with one of the trucks. The plaintiff sought judgment against the insured owner, which was clearly predicated on the negligence of each of the operators of the two trucks. Plaintiff obtained a $70,000 judgment against the trucking company. The policy provided limits of $50,000 for each person and $200,000 for each accident. The defendant insurance company paid the plaintiff $50,000 and plaintiff instituted an action for the remaining $20,000. The insurance policy contained both a separability clause and a limits of liability clause as follows:
"When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but a motor vehicle and a trailer or trailers attached thereto shall be held to be one automobile as respects limits of liability.
"Limits of Liability * * * The limit of bodily injury liability stated in the Declaration as applicable to 'each person’ is the limit of the company’s liability for all damages”.
The New York Court held that an ambiguity was created because the separability clause could be construed to clone the policy, making two policies of insurance with the liability limits applying separately and independently to each truck. On the other hand, the limits of liability clause established the upper limits to the insurance company’s liability, regardless of the number of vehicles involved in the occurrence which were insured by the policy. Construing the ambiguity against the insurance company the court held that each vehicle was insured for the policy limit as if each vehicle were covered by a separate policy.
Plaintiff contends that the reasoning of Loerzel should be applied to this case because of the factual similarity. However, the insurance contract in Loerzel is not the same as the insurance contract in the present case. In the instant case, there is no separability clause. There is no ambiguity. When the policy clearly indicates that the inclusion of more than one vehicle does not affect the limits of liability, the language does not create an ambiguity. Citizens Ins Co of America v Tunney, 91 Mich App 223, 228; 283 NW2d 700 (1979).
Plaintiff next argues that an ambiguity is created by the endorsements which add the two vehicles involved in the accident. We find no ambiguity created by the endorsements. The endorsements do nothing more than add an Oldsmobile and a Ford to the fleet automobile insurance policy and in doing so specifically incorporate the limits of liability provision contained in the body of the policy.
Plaintiff next argues that because a separate premium was charged for the addition of the two vehicles the insurance coverage for these vehicles is separate from the remainder of the fleet coverage. This takes plaintiff and defendant into an analysis of the underwriting predicate for the added premiums. There were no proofs establishing the underwriting predicate for the premiums. This Court has rejected this type of argument in a similar context. In Citizens Ins Co of America v Tunney, supra, we held that the payment of two separate premiums of equal amounts for uninsured motorist coverage on two different automobiles covered by a single insurance policy is not persuasive of an expectation of stacking the limits of that policy in the absence of proof of double payment warranting double coverage. There is a like hiatus here. The proofs do not support the argument.
Plaintiff next argues that this case should be treated differently from the normal "stacking” case because both vehicles were physically involved in the accident. In Greer v Associated Indemnity Corp, 371 F2d 29, 34 (CA 5, 1967), the Fifth Circuit Court of Appeals, applying Florida law, held that the insurer, which had issued an automobile liability policy insuring two vehicles, was not liable for an amount exceeding the stated limit of liability per automobile, where only one of the automobiles was involved in the accident giving rise to the claim. In reaching its decision, the Court distinguished Loerzel:
"As far as we are concerned, no help comes from Loerzel * * *. In an unrevealing opinion there is some indication that both trucks were physically involved in the accident and, in any event, apparently both trucks were present at the scene of the accident. If both were causally involved from an operational standpoint, coverage existed for both. If not, the decision is, in our judgment, unsound and for Florida, we decline to follow it.” 371 F2d 33 (citation and footnote omitted).
However, in both Greer and Loerzel, the insurance policies contained a separability clause. This is the source of the ambiguity. The policy in the instant case does not contain a separability clause or any similar language. Rather, it states that "[r]egardless of the number of * * * automobiles to which [the] policy applies, * * * [the] limit of bodily injury liability stated in the schedule as applicable to 'each person’ is the limit of the company’s liability for all damages * * * because of bodily injuries sustained by one person as the result of any one occurrence”. The limit of bodily injury liability stated in the schedule as applicable to ''each person” is $100,000. The event which resulted in injuries to the plaintiff was one occurrence. The plaintiff is one person. The fact that two automobiles were involved in the accident does not conjure up a separability clause. The stated limit of liability is exact and the policy clearly declares that the inclusion of more than one automobile does not affect that limit. Therefore, the policy limit of $100,000 must be enforced. Tunney, supra, p 229.
Plaintiff’s final contention is that, if the limits of liability clause is interpreted as only providing coverage up to the per person limit, the language is not enforceable in Michigan because the policy was issued under the statutory requirement of MCL 500.3101(1); MSA 24.13101(1). Plaintiff argues that, by limiting the liability to the per person limit of $100,000, the insurer failed to provide the full measure of insurance coverage required by MCL 500.3101(1); MSA 24.13101(1). This is clearly not tenable. The insurer does not claim that only one vehicle or one driver was covered by the policy. Rather, the insurer claims that both vehicles were covered by one policy which limits the liability to $100,000 for any one occurrence. There fore, the policy does not fail to meet the statutory requirement. The lower court correctly determined that the limits of liability clause limiting the defendant’s liability to $100,000 applies.
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M. J. Kelly, J.
Plaintiff appeals as of right from an order of the circuit court denying his petitions to reduce child support payments and to eliminate child support arrearages. The trial court also denied plaintiffs request for custody of the minor child but plaintiff does not appeal from that portion of the order. We affirm in part and reverse in part.
Plaintiff and defendant are the parents of Lucas James Joslin, born October 23, 1982. Although the parties have never married, paternity is not here disputed. The parties were living together at the time of their son’s birth and on May 4, 1983, plaintiff acknowledged paternity and stipulated to child support payments of $21 per week, resolving a paternity action filed by defendant following their separation. An order of child support was entered on May 13, 1983.
On December 20, 1984, plaintiff filed a complaint for custody of Lucas. He subsequently filed petitions to reduce child support and eliminate arrearages. Following a hearing conducted on March 8, 1985, the trial court awarded custody to the defendant and denied plaintiffs petitions, except that plaintiff was relieved of child support arrearages accumulated during any time Lucas was in the care of plaintiff for a period of seven days or more.
Plaintiff first argues on appeal that the trial court abused its discretion in denying his petition to reduce his child support obligation as set forth in the order of May 13, 1983. We do not agree. At the time plaintiffs petition was denied, he was self-employed as a woodcutter and earning $50 per week. Plaintiff is mentally and physically healthy and offered no reason as to why he is unable to obtain full-time or additional part-time employment. A trial court is not limited to a parent’s actual income in setting child support payments and may consider unexercised ability to earn. Wilkins v Wilkins, 149 Mich App 779, 792; 386 NW2d 677 (1986). We agree with the trial court’s observation that $21 per week is a minimal sum and is within plaintiffs ability to pay.
Moreover, since this is a petition for modification of a child support obligation, plaintiff must allege and prove a change in circumstances sufficient to justify the request. Wells v Wells, 144 Mich App 722, 733-734; 375 NW2d 800 (1985). Plaintiff in this case has failed to do either. At the time the original support order of $21 per week was entered, plaintiff had a bi-weekly income of only $140, which he also used to support two minor children from a previous marriage in his custody. Plaintiff’s income at the time of his modification petition was $50 per week but he no longer had any support obligation for the care of the two other minor children. Given our de novo review of this case, we are persuaded that the trial court did not abuse its discretion in refusing to reduce plaintiff’s child support obligation below $21 per week.
Plaintiff also argues that the trial court erred in refusing to eliminate arrearages accumulated during the time that plaintiff’s sole source of income was welfare. At the time Lucas was born, plaintiff had primary physical custody of his two other children and was receiving public assistance benefits of $140 every other week. He continued to receive these benefits until February 5, 1985, when the two children began living with their mother. At about the same time, plaintiff commenced his wood-cutting employment.
We are persuaded that plaintiffs child support arrearages should be reduced by the amount which accumulated during the period in which plaintiff had physical custody of his two other children and was dependent upon adc benefits as his sole source of support. In determining support obligations, a trial court must consider both parents’ abilities to pay as well as the needs of the minor child. We fail to see how plaintiff was able to financially support Lucas when he was responsible for the daily maintenance, care and support of his two other minor children. This is not a situation in which plaintiff father was unemployed and had considerable free time within which to earn $21 a week to contribute to the care of a minor child. Rather, plaintiff’s time was occupied with the care of two minor children who presumably would have required alternative child care at some cost to plaintiff had he acquired employment so as to pay $21 per week support.
To the extent that Lucas was not being provided adequate support or care, he was entitled to the same adc benefits which provided for the support and care of plaintiff’s other two children. We find it inappropriate that plaintiff would be required to reimburse the state for adc benefits paid out on behalf of Lucas but not for those paid out on behalf of his other two children solely because plaintiff did not have physical custody of Lucas. To the extent that the minor child Lucas is being provided adequate support and care by the custodial parent, there is no reasonable societal need to saddle an indigent father with an onerous arrearage obligation. Under the circumstances of this case, we conclude that plaintiff’s arrearages should be eliminated by the amount accumulated prior to February 5, 1985, the date on which plaintiffs two other children were transferred to the custody of their mother and the date on which adc benefits to plaintiff were terminated. We remand for entry of an order consistent with this opinion.
Our decision is not based on MCL 400.63; MSA 16.463, since the trial court did not require plaintiff to meet his support obligation out of the funds he received through adc. The trial court in this case adopted an approach consistent with Causley v LaFreniere, 78 Mich App 250; 259 NW2d 445 (1977), and Gonzalez v Gonzalez, 121 Mich App 289; 328 NW2d 365 (1982), and held that although plaintiff’s support obligation accumulated during the period he received adc benefits he would not be required to make up the arrearages until he obtained employment. In both Causley v LaFreniere, supra, and Gonzalez, supra, the noncustodial fathers were married and lived with their wives and children from those marriages. Both fathers’ support obligations were minimal and the courts noted that the fathers had ample time within which to earn the small sums of money needed to satisfy their support obligations for their other children without jeopardizing their unemployment or welfare benefits. In neither Causley nor Gonzalez did this Court hold that a father’s support obligation must continue without abatement even while he is on welfare. Instead, we looked to the circumstances of each case and evaluated the ability of the father to pay. We think that the facts in this case significantly differ from the facts presented in either Causley or Gonzalez because plaintiff, while unemployed, had physical custody of two minor children and was thereby limited in his ability to perform odd jobs in order to contribute $21 per week to the care of Lucas. We thus are not persuaded by defendants’ reliance upon those two cases.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
T. M. Burns, P.J., concurred. | [
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M. J. Kelly, P.J.
Plaintiff appeals as of right a decision of the trial court holding that plaintiff had failed to establish defendant’s paternity by a preponderance of the evidence. Plaintiffs child was born April 4, 1979, and the paternity hearing was conducted on April 15, 1982.
Prior to the hearing, plaintiff moved for the admission of the results of Human Leukocyte Antigen (HLA) blood tests indicating a 91% probability that defendant was the father of plaintiffs child. The trial court denied plaintiff's request under MCL 722.716(d); MSA 25.496(d), which, at the time of the hearing, prohibited the admission of all blood test results to show inclusion of a defendant in the class of potential fathers. See also Klein v Franks, 111 Mich App 316; 314 NW2d 602 (1981); Cardenas v Chavez, 103 Mich App 646; 303 NW2d 3 (1980), lv den 414 Mich 928 (1982).
Effective five days after the hearing, however, on April 20, 1982, MCL 722.716; MSA 25.496 was amended as follows:
"(4) The result of a blood or tissue typing test, and if a determination of exclusion of paternity cannot be made, a calculation of the probability of paternity made by a person the court determines is qualified as an examiner of blood or tissue types based on the result of a blood or tissue typing test shall be admissible in evidence in the trial of the case.”
Plaintiff argues on appeal that under the rules regarding retroactive application of amended statutes, she must be granted a new hearing in order to introduce evidence of the HLA blood test results. We disagree.
While we recognize that statutes pertaining to procedural matters are generally given retroactive effect, the rule of retroactivity does not require remand solely because a relevant procedural statute is amended after the conclusion of trial. The cases cited by plaintiff in support of remand can be distinguished on this ground. In Tulkku v Mackworth Rees Div of Avis Industries, Inc (On Remand), 101 Mich App 709; 301 NW2d 46 (1980), lv den 411 Mich 897 (1981), this Court held that a new products liability statute should apply to an action remanded for new trial by the Supreme Court on another, unrelated issue. In McAvoy v HB Sherman Co, 401 Mich 419; 258 NW2d 414 (1977), and in Sherberneau v Metropolitan Life Ins Co, 44 Mich App 339; 205 NW2d 213 (1973), retroactive application of a statute was an issue below. In Denham v Bedford, 407 Mich 517; 287 NW2d 168 (1980), and in Selk v Detroit Plastic Products, 120 Mich App 135; 328 NW2d 15 (1982), one party challenged the retroactive application of a statute which, it was argued, had an effect on some substantive right. The Courts in these cases found that the challenged statute affected only a remedial or procedural right and was therefore to be retroactively applied. None of the above cases stand for the proposition that post-trial amendments to procedural statutes automatically require remand for a new trial.
In this case, neither party challenged the validity of the statute at trial nor did the trial court erroneously construe or apply it. We thus hold that the trial court did not err in excluding evidence of the defendant’s blood type at trial and we decline to remand on the basis of the amended statute alone.
Because we find no need to remand for a new hearing, we decline to address the technically moot issue of whether defendant’s failure to answer plaintiffs interrogatories precludes him from testifying at trial. GCR 1963, 302.2(1). Defendant did not answer plaintiffs interrogatories but neither did he testify at trial.
Finally, we cannot say that the trial court’s findings leave us with the definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976); Precopio v Detroit, 415 Mich 457, 462; 330 NW2d 802 (1982). Defendant’s mother testified at the hearing that plaintiff had admitted on at least two occasions that she was uncertain of whether defendant or another man was the father of her son. Matters of witness credibility are best left for the trier of fact. GCR 1963, 517.1.
Affirmed.
R. I. Cooper, J., concurred. | [
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Per Curiam.
The people appeal as of right from the trial court’s grant of defendants’ motion to suppress evidence following a Talley hearing (People v Talley, 410 Mich 378, 390; 301 NW2d 809 [1981]) held by order of this Court.
Defendants were charged with breaking and entering a place of business with intent to commit larceny, MCL 750.110; MSA 28.305. Defendants joined in a motion to suppress evidence, which the trial judge granted. The people appealed, and this Court remanded for the Talley hearing. The evidence presented at that hearing is summarized as follows:
While on routine patrol on November 30, 1981, at about 3:40 a.m., Hamtramck Police Officers Stanley Sadzinski and Harry Chylinski observed several people running on a sidewalk in the same direction. The officers observed the runners enter a parked car. The officers did not see the runners carry anything or place anything in the car. Officer Sadzinski testified, "I thought it was a rather suspicious situation where I had several people running toward that parked car at that time in the morning”.
The officers pulled alongside the parked car and approached the car on foot. The officers stated that the occupants of the car, defendants, were not free to leave at that point. The officers "asked” each defendant to exit from the vehicle, one by one, and asked each defendant why he or she was in that neighborhood and running down the street. Defendant Bryant replied that he was looking for a friend’s house, but could not give an address. Defendant Keith White said he was with Mark Bryant. Defendant Fly also said he was looking for a friend’s house. Defendant Sherry White said they were looking for a party store around the corner. Officer Chylinski said there was no party store nearby and "we weren’t satisfied with the answers we were getting”.
The officers testified that two other officers arrived in another patrol car and detained the defendants while Officers Sadzinski and Chylinski checked several nearby residences to determine whether a crime had been committed. The officers did not find any evidence of a crime. Following that investigation, the officers received a radio report of a silent alarm activated at a jewelry store down the street from where defendants had been running. While some of the officers continued to detain defendants, the other officers investigated and found that someone had broken into the jewelry store. The investigating officers radioed the detaining officers and instructed them to arrest the defendants.
Officer Sadzinski testified that the jewelry store was 150 feet from defendants’ vehicle. Officer Chylinski said that the store was about 250 feet from the location where defendants were first observed running. Officer Sadzinski first testified that officers detained the defendants for six to seven minutes prior to the report of the jewelry store alarm. On cross-examination, however, he admitted it might have been "a good ten minutes” and that he "[couldn’t] say for sure”. Neither officer had any evidence or knowledge that a crime had been committed until the alarm report. Although there previously had been "B & E’s in this part of town”, it was not a high crime area.
Officer Sadzinski impounded defendants’ vehicle and conducted a standard police inventory of the interior. He found no evidence of a crime. Detective Daniel Budnick prepared an affidavit for a search warrant to examine the vehicle’s trunk. That document contained information related to him by Officers Sadzinski and Chylinski. A magistrate signed the warrant even though Budnick neglected to sign the affidavit. The police subsequently forced open the trunk and found merchandise allegedly stolen from the jewelry store.
The trial court found the search warrant invalid for the lack of the affiant’s signature. People v Goff, 401 Mich 412; 258 NW2d 57 (1977). The court also concluded that, even if the officers’ initial stop of the defendants was a reasonable action, the subsequent detention without evidence of criminal wrongdoing violated the Fourth Amendment to the United States Constitution. The trial court doubted that the detention had lasted only ten minutes. Finally, the court decided that the defendants’ arrests and the subsequent issuance of the search warrant were not supported by probable cause, even if the initial detention was a valid one.
This Court will reverse a trial court’s decision following a suppression hearing only if it is clearly erroneous. People v Walker, 130 Mich App 304; 343 NW2d 528 (1983); People v Mathews, 109 Mich App 129, 131; 311 NW2d 314 (1981). The people argue that the trial court clearly erred for three reasons: (1) the initial stop and detention of the defendants by the police officers was justifiable and lawful; (2) the subsequent arrest was supported by probable cause; and (3) even if the search warrant was invalid because the affidavit was not signed, the officers did lawfully search the trunk. We find the first issue dispositive.
From the moment the officers approached and detained defendants, and the latter were not free to leave, a "seizure” had occurred within the meaning of the Fourth Amendment. US Const, Am IV; Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). To justify such a brief on-the-scene intrusion, police officers must have a reasonable suspicion, based on objective facts, that the individual detained is involved in criminal activity. Brown v Texas, 443 US 47, 51; 99 S Ct 2637; 61 L Ed 2d 357 (1979).
A generalized suspicion or hunch is not enough to validate such police action. People v Burrell, 417 Mich 439, 457; 339 NW2d 403 (1983). Moreover, the intrusiveness of the police activity must be carefully limited to the circumstances that justified the original detention. Id. A police officer may ask questions and pat down the suspect for weapons, Terry, supra, but any further detention or search must be based on consent or probable cause. Dunaway v New York, 442 US 200, 212; 99 S Ct 2248; 60 L Ed 2d 824 (1979); United States v Brignoni-Ponce, 422 US 873, 880-882; 95 S Ct 2574; 45 L Ed 2d 607 (1975); People v Freeman, 413 Mich 492; 320 NW2d 878 (1982); People v Dixon, 85 Mich App 271; 271 NW2d 196 (1978), lv den 406 Mich 906 (1979).
In Dixon, supra, this Court found that a 20-minute detention of the defendant by police officers following a Terry stop was without probable cause and invalid. In Dixon, the officers stopped defendant after observing him running in the early morning hours in an area where there had recently been several early morning break-ins. The officers did not know if any crime had been committed prior to detaining Dixon or if Dixon had committed any crime. This Court considered a brief investigative stop to request Dixon’s identification justified, but the subsequent 20-minute detention in the squad car while the officers surveyed the surrounding area was beyond the scope of a Terry stop. Because the officers did not have probable cause to detain Dixon until they found that a crime had been committed, i.e., after 20 minutes had passed, Dixon’s detention after the brief Terry stop was illegal.
"Terry v Ohio permits only a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Detention for something more cannot be justified under Terry v Ohio, supra. Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972). Under Terry, the officer making the stop must be suspicious at the time the stop is made that criminal activity is afoot. Although the police in this case were somewhat suspicious when defendant was ñrst stopped, they had no further authority to detain defendant afterward while one of the officers went to check to see if criminal activity were afoot. The scope of the police power to detain must be related to the justification for the stop at its inception — not to an after-found justification.
"Here the police merely saw two men running in the early morning, a not uncommon sight in our times. Nor did the police proffer any facts to justify the intrusion upon defendant’s freedom. Nothing elicited from defendant or his companion would give any cause to increase police suspicions.” Dixon, p 277 (emphasis added).
In this case, the police arguably had less justification than the Dixon officers to conduct a Terry-type investigation. By the officers’ own testimony, the area involved here was not a high crime area. However, even if we assume that Officers Chylinski and Sadzinski’s initial stop of defendants was valid, their continuing detention of defendants was unlawful. Neither officer had knowledge of recent criminal activity in the area nor any objective information connecting the defendants with a crime. Nor do we regard the defendants’ responses to the officers’ questions as highly unusual. Rather, we find that the officers detained the defendants well beyond the scope of a Terry stop, based upon a generalized suspicion or hunch, and then searched for a crime to connect to defendants. Courts in this state have repeatedly disapproved of the practice of detaining a suspected criminal while looking for a crime. Burrell, supra; Dixon, supra.
Evidence seized as a result of an unlawful detention may not be used at trial. People v Bloyd, 416 Mich 538, 556; 331 NW2d 447 (1982). Accordingly, the trial judge correctly granted the motion to suppress in this case.
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Per Curiam.
Defendant was charged with second-degree murder in the death of an eight-month- old child named Buford Schrader. Following a bench trial, he was found guilty of involuntary manslaughter, MCL 750.321; MSA 28.553, but mentally ill. Defendant has a history of special education placement and a measured IQ of 65 with a mental age of 10 or 11 years. He was sentenced to from 5 to 15 years in prison and appeals as of right.
The primary issue presented in this appeal— whether a confession found to be coerced by, and made involuntarily to, a private citizen is admissible in evidence in a criminal trial — appears to be a matter of first impression in this state. Defendant claims that the trial judge erred by admitting into evidence defendant’s statements made to Thomas Shellito, a cousin of the deceased husband of Buford’s mother.
The record discloses that Buford and his mother were living with the defendant at the time of the child’s death on July 1, 1982. She advised Shellito on July 4, 1982, that she thought that the defendant was responsible for the child’s death. The evidence disclosed that death resulted from internal bleeding caused by a severe blow to the chest and abdomen area with an object of relatively large shape and smooth texture. The examining physician theorized the injury could have been caused by a human fist.
Based on the mother’s suspicion, Shellito entered defendant’s home the next day, locked the door and demanded that defendant tell him what happened to the child. When defendant denied knowing anything, Shellito said he "was going to knock the hell” out of defendant. He struck the defendant twice in the face with his fist. The scope and nature of the attack on the defendant was described by the trial judge in his findings, made at the conclusion of a hearing held to determine the admissibility of the statements made by the defendant to Shellito and to various police officials.
Defendant finally admitted to Shellito that he . hit the child, but could only remember "waking up, cradling the baby and crying and putting the baby in the crib”. Shellito then called the Lansing Police Department and had the defendant repeat the statement to the officer responding to his call. In reviewing the evidence presented, the trial judge characterized the statement as having been coerced by Shellito.
Even though the trial judge found the statements to have been coerced and made involuntarily by the defendant to Shellito, they were ruled admissible at trial "upon proper foundation, of course, of relevancy, but subject to criminal jury instruction 4.1,101 [sic] being given to the trier of facts, concerning the limitation on the use with which these statements are made”. The trial judge suppressed all statements made by the defendant to various police officials because "there was not the requisite voluntary intentional relinquishment of rights to remain silent”.
A written waiver of a jury trial was executed in open court, and the prosecutor and defense counsel stipulated to the court’s review, in lieu of testimony, of the preliminary examination testimony of Shellito and other witnesses. The prosecutor then made her opening statement and rested, having introduced all of her testimony and evidence through the stipulation. The defendant called only one witness, who testified regarding the defendant’s mental condition. At the conclusion of the arguments, the trial judge found the defendant guilty as set forth above.
In ruling that the statements made to Shellito were admissible, the trial judge noted that "the appellate law has always concerned itself with the police or state action” when an issue concerning the voluntariness of a confession was raised. The trial judge relied on the case of People v Omell, 15 Mich App 154; 166 NW2d 279 (1968), in admitting the statements into evidence. That case is distinguishable because the issue decided was whether an individual who was not a police officer was required to give Miranda warnings to a defendant before taking a statement in the nature of a confession. The limited scope of that decision was emphasized and relied on in the case of People v Leroy Morgan, 24 Mich App 660; 180 NW2d 842 (1970). The issue of force and coercion by an individual who was not a police officer was not involved in those cases, and thus they have no controlling weight in the case at bar.
It is clear that confessions made involuntarily to the police may never be used against a criminal defendant, not only because the police broke the law, but more importantly because an involuntary confession is always of questionable trustworthiness. People v Reed, 393 Mich 342, 355; 224 NW2d 867 (1975). Because of its untrustworthy evidentiary value, an involuntary confession may not be used either as direct evidence or for impeachment purposes. Reed, supra, p 356.
We are persuaded that it should make no difference whether an involuntary statement is coerced by a police officer or a private citizen. This approach has been followed in a number of other jurisdictions. State v Kelly, 61 NJ 283; 294 A2d 41 (1972); State v Hess, 9 Ariz App 29; 449 P2d 46 (1969); Schaumberg v State, 83 Nev 372; 432 P2d 500 (1967); People v Frank, 52 Misc. 2d 266; 275 NYS2d 570 (1966); State v Ely, 237 or 329; 390 P2d 348 (1964); People v Berve, 51 Cal 2d 286, 293; 332 P2d 97, 101 (1958).
The same conclusion may be drawn from our Supreme Court’s decision in People v Rich, 133 Mich 14; 94 NW 375 (1903). In that case, the defendant made certain inculpatory statements after having been threatened by the father of a rape victim. At the time of the Rich trial, a jury was allowed to decide the issue of the voluntariness of an admission or confession. The Supreme Court approved an instruction to the jury that a coerced confession made under duress or restraint was an exception to the rule that an admission was strong evidence of guilt. Michigan has adopted a rule requiring the judge to decide questions of voluntariness outside the presence of the jury. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). We therefore conclude that a confession found to be coerced and involuntarily made is not admissible in evidence in a criminal trial, even if the state is not involved in the coercion.
The prosecutor argues that any error in admitting defendant’s coerced confession was harmless. The harmless error doctrine may not be applied, however, when a coerced confession was admitted in evidence against a criminal defendant. Lynumn v Illinois, 372 US 528, 537; 83 S Ct 917; 9 L Ed 2d 922 (1963). In addition to this fact, we note that the trial judge placed considerable emphasis on the confession in finding the defendant guilty but mentally ill.
Without the confession to Shellito, the only evidence in the record to connect the defendant to the child was that he was present on several occasions when the child was crying. This evidence would be insufficient to establish beyond a reasonable doubt that the defendant was responsible for the death of the child.
The prosecutor also urges this Court to find that defendant’s subsequent statements and confessions to police officials were admissible evidence. This issue is not properly before this Court on appeal. Having failed to bring a cross-appeal, the people must obtain leave of this Court in order to secure appellate review of the claim._
Defendant also claims that there was insufficient evidence before the trial judge to support the finding of involuntary manslaughter. We disagree. Medical testimony concerning the cause of death, coupled with circumstantial evidence and the defendant’s admissions, was sufficient to convince the trial judge beyond a reasonable doubt that the defendant was guilty of involuntary manslaughter. We choose not to comment on the nature and extent of the evidence that may be presented by the prosecutor at a new trial, except to note that the trial "by stipulation” may not have presented all of the relevant evidence to the trial judge.
Defendant’s claim concerning his sentence has been rendered moot by our reversal of his conviction.
Reversed and remanded for a new trial.
People v Harris, 71 Mich App 82, 246 NW2d 406 (1976), involved a statement obtained from the defendants by physical coercion and threats made by a "citizens’ group”. Defendant, Joseph Harris, testified at trial and the coerced confession was admitted into evidence "for the limited purpose of testing the credibility of the witness”. The trial judge stated he would not consider the statement "as substantive proof of the defendants’ guilt”. Defendant Switzer did not testify during his trial.
"The defendant sat down on the couch and put his hands on his knees and said he wouldn’t talk. At which point, a brutal, from the testimony of Mr. Shellito, attack upon this defendant took place. That this attack was a striking with hands and feet, on the shoulders, and the head, more than 20 times. At which point, the defendant then said, okay, I will tell you. I was downstairs and the baby upstairs. At which point, Mr. Shellito apparently again was very upset. Mr. Shellito indicates that he was very loud and boisterous, that he was arguing and slapping the defendant. He indicates that the defendant was afraid to say anything.”
"* ’ ’ a statement somewhat damaging has been said by the defendant to another individual. That this court finds that the statement to have been coersive [sic], and this court finds it to have been threatening, and this court finds that the testimony is very clear that the statement would not have been made, had it not been for the physical attacks upon the defendant.”
"Now, it is significant to this court, in reviewing Mr. Shellito’s testimony of the defendant’s statement, in viewing the pathologist statement, of the nature of the injury, that they were consistent with one another. That is, that the pathologist’s statements as to the causation of injuries is consistent with a, an adult male fist, hands, or arm violently coming down upon the small abdomen of an eight or nine month old child, sufficient to rupture the kidney and cause the laceration previously alluded to.
“Therefore, the court would have to find from the testimony in this matter that it does not have a reasonable doubt but then that this Buford Earl Schrader died on or about the 30th of June, of 1982, and that his death was caused by an act of the defendant.” | [
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Per Curiam.
Plaintiff-appellant, Steven Duran, filed an application for leave to appeal to this Court from a decision and order of the Workers’ Compensation Appeal Board (WCAB) which vacated the decision and order of the hearing referee requiring defendants, Memorial Hospital and Mayo Clinic, to accept as payment in full 70% of the amounts owing for medical services rendered plaintiff for his industrial injury, with the remaining 30% to be retained by counsel as part of the legal fee. After denial of leave, plaintiff filed an application for leave to appeal to the Supreme Court, which Court remanded to this Court for consideration as on leave granted.
The case was originally heard by a hearing referee on stipulated facts. According to those facts, in January, 1977, 24-year-old construction worker Steven Duran was injured when he was pinned between a truck and a set of roof trusses while working at a construction site for defendant, Sollitt Construction Company. He was admitted to defendant Memorial Hospital for treatment from March 7 to March 19, 1977, and also travelled to an Ann Arbor hospital for intensive physical therapy in September and October of 1977. Disappointed with his lack of response to the treatment he had received, plaintiff sought treatment at the Mayo Clinic in Rochester, Minnesota, where he was admitted on March 28 and remained until April 14, 1978, and was again admitted in January, 1979. In July, 1979, the physician who had treated him earlier at Memorial diagnosed a herniated intervertebral disc, which was surgically removed in October, 1979.
Sollitt’s insurer, CNA Insurance Company, paid plaintiff workers’ compensation benefits for the period from January 21, 1977, through January 2, 1978. Benefits were terminated at that time on the basis of a medical report that plaintiff was able to return to work. Plaintiff challenged the termination and, in October, 1979, plaintiff, Sollitt and CNA entered into an agreement whereby CNA agreed to pay, among other items, medical expenses incurred by plaintiff. Memorial was owed $1,319.22 and Mayo, $3,019.40.
Pursuant to an agreement between plaintiff and his attorney, in November, 1979, Memorial and Mayo were sent checks for 70% of the amounts owed to each, with plaintiff’s attorney retaining 30% of the amount owed to each as his attorney fee. Memorial refused its check and demanded full payment. Mayo deposited its check and sent plaintiff a bill for the outstanding 30%.
Plaintiff then began administrative proceedings seeking an order approving the 70%-30% fee division. After a hearing, the hearing referee approved the fee arrangement and ordered that plaintiff’s counsel be paid 30% of the amounts reimbursed to plaintiff for the payments to Memorial and Mayo for their services and that this fee was to be considered as though paid by Memorial and Mayo. The WCAB vacated this order and plaintiff appeals.
First, plaintiff contends it was an error of law for the WCAB to conclude that it did not have the authority to require Mayo and Memorial to pay a pro-rata share of plaintiff’s attorney fees. MCL 418.315(1); MSA 17.237(315X1) provides:
"The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed. After 10 days from the inception of medical care as herein provided, the employee may treat with a physician of his or her own choice by giving to the employer the name of the physician and his or her intention to treat with the physician. The employer or the employer’s carrier may file a petition objecting to the named physician selected by the employee and setting forth reasons for the objection. If the employer or carrier can show cause why the employee should not continue treatment with the named physician of the employee’s choice, after notice to all parties and a prompt hearing by a hearing referee, the hearing referee may order that the employee discontinue treatment' with the named physician or pay for the treatment received from the physician from the date the order is mailed. The employer shall also supply to the injured employee dental service, crutches, artificial limbs, eyes, teeth, eyeglasses, hearing apparatus, and other appliances necessary to cure, so far as reasonably possible, and relieve from the effects of the injury. If the employer fails, neglects, or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by the employee, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the hearing referee. The hearing referee may prorate attorney fees at the contingent fee rate paid by the employee.”
Plaintiff argues that the last sentence of the above statute entitles him to hold defendant hospitals responsible for a portion of his attorney fees. He further contends, citing Aetna Casualty & Surety Co v Starkey, a case dealing with no-fault insurance, that, under equitable principles, the hospitals should be required to pay a portion of the attorney fees since they received reimbursement for their services as a result of plaintiff’s attorney’s efforts.
In Boyce v Grand Rapids Asphalt Paving Co, this Court held that under the provisions of the above statute a medical care provider cannot be forced to accept only 70% of its bill, with the remaining 30% paid to the employee’s attorney for legal services, stating:
"We summarily reject plaintiffs argument that the defendant hospital should be responsible for the payment of plaintiffs counsel’s fees. The controlling principle of law is well stated by the authors of 7 Am Jur 2d, Attorneys at Law, § 238, pp 277-278:
" 'The creation of the relation of attorney and client by contract, express or implied, is essential to the right of an attorney to recover compensation for services. In general, there can be no recovery from one who did not employ or authorize employment of the attorney, however valuable the result of the attorney’s services may have been.’ (Footnotes omitted.)”
We believe that this Court’s conclusion in Boyce, supra, directly applies to the within case and find that the WCAB was correct in ruling that the hearing referee lacked statutory authority to order the hospitals to pay plaintiffs attorney’s fees in such a manner.
In Aetna, supra, this Court held that under the no-fault act, medical providers could be charged with a pro-rated portion of attorney fees. The attorney in that case was defending the claimant against an action brought by his insurer under a no-fault insurance policy. However, the within case concerns the interpretation of a specific statutory clause which, from its context, seems to refer to payment by the employer or his insurer and not by the medical provider.
Plaintiffs second argument on appeal is that if Mayo and Memorial are not held liable, Sollitt and CNA should be, as it was their refusal to pay medical expenses which led to the litigation. However, plaintiff did not raise this issue with the referee or on appeal to the WCAB. Therefore, review by this Court is precluded. In any event, the settlement agreement between plaintiff and Sollitt and CNA, and also the agreement between plaintiff and CNA to redeem liability, would seem to release Sollitt and CNA from further liability.
Third, plaintiff contends it was improper for the WCAB to reverse the hearing referee’s order as to Mayo when Mayo did not appeal the order. As the WCAB properly found that there was no authority for the hearing referee’s order, we believe that reversal was proper. We affirm the WCAB decision vacating the order of the hearing referee.
Affirmed.
Memorial Hospital was represented by counsel at the hearing. No representative for Mayo Clinic has appeared in the case.
116 Mich App 640; 323 NW2d 325 (1982), lv den 417 Mich 929 (1983).
117 Mich App 546, 549; 324 NW2d 28 (1982), lv den 417 Mich 1023 (1983).
Benavides v Edward C Levy Co, 117 Mich App 722; 324 NW2d 149 (1982), lv den 417 Mich 952 (1983); Medacco v Campbell, Wyant & Cannon Foundry Co, 48 Mich App 217, 229; 210 NW2d 360 (1973). | [
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Per Curiam.
Plaintiff appeals from the trial court’s order of summary judgment in favor of defendants Martel and the Ann Arbor School District in plaintiff’s action against Martel for libel and intentional infliction of emotional distress.
Plaintiff is a teacher at a high school in Ann Arbor and had defendant Martel’s son, Jonathan, in her "Honors” English class in the spring semester of 1980. Plaintiff announced to the class that each student’s final grade would be determined by a mathematical formula. Under that formula, Jonathan should have received a final grade of A — , but he was given a B+. Jonathan complained to plaintiff, but she claimed that, notwithstanding the formula, determination of a student’s final grade was within her discretion.
Jonathan told his father about plaintiff’s refusal to change his grade. Defendant Dr. Martel contacted the school principal. Pursuant to the first step of the school system’s "fair treatment policy”, a conference was held with plaintiff, Dr. and Mrs. Martel, Jonathan, and the principal. Plaintiff claims that the entire conference consisted of defendant’s berating her. Following this conference, defendant, pursuant to the fair treatment policy grievance procedure, wrote a letter to the princi pal expressing his dissatisfaction with plaintiffs performance as a teacher and with her treatment of his son, Jonathan. In his letter, defendant Martel accused plaintiff of treating Jonathan "most unfairly” and of displaying "remarkable insensitivity and behavior that was most unprofessional” and "inconsistent with good teaching practice”.
Plaintiff thereafter filed a lawsuit, alleging that the statements in defendant’s letter were libelous and intended to inflict upon her emotional distress. The school district’s motion to intervene as a party defendant was granted. Both defendants subsequently moved for summary judgment pursuant to GCR 1963, 117.2(1) and (3). After taking the motions under advisement, the trial court granted the defendants summary judgment in a thoughtful written opinion. We affirm.
The trial court held that defendant Martel’s statements were cloaked with a qualified privilege and, to be actionable, plaintiff had to show that the statements were made with malice. The court reasoned that whether or not plaintiff had made a showing of malice sufficient to withstand summary judgment, Martel’s statements, as a matter of law, were expressions of opinion protected by the First Amendment of the United States Constitution. Since we find that, under Michigan law, the pleadings fail to reveal a genuine issue of material fact as to whether defendant Martel made the statements with malice, we find it unnecessary to reach the constitutional issue.
A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Nuyen v Slater, 372 Mich 654, 662, fn; 127 NW2d 369 (1964); Ledsinger v Burmeister, 114 Mich App 12, 21; 318 NW2d 558 (1982). Slander (libel) per se exists where the words spoken (written) are false and malicious and are injurious to a person in his or her profession or employment. Croton v Gillis, 104 Mich App 104, 108-109; 304 NW2d 820 (1981).
The trial court found that defendant Martel’s statements were protected from action by a qualified privilege. We agree. In general, a qualified privilege extends to all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty, and embraces cases where the duty is not a legal one but is of a moral or social character of imperfect obligation. Timmis v Bennett, 352 Mich 355, 366; 89 NW2d 748 (1958). The initial determination of whether a privilege exists is one of law for the court. Lawrence v Fox, 357 Mich 134, 139-140; 97 NW2d 719 (1959).
The Michigan Supreme Court has held that a citizen who complains to the appropriate official about the fitness of a public school teacher enjoys a qualified privilege. Wieman v Mabee, 45 Mich 484, 486; 8 NW 71 (1881). Defendant Martel had both an interest and a right to see that his child was being competently taught. His letter and the complained-of statements reflect defendant’s legiti mate concern with his child’s education and fall within the scope of Michigan’s qualified privilege.
Having decided that a qualified privilege protected defendant’s statements, the next question to address is whether a material issue of fact existed as to whether defendant made the statement with actual malice. Parks v Johnson, 84 Mich App 162, 169; 269 NW2d 514 (1978), lv den 405 Mich 820 (1979). A general allegation of "malice” is insufficient to establish the required showing. Zachrich v Booth Newspapers, 119 Mich App 72, 75; 325 NW2d 630 (1982). Actual malice in a libel action is shown where the writing is made with knowledge that it is false or with a reckless disregard as to whether it is false or not. New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964); Peisner v Detroit Free Press, Inc, 104 Mich App 59, 64; 304 NW2d 814 (1981).
In her complaint, plaintiff alleges that because defendant Martel knew or should have known that plaintiff was a competent teacher, he knew or should have known that his statements regarding plaintiff were false. We disagree. In the first place, defendant Martel’s assertion that plaintiff acted unprofessionally and insensitively on particular occasions is not necessarily inconsistent with any alleged awareness on Martel’s part of plaintiff’s general reputation. Furthermore, defendant Martel’s opinion that plaintiff displayed unprofessional and insensitive behavior was based wholly upon facts conceded by plaintiff to be accurate and true.
A virtually identical case was presented to the Arizona court in Sewell v Brookbank, 119 Ariz 422; 581 P2d 267 (Ariz App, 1978). In that case, various parents submitted a list of grievances about a high school chemistry teacher to the school principal and pursued the grievances with the superintendent and the school board. In affirming the trial court’s grant of summary judgment in favor of the parents on the ground that the plaintiff teacher had failed to present an issue of fact on the existence of actual malice, the court observed:
"The fact that Mr. Sewell denied the charges and the fact that the principal told appellees he thought Mr. Sewell was a good teacher does not mean that the appellees, by pursuing the matter, acted with knowledge of the falsity of their charges. They knew he denied the allegations, but because of the nature of the complaints, they did not know they were 'false’ and his mere denial does not mean such allegations were false. Nor does the evidence show a reckless disregard of the truth, i.e., a high degree of awareness of probable falsity. * * * If we were to hold otherwise then once the teacher denies any allegation of incompetency even though the adequacy of his answers are still in question, the matter is ended. We cannot condone such a result which would allow school officials to shield the incompetent teacher and thus defeat the legitimate interest of the parents in their children and the school system.” 119 Ariz 426. (Citations omitted.)
Similarly, in the instant case, plaintiff has failed to allege any facts which create a genuine issue of material fact as to whether defendant Martel made the allegedly defamatory statements with actual malice.
The trial court also awarded summary judgment to defendants on plaintiff’s claim for damages for the intentional infliction of emotional distress. We agree with the trial court’s conclusion that, as a matter of law, defendant Martel’s use of the school district’s complaint procedure cannot be regarded as conduct " 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386, 391; 239 NW2d 380 (1976), citing 1 Restatement Torts, 2d, § 46, comment d, p 73.
The order of summary judgment for defendants is affirmed.
Nuyen v Slater, supra, pp 661-662, and O’Connor v Sill, 60 Mich 175, 181-184; 27 NW 13 (1886), could be cited as support for the proposition that defendant’s statements were not defamatory in the first place, for purposes of this opinion we will presume the statements, by impugning plaintiffs professionalism as a teacher, were defamatory, but we do not purport to take a position on this issue.
The "Fair Treatment Policy” was adopted to provide due process rights to all persons involved in the Ann Arbor School District. Defendant Martel not only had a general right to express his concern about his child’s education, but he had a corresponding right to process his grievance through the fair treatment procedure. That the alleged defamatory statements were made solely in the context of the established procedure only reinforces our conclusion that the statements were qualifiedly privileged.
As the trial court noted, the Second Restatement of Torts takes the position that "[a] simple expression of opinion based on disclosed or assumed nondefamatory facts is not in itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is.” Restatement Torts, 2d, § 566, comment (c). This position was adopted by the Sixth Circuit in Orr v Argus Press Co, 586 F2d 1108, 1114-1115 (CA 6, 1978), cert den 440 US 960; 99 S Ct 1502; 59 L Ed 2d 773 (1979). | [
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V. J. Brennan, J.
Plaintiff appeals as of right from a March 4, 1983, Wayne Circuit Court order which dismissed all of plaintiff’s claims with prejudice and granted summary judgment to defendant pursuant to GCR 1963, 117.2(3).
In her complaint, filed on or about August 18, 1976, plaintiff alleged that she was injured in an accident on October 23, 1973, when an automobile driven by defendant collided with plaintiff’s vehicle. Plaintiff claimed that the accident resulted in a serious impairment of a body function.
In her deposition, plaintiff testified that immediately after the accident she lost consciousness three times, including once at the hospital. As a result of the accident, plaintiff claimed that she received a four-inch cut on her forehead which did not require suturing. Plaintiff also alleged that both of her arms were bruised and that she received bruises and cuts on her legs. These cuts did not require sutures.
Plaintiff claimed that she suffered from dizziness and a severe headache immediately after the accident, as well as pain in the lower back. Furthermore, she stated that she had occasional tingling in her legs, though she did not know if it had anything to do with her back pains.
According to plaintiff’s testimony, on the night of the accident plaintiff received emergency medical treatment at Beyer Hospital in Ypsilanti, Michigan, where she was examined, x-rayed and released.
The day after the accident, plaintiffs sister took her to St. Joseph’s Hospital in Ann Arbor, Michigan, where she was released the same day. Plaintiff also contacted her personal physician, Gerald Stair, M.D., who examined her on October 26, 1973. Plaintiff continued treatment with Dr. Stair and she remained in bed at home for a month pursuant to his request.
In Dr. Stair’s January 28, 1975, report, he wrote that plaintiff claimed that she still had complaints of headaches, dizziness, and lower back pains.
Dr. Stair opined in his June 7, 1974, report that the accident "resulted in injuries to the low back and the face and was a contributing factor in patient’s earlier complaints”. However, he "would anticipate that her symptoms should have cleared by now”.
Plaintiff also received outpatient physical therapy treatments at Beyer Hospital and she was hospitalized for a period of three weeks at St. Joseph’s Hospital for a neurological evaluation, x-rays, etc.
Plaintiff received chiropractic treatment from V. P. Laursen, D.C., for her lower back pains for a period of over 1-1/2 years.
Plaintiff was also examined at the request of defendant’s insurance company by Dr. Jarlath Quinn, M.D. Dr. Quinn concluded that plaintiff was not disabled and was capable of resuming her regular work duties.
On or about August 18, 1976, plaintiff filed the instant suit. Plaintiffs claims were mediated and the parties both accepted a recommended settlement of $1,500, but plaintiff subsequently changed her mind and had her response changed to a rejection.
On March 4, 1983, defendant brought a motion for summary judgment pursuant to GCR 1963, 117.2(3) claiming there existed no genuine issue as to any material fact and that defendant was, therefore, entitled to judgment as a matter of law. After determining that plaintiff had not established that she suffered any serious impairment of a body function, the trial judge granted the defendant’s motion and dismissed all the claims of plaintiff.
The issue for our consideration is whether the trial court erred in granting defendant’s motion for summary judgment after concluding as a matter of law that plaintiff had not suffered a serious impairment of a body function.
In Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), reh den 417 Mich 1104 (1983), the Supreme Court modified the application of MCL 500.3135; MSA 24.13135 to allow a trial court, in certain instances, to rule on the threshold issue of a serious impairment of a body function as a matter of law, rather than giving it to the trier of fact.
Up until Cassidy, it was generally held that the serious impairment of a body function threshold question was a question of fact, within the exclusive province of the trier of fact, except in those infrequent situations where no reasonable trier of fact could differ and the injuries were either so severe or so minimal that the court was justified in ruling on the issue as a matter of law. Abraham v Jackson, 102 Mich App 567, 570; 302 NW2d 235 (1980), lv den, reconsideration den, 413 Mich 905 (1982); Brooks v Reed, 93 Mich App 166; 286 NW2d 81 (1979), lv den 411 Mich 862 (1981).
The Court in Cassidy concluded that permitting all cases to go to the trier of fact, except those where no reasonable trier of fact could differ, would not significantly attain the legislative objective of reducing automobile accident litigation. Thus, the Court declared:
"Therefore, we conclude that the meaning of 'serious impairment of a body function’ is a matter to be determined by statutory construction. We hold that when there is no factual dispute regarding the nature and extent of a plaintiffs injuries, the question of serious impairment of body function shall be decided as a matter of law by the court. Likewise, if there is a factual dispute as to the nature and extent of a plaintiffs injuries, but the dispute is not material to the determination whether plaintiff has suffered a serious impairment of body function, the court shall rule as a matter of law whether the threshold requirement of MCL 500.3135; MSA 24.13135 has been met.” 415 Mich 502.
In reaching its conclusion as to whether the threshold requirement of a serious impairment to a body function was primarily a fact question or one requiring judicial definition as a matter of law, the Cassidy Court considered several factors. First, the term is not one that is commonly used, for which the trier of fact would have a clear sense of the intended meaning. Second, if the interpretation of the phrase was left to the trier of fact, a trial would in most instances be required to determine if the threshold had been met. This would not mesh with the overall policy of reducing automobile accident litigation. Cassidy, supra, p 501.
In light of the decision of the Cassidy Court and subsequent decisions of this Court, we find that the trial court was correct in granting defendant’s motion for summary judgment. Although a dispute exists between the parties as to the various injuries suffered by plaintiff, the record is clear that, considering the injuries in a light most favorable to plaintiff, the injuries do not reach the threshold required under MCL 500.3135; MSA 24.13135. Accordingly, the factual dispute in this case is not a dispute material to the determination of whether plaintiff has suffered a serious impairment of a body function. Therefore, the trial court was free to rule as a matter of law whether the threshold requirements of MCL 500.3135; MSA 24.13135 had been met.
Affirmed.
Allen, P.J., concurred. | [
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Per Curiam.
This is a consolidated appeal as of right by several insurance companies and individuals pursuant to GCR 1963, 518.2. The appeals arose out of several orders declaring respective duties to defendant Dr. Larry Kompus, the insured, by the insurance companies involved.
During the period from 1973 to 1979, Kompus allegedly engaged in homosexual practices with several of his patients under the guise of therapy. Kompus was convicted of third-degree criminal sexual conduct in connection with these activities. Lawsuits alleging assault, malpractice and other claims were filed against Kompus by five former patients: defendants Mallett, Hoag, Ennes, Stroud, and Winter.
The following insurance policies were in effect at the time of the alleged occurrences:
(1) Frankenmuth Mutual Insurance Company — a homeowner’s policy effective February 9, 1975, to February 9, 1977, and a Compak (commercial package) policy effective July 1, 1975, to July 14, 1976;
(2) Aetna Life & Casualty Company — a homeowner’s policy effective February 10, 1977, to February 9, 1979, and a personal excess indemnity policy effective December 26, 1974, to December 26, 1978;
(3) West American Insurance Company — a special multi-peril policy (SMP) with a comprehensive general liability endorsement effective July 1, 1976, to July 1, 1979;
(4) Vigilant Insurance Company — a medical malpractice policy effective March 15, 1975, to May 1, 1975, and July 7, 1976, to May 1,' 1980;
(5) Medical Protective Company — a medical malpractice policy effective July 15, 1971, to July 15, 1976;
(6) Ohio Casualty Insurance Company — umbrella coverage under a personal excess indemnity policy effective December 26, 1978, to December 26, 1981.
On December 9, 1980, Frankenmuth filed a complaint for declaratory relief, requesting a declaration of rights under the above policies. Ohio Casualty and West American filed a cross-complaint for declaratory relief.
On July 9, 1981, defendant Farm Bureau filed a motion for summary judgment, claiming that, based upon the effective termination date of its policy and the professional liability exclusion contained therein, it was not obligated to provide coverage to Kompus. On August 11, 1981, Vigilant filed a motion for summary judgment with respect to Farm Bureau, Frankenmuth, West American and Aetna, requesting a ruling that, as to those allegations of the complaint against Kompus not involving malpractice, the latter four named insurers had a duty to defend. On August 25, 1981, defendant Aetna filed a motion for summary judgment, contending that its homeowner and personal excess indemnity insurance provisions did not provide coverage for the incidents upon which the complaints were based.
Since the complaints against Kompus were all before the same circuit court judge, the Frankenmuth request for declaratory judgment was also assigned to that judge on August 25, 1981. On February 1, 1982, he issued his opinion on the motions for summary judgment and the complaint for declaratory judgment. Essentially, the court held that:
(1) Because insurance coverage under its homeowner policy was arguable, Frankenmuth had a duty to defend Kompus (with regard to incidents occurring during the effective dates of the policy) on Counts I and III of Mallett’s complaint, Counts I and II of Hoag’s complaint, Counts I, II, III, V, VI and VII of Ennes’s complaint, and Counts VII through XX of Winter’s complaint.
(2) Under its Compak policy, Frankenmuth had a duty to defend regarding incidents occurring in Kompus’s medical office during the effective dates of the policy as alleged in Winter’s complaint.
(3) Farm Bureau had no duty to defend under its SMP policy.
(4) Under its general liability endorsement policy, Farm Bureau had a duty to defend against Counts I and II of Hoag’s complaint.
(5) Aetna’s "business pursuits” clause in both its homeowner’s and personal excess liability policies excluded all incidents from coverage, and Aetna had no duty to defend.
(6) West American and Ohio Casualty had no duty to defend against the malpractice counts because of the "professional service” exclusions in their policies. Both insurers had a duty to defend against other counts.
(7) The malpractice insurers — Medical Protective, Vigilant and Employers Commercial Union— had a duty to defend against malpractice claims arising from acts which occurred within the effective dates of coverage.
(8) Public policy would not be advanced by excusing the insurers from the above duties.
Ohio Casualty, Vigilant, Frankenmuth, Commercial Union and Farm Bureau moved for rehearing. Several of the other parties also joined in the motions. On March 25, 1982, the trial judge reaffirmed and clarified his earlier ruling that Aetna had no duty to defend against the Kompus complaints by virtue of the "business pursuits” exclusion. Reconsidering his earlier ruling, however, the trial judge ruled that, under a similar "business pursuits” clause, Frankenmuth had no duty to defend under its homeowner policy. It had a duty to defend only against the Winter complaint and only under its Compak policy.
On May 28, 1982, the trial judge entered an order granting Frankenmuth partial summary judgment on its complaint and denying Vigilant’s and Medical Protective’s motions for summary judgment against Frankenmuth. On June 11, 1982, an order denying Vigilant’s motion for rehearing was entered.
On June 30, 1982, Aetna moved for accelerated and/or summary judgment against cross-plaintiif Vigilant. On August 10, 1982, the court granted the motion on the ground that Aetna owed no duty to defend against the Stroud complaint. By order of August 16, 1982, the court granted Vigilant’s motion for summary judgment in part, directing the duties of defense (as set forth above) of the various carriers with regard to the respective Kompus complaints.
The following claims of appeal were filed:
(a) #65090 — By Vigilant, from the orders of May 28, 1982, and June 11, 1982.
(b) #65269 — By Mallett, Hoag and Ennes from the order of May 28, 1982.
(c) #66471 — By Vigilant, from the order of August 10, 1982.
(d) #66509 — By Frankenmuth, a cross-appeal, from the order of August 16, 1982.
(e) #69239 — By Medical Protective on January 26, 1983, an application for delayed appeal from the order of May 28, 1982. This Court granted the delayed appeal on March 8, 1983.
(f) #66818 — By West American, from the order of August 16, 1982.
On December 1, 1982, the trial judge issued his opinion on Farm Bureau’s earlier motion for rehearing and granted Farm Bureau’s motion for summary judgment. A stipulation to dismiss Farm Bureau’s appeal (#66703, from the order of August 16, 1982) was then presented and an order dismissing that appeal was entered on February 17, 1983. The remaining above cases were consolidated on appeal by this Court’s orders of October 14, 1982, and March 8, 1983.
On appeal, this Court must determine whether Frankenmuth, Aetna and West American owe a duty to defend their insured (Kompus) in the lawsuits filed by defendant patients. We conclude that they do not.
I
Appellants Vigilant, Hoag, Mallett, Ennes and Medical Protective argue that the trial court erred in finding that Frankenmuth and Aetna had no duty to defend under their homeowner policies issued to Kompus. The trial court held that coverage was excluded under the "business pursuits” exclusions contained in both policies.
In State Mutual Cyclone Ins Co v Abbott, 52 Mich App 103; 216 NW2d 606 (1974), this Court adopted the two-pronged test for business pursuits set forth in Fadden v Cambridge Mutual Fire Ins Co, 51 Misc. 2d 858, 862; 274 NYS2d 235, 241 (1966):
" 'To constitute a business pursuit, there must be two elements: first, continuity, and secondly, the profit motive; as to the first, there must be a customary engagement or a stated occupation; and, as to the latter, there must be shown to be such activity as a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transactions or engagements.’ ” 52 Mich App 108.
This test has been applied to find that acts were not within the business pursuits of the insured where a business owner, while shoveling snow off the roof of his building, threw a broken shovel handle unintentionally onto power lines, causing damage to nearby property, Michigan Mutual Liability Co v Ferguson, 15 Mich App 298; 166 NW2d 525 (1968), lv den 381 Mich 813 (1969); where the insured set off a firecracker in his place of employment, injuring another, Morrill v Gallagher, 370 Mich 578; 122 NW2d 687 (1963); and where the insured razed a barn on his property and sold the wood to another who was injured while the two men were loading the wood onto a truck, Randolph v Ackerson, 108 Mich App 746; 310 NW2d 865 (1981), lv den 413 Mich 896 (1982). In the first of these two cases, the incidents were not considered business pursuits because they were not even arguably committed out of a profit motive; in the latter case, while the activity was profit motivated, it was not continuous.
The business pursuit test was met, however, in Abbott, supra, where a blacksmith injured a horse while shoeing it, and in Kermans v Pendleton, 62 Mich App 576; 233 NW2d 658 (1975), where a bar owner shot a customer. In Riverside Ins Co v Kolonich, 122 Mich App 51; 329 NW2d 528 (1982), this Court acknowledged the viability of the two-pronged test but held that a question of fact was raised as to whether the ceramics business on the insured’s property, where the injured party slipped and fell, was a hobby or a profit-making activity.
To the extent the individual patients’ complaints in the instant case allege malpractice or concern acts undertaken by Kompus under the auspices of rendering his usual professional services, they fall within the business pursuits exclusion. Engaging in sexual acts with a patient supports a malpractice claim by the patient. See Cotton v Kambly, 101 Mich App 537, 541-542; 300 NW2d 627 (1980), lv den 411 Mich 1033 (1981). Overprescription of drugs may also support such a claim. A subsequent insurance claim based on such acts by a physician arises out of the "rendering of or failure to render professional services”. Vigilant Ins Co v Kambly, 114 Mich App 683, 686; 319 NW2d 382 (1982). Where the professional services are continuous and a profit motive is involved, the claim also arises out of the business pursuits of the insured.
We believe that, under the two-pronged test for business pursuits, the acts complained of in the individual patients’ complaints did arise out of business pursuits of Kompus. The trial court' found in its opinion of February 1, 1982, that "[without exception, the acts complained of occurred during a doctor/patient relationship”. While the complaints contained counts of ordinary negligence and intentional torts as well as malpractice, we do not find this distinction to be necessarily controlling since it is the acts themselves we must look to rather than the alternative labels applied to them by the injured parties. Here, Kompus’s relationship with each of the individual patients clearly began as one of doctor/patient. According to the complaints, Kompus continued to represent to his patients that his actions were part of their therapy and treatment and for their benefit, or that the doctor/patient relationship was a continuing one. Kompus was able to commit the complained-of acts apparently only because of the trust reposed in him as doctor by his patients. While Kompus apparently did not charge Mallett for "therapy” during the time period within which some of the acts occurred, payments for treatment were merely postponed until Mallett became re-employed and the matter of payments was then to be resolved "in other ways”. No references to payment are made in Hoag’s or Ennes’s complaints. However, it is clear that the relationships began as ones involving profit, with the parties expecting Kompus to be paid for his services. We are unwilling to say that the profit requirement of the business pursuits test may be satisfied only if the individual complained-of acts were themselves specifically performed for profit on an act-by-act basis. The test is not so narrow. We interpret it instead to require that the acts be performed as part of the business or service normally performed by the insured for profit, i.e., the business pursuit of the insured; in the instant case, psychiatric treatment or therapy.
While agreeing with the trial court that the business pursuits exclusion could be applied to preclude coverage of virtually all of the counts raised by the individual patients, we are not necessarily convinced that Count VIII of the Ennes complaint, which alleged defamation, falls within the business pursuits exclusion. We do find, however, and it is so alleged in the complaint, that the defamatory statements were made intentionally by Kompus, and were intended to attribute a lack of credibility to Ennes, and are therefore not accidents. Consequently, they are not occurrences as required for coverage under the policy, and Frank enmuth and Aetna have no duty to defend since coverage is not available.
Likewise, while it was generally an appropriate exclusion, even before considering the business pursuits exclusion, coverage should initially have been denied Kompus under the basic terms of the Frankenmuth and Aetna homeowner policies. Those policies provide generally, and in identical terms, as follows:
"This company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.”
The word "occurrence” is defined in both policies as "an accident”. The term "accident” is not defined in the policies, but has been defined by the Michigan Supreme Court:
" 'An "accident”, within the meaning of policies of accident insurance, may be anything that begins to be, that happens, or that is a result which is not anticipated and is unforeseen and unexpected by the person injured or affected thereby — that is, takes place without the insured’s foresight or expectation and without design or intentional causation on his part. In other words, an accident is an undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.’ ” Guerdon Industries, Inc v Fidelity & Casualty Co of New York, 371 Mich 12, 18-19; 123 NW2d 143 (1963), quoting 10 Couch on Insurance (2d ed), § 41:6, p 27.
The issue of "accident” was considered by the trial court, although apparently in relation to a notice requirement contained in the policies rather than whether the coverage was available initially. The trial court could not say "whether Mallett’s injuries were 'accidental’ vel non”. The trial court also discussed the intent behind Kompus’s acts insofar as it related to the "expected or intended” acts exclusion, an exclusion which used language similar but with opposite meaning to that used by the Supreme Court in Guerdon. In order for an intentional acts exclusion to apply, the trial court ruled, there had to be both an intentional act and an intent to injure. See Morrill, supra, p 588; Vermont Mutual Ins Co v Dalzell, 52 Mich App 686, 692; 218 NW2d 52 (1974). The court found that, since no allegations of intent to injure were contained in any pleadings, the fact that the acts committed by Kompus were intentional (which they were) was insufficient to trigger the exclusion.
We hold that, finding Kompus’s actions to have been intentional, the trial court, in ruling on Frankenmuth’s complaint for declaratory judgment and Aetna’s motion for summary judgment, should have found coverage precluded under the basic "occurrence” requirement of the policy. Regardless of the label affixed to each claim raised by the individual patients, it is clear that the acts performed by Kompus upon which those claims were based were intentional and the injuries at least foreseeable. The acts and injuries alleged by the complaining patients did not occur "without the insured’s foresight or expectation and without design or intentional causation on his part”. Guerdon, supra, p 18.
We therefore arrive at the same result as that reached by the trial court, although our finding that Frankenmuth and Aetna have no duty to defend on the Hoag, Mallett, and Ennes complaints is based on the basic policy language granting coverage for accidents only, while the trial court relied on the business pursuit exclusion. The summary judgments entered in favor of Frankenmuth and Aetna on May 28, 1982, and June 11, 1982, are therefore affirmed.
II
In a similar vein, appellant West American argues that the trial court incorrectly ruled that it had a duty under its special multi-peril policy (SMP) to defend all counts except those specifically alleging malpractice. West American had argued below that coverage was precluded both under its "occurrence” requirement and its "professional service” exclusion. Those portions of the policy provide:
" 'Occurrence’ means an accident involving continuous or repeated exposure to conditions, which result in bodily injury or property damage, neither expected nor intended from the standpoint of the insured.
"Professional Liability Exclusion Endorsement— Form C.
" 'It is agreed that with respect to any operation described above or designated in the policy, the subject of this endorsement, the insurance does not apply to bodily injury or property damage due to the rendering of or failure to render any professional services.’ ”
Originally, West American filed a cross-complaint for declaratory relief. Aetna filed a motion for summary judgment on the cross-complaint. In its opinion of February 1, 1982, the court held:
"Given the above definitions of occurrence and accident, the court is unable to say that no factual development could possibly [sic] individual defendant rights to recover under the policies. Accordingly, the court finds that neither West American nor Ohio Casualty has a duty to defend against any malpractice counts delineated above in Part I under their respective 'professional service’ exclusions. The court also finds that both insurers do have a duty to defend against those incidents which allegedly occurred during the effective coverage dates in the following counts: Mallet complaint, Counts I and II; Hoag complaint, Counts I and II; Ennes complaint, Counts I-III and V-VII; Winter complaint, Counts VH-XX. Since the Winter complaint alleges homosexual activities at the psychiatrist’s office, West American also has a duty to defend under its SMP policy.”
As in the case of Frankenmuth and Aetna, the appropriate vehicle for finding no duty to defend by West American was the intentional nature of Kompus’s acts. It cannot be argued that Kompus, a psychiatrist who knew the nature and extent of his patients’ psycho-sexual problems, did not expect the injuries suffered by the individual defendants in this action. Since the acts were not occurrences within the meaning of West American’s policy, coverage was precluded even as to the claims not labeled malpractice since the acts themselves were intentional and the injuries expected from the standpoint of the insured.
This result is further supported by Armstrong v Security Ins Group, 292 Ala 27; 288 So 2d 134 (1973), where the Supreme Court of Alabama determined the effect of an "intentional injury” exclusion clause. The insured owned a sandwich shop. A fight broke out in the shop. Armstrong was involved in the fight. The insured intervened and pulled a gun, pointing it at Armstrong. The gun fired and injured Armstrong. A pertinent section of the policy provided that the insurer would pay damages caused by an "occurrence”. "Occurrence” was defined similarly to the West American definition. The trial court held that the shooting was not an accident. The Alabama Supreme Court noted that Alabama recognizes that an accident occurs when the act is voluntary if the results are unanticipated or unexpected. However, it also recognized that where acts are intentional and the injury is the natural result of the act, the result is not caused by accident even though it was unforeseen and unintended.
Since Kompus’s acts were clearly intentional and the resulting injuries, especially given these particular victims, were natural results, West American had no duty to defend Kompus against any of the complaints because none involved "occurrences”.
Again, however, the trial court could also have relied upon the professional services exclusion contained in the policy, since all of the acts (except arguably the defamation claim made by Winter) arose out of the original doctor/patient relationship which existed between Kompus and the patients. The trial court, therefore, erred in ruling that West American had a duty to defend on Counts I and II of the Mallett complaint, Counts I and II of the Hoag complaint, Counts I through III and V through VII of the Ennes complaint, and Counts VII through XX of the Winter complaint.
III
Finally, Frankenmuth appeals the order of summary judgment entered on August 16, 1982, affirming the trial court’s ruling that Frankenmuth had a duty to defend under its Compak policy against the Winter complaint as to those acts which occurred at Kompus’s office. Frankenmuth’s policy provided:
"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured and conducted at or from the insured premises and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.
"Professional Liability Exclusion Form C.
"It is agreed that with respect to any operation described above or designated in the policy as subject to this endorsement, the insurance does not apply to bodily injury or property damage due to the rendering of or failure to render any professional service.”
The "professional service” exclusion makes it clear that the policy is not designed to cover malpractice claims. To the extent that the acts involving Winter and Kompus at Kompus’s office constituted malpractice, therefore, coverage is excluded under that provision. The acts complained of clearly arose out of and during the doctor/patient relationship.
Preceding the application of the "professional service” exclusion, however, is the determination that, pursuant to the previously quoted definition of accident, Frankenmuth had no duty to defend because the acts involved were not "occurrences”. The acts perpetrated by Kompus against and with Winter were intentional acts and the resulting injuries cannot be called unexpected as far as Kompus is concerned.
Coverage under the SMP policy provided Kompus by Frankenmuth was therefore not available as to those acts alleged in the Winter complaint which took place in Kompus’s office.
Conclusion
The trial court’s orders are affirmed in part, reversed in part. The orders of May 28, 1982, and June 11, 1982, insofar as they hold that Aetna, Frankenmuth and West American have no duty to defend against certain counts, are affirmed. To the extent that the orders, as well as the order of August 16, 1982, require Frankenmuth, Aetna and West American to defend certain counts raised by the individual patients, they are reversed.
Affirmed in part, reversed in part, and remanded for entry of appropriate orders. Costs to prevailing parties.
We note also the applicability of the "professional services” exclusion contained in the Frankenmuth and Aetna policies, which excluded coverage for "bodily injury or property damage arising out of the rendering of or failing to render professional services.” The trial court, in its initial opinion of February 8, 1982, found this exclusion applicable only to those malpractice claims labeled as such.
An intent to injure is required only where demanded by insurance policy language, however. Morrill v Gallagher, 370 Mich 578; 122 NW2d 687 (1963); Vermont Mutual Ins Co v Dalzell, 52 Mich App 686; 218 NW2d 52 (1974). In the instant case, while injurious intent was required to deny coverage under the "expected or intended” acts exclusion, the trial court did not need to reach or consider the applicability of that exclusion. Threshold coverage under the policies at issue was available only for "accidents” or "occurrences”. It was sufficient, therefore, to show only that the acts themselves were intentional in order to remove the incidents from coverage as "accidents”; whether the insured also had an intent to injure was irrelevant. | [
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Per Curiam.
Petitioner Charles Gilliard began working as an assistant payments worker for the Department of Social Services on October 21, 1973. On September 25, 1975, the DSS sent petitioner the following telegram:
"This is to inform you that your employment with the Michigan Department of Social Services is terminated for reasons of conduct unbecoming a state employee as evidence indicates that you are involved in a welfare fraud. This dismissal action is effective at the close of business hours on September 24, 1975.
"John Smith, Director
"Office of Administration
"Michigan Department of Social Services”
The DSS subsequently summarized the alleged activities which led to petitioner’s dismissal in the following manner:
"1. Mr. Gilliard approached ADC client Dianne Davison in February, 1975, and requested her complicity in cashing an ADC warrant to be issued by Mr. Gilliard in another person’s name. Mr. Gilliard indicated that proceeds would then be split between Mr. Gilliard and Ms. Davison.
"2. Mr. Gilliard failed to close client Linda Jackson’s case at her request in December, 1974, and, instead, forwarded warrants in her name to another address where they were received by client Delores Johnson who cashed the warrants and split the proceeds with Mr. Gilliard. These warrants were issued bi-weekly from January 9, 1975, until April 8, 1975.”
On April 6, 1976, petitioner was indicted on 11 charges of conspiracy to commit and the commission of welfare fraud. On September 28, 1976, a jury acquitted him on all charges. The next day, petitioner sought reinstatement to his former position, but the DSS refused his request. The DSS also refused to give him a hearing on the charges leading to his discharge on the ground that he had not filed a grievance within ten days in accordance with the requirements of the civil service rules.
Petitioner thereupon filed a petition for review in the circuit court, which denied relief. He fared no better on appeal to this Court. However, the Michigan Supreme Court, in Michigan State Employees Ass’n v Civil Service Comm, 406 Mich 313; 279 NW2d 530 (1979), held that petitioner was entitled to a hearing because the limitation period for filing a grievance under the civil service rules had been tolled from the time of his discharge until his acquittal on the criminal charges.
On January 2, 3, and 4, 1980, petitioner finally received the hearing, for which he had fought so long, before an arbitrator. On March 19, 1980, the arbitrator ruled that petitioner was entitled to reinstatement with full back pay. However, the arbitrator did not award interest on the back pay and ruled that the award would be reduced by any outside earnings, unemployment benefits, and governmental assistance.
Both petitioner and DSS sought to appeal the arbitrator’s award to the Civil Service Commission which denied leave to appeal to both parties , "because the commission defers to arbitration and because neither unfair or irregular arbitration procedures nor a result repugnant to commission rules has been shown”.
DSS and petitioner then appealed the commission’s decision upholding the arbitration award to the circuit court, which affirmed. Petitioners Gilliard and the Michigan State Employees Association appeal as of right the arbitrator’s refusal to award interest and the arbitrator’s deduction of unemployment compensation and ADC benefits form the back pay award. Respondent DSS appeals the arbitrator’s finding that DSS failed to show that Gilliard was discharged for cause. Respondent Civil Service Commission contends that petitioners’ and DSS’s claims should be dismissed and that the commission’s decision to uphold the arbitration award should be affirmed.
We initially observe that the DSS may lack standing to pursue the instant appeal. The DSS is essentially a subordinate of the Civil Service Commission. Since the commission’s decision amounts to a decision by the State of Michigan, a subordinate agency would ordinarily lack standing to challenge such a decision absent express statutory authority. We have not located any such express authority. Despite our reservations about the DSS’s capacity to appeal, we shall address the merits of its claims of error.
The DSS initially contends that the decision of the Civil Service Commission denying review of the arbitrator’s decision was not supported by competent, material, and substantial evidence on the whole record and must therefore be reversed. Although the government’s case against petitioner was strong, there were serious questions about the credibility of crucial government witnesses. Resolution of this case turned upon the trier of facts’ assessment of the credibility of the witnesses, and the arbitrator apparently chose to believe petitioner’s version of the facts. We find that the commission’s decision to uphold the arbitrator’s award was supported by competent, material, and substantial evidence.
DSS also contends that the arbitrator applied an incorrect standard of proof — "beyond a reasonable doubt” — against it, rather than a "preponderance of the evidence” standard. Although the arbitrator stated that he was applying a "clear and convincing evidence” standard, he relied upon several cases which embraced the "reasonable doubt” standard. We need not determine, however, which standard was employed by the arbitrator since the commission is free to approve the use of a higher standard of proof in a case involving allegations of criminal conduct (or, for that matter, in any case). The commission is free to adopt any grievance or appellate procedure it finds appropriate as long as it does so consistently with the requirements of due process since it has full and absolute power over civil service employees. Const 1963, art 11, §5.
Finally, the DSS contends that the arbitrator committed error by excluding evidence of a polygraph examination taken by one of their witnesses. We disagree. Subject to one carefully drawn exception (which is inapplicable to the case at bar), Michigan courts have consistently held that the results of polygraph examinations are inadmissible. See, e.g., People v Liddell, 63 Mich App 491; 234 NW2d 669 (1975).
We now turn to petitioner’s allegations of error. First of all, petitioner contends that the arbitrator erred by failing to award interest on the back pay award from the date of his wrongful discharge. We agree. MCL 438.7; MSA 19.4 provides:
"In all actions founded on contracts express or implied, whenever in the execution thereof any amount in money shall be liquidated or ascertained in favor of either party, by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court, or by any other mode of assessment according to law, it shall be lawful, unless such verdict, report, award, or assessment shall be set aside, to allow and receive interest upon such amount so ascertained or liquidated, until payment thereof, or until judgment shall be thereupon rendered; and in making up and recording such judgment, the interest on such amount shall be added thereto, and included in the judgment.”
In Wilson v Doehler-Jarvis Div of National Lead Co, 358 Mich 510; 100 NW2d 226 (1960), the Supreme Court held that this statute permits the circuit court to award interest on a workers’ compensation award, finding that the right to such an award arises out of a statutorily imposed contract between the worker and employer. Interest was awarded from the date the claim should have been paid.
We find the Wilson rationale applicable to the case at bar. The award of back pay was based upon a contract between petitioner and the DSS. In the words of the Wilson Court:
"Who benefited from the delay in payment here? Who, if anyone, suffered any loss? In the instant case the disputed claim for compensation has been in the throes of litigation for over 5 years. In the meantime the defendant-appellant has had the possession and use of funds that it now appears rightfully belonged all along to the plaintiff, while the plaintiff (theoretically if not actually) had to raise money elsewhere (and presumably pay interest on it) to meet the daily necessities of life. In a real sense, then, the employee and his dependents have been obliged to help subsidize the employer in the long, expensive fight for possession of the money thus wrongfully withheld.” 358 Mich 516-517.
Similarly, petitioner should not be forced to bear the burden of subsidizing his employer during the pendency of this litigation. Accordingly, we remand this case to the circuit court with directions to modify the award by adding interest from the date of petitioner’s discharge.
Petitioner also contends that unemployment compensation and ADC benefits were erroneously deducted from the arbitrator’s award. We cannot agree. Commission rules clearly mandate such deductions. Citing no relevant authority in support of his position, petitioner apparently urges this Court to strike down these rules. We decline to do so. Such a double recovery would be manifestly unfair in the context of a recovery for breach of contract, and particularly so in the present case because both the principal recovery and the collateral benefits would be paid by the same party, the state.
Affirmed in part, reversed in part, and remanded for modification of the award in accordance with this opinion. Petitioner may tax costs.
In Groehn v Corporation & Securities Comm, 350 Mich 250; 86 NW2d 291 (1957), the Supreme Court addressed the merits of a departmental employer’s appeal of a commission decision, but did not mention the standing issue.
See People v Barbara, 400 Mich 352; 255 NW2d 171 (1977).
We note that the Wilson case was decided against a background of considerably lower interest and inflation rates than those prevailing in the present period. Hence, an award of interest is even more necessary to compensate petitioner for the actual damages he has sustained.
The relevant rules provide:
"9-2609 Awards. All awards of back pay and benefits, even when not expressly stated, shall be subject to the rules and regulations of the commission, and shall be subject to:
"9-2609a Deduction of earnings in other employment or self-employment.
"9-2609b Deduction of benefits received from employer contributory income protection insurance.
"9-2609c Deduction of benefits received under the following government assistance programs:
"(1) Worker’s Compensation
"(2) Unemployment Compensation
"(3) Social Security
"(4) Social Welfare”. | [
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Shepherd, P.J.
Frederick Totman appeals as of right from an Oakland County Circuit Court order dismissing his appeal from the Michigan Employment Security Commission for failure to file a brief. Both below and on appeal, appellant has proceeded in propria persona.
Appellant was employed by the School District of Royal Oak from December 13, 1971, to September 11, 1981. On September 14, 1981, he filed for unemployment benefits, indicating that his layoff was for lack of work. MESC disqualified him, finding that his unemployment was due to a labor dispute within the meaning of § 29(8)(a) of the Michigan Employment Security Act, MCL 421.29(8)(a); MSA 17.531(8)(a). Following a hearing, the disqualification was affirmed by the referee on December 10, 1982. In an opinion dated April 29, 1983, the board of review affirmed, with one member dissenting.
On May 19, 1983, appellant filed a timely claim of appeal with the Oakland County Circuit Court. Appellee School District of Royal Oak filed an ex parte motion for an order to show cause why appellant’s appeal should not be dismissed pursuant to GCR 1963, 701.13(b) for failure to file a brief as required by GCR 1963, 701.9(a). Appellant answered appellee’s motion, arguing that the appeal should not be dismissed because, under GCR 1963, 706.2(a), a timely filing of a claim of appéal constitutes the taking of an appeal and because GCR 1963, 706.2(d) states that appeals from the board of review are heard by the circuit court on the certified record and the certified record contained a dissenting opinion which appellant adopted as his brief in the circuit court. The trial judge apparently disagreed and on September 7, 1983, entered an order dismissing appellant’s appeal for failure to timely file his brief.
Appellant appealed as of right to this Court. His brief on appeal contained two issues. The first was whether the circuit court erred in dismissing his appeal. The second was whether the decision of the board of review was supported by substantial evidence on the record. Appellees filed a motion to strike the second question in appellant’s brief since the circuit court had not reviewed the merits of the board’s decision. This Court agreed, granting appellees’ motion to strike on January 3, 1984. The only issue on appeal is whether the circuit court abused its discretion by dismissing appellant’s appeal for failure to file a brief.
Section 38 of the Michigan Employemnt Security Act, MCL 421.38; MSA 17.540, provides for circuit court review of appeal board decisions and that such review be "by any method permissible under the rules and practices of the circuit courts of this state”. MCL 421.38(1); MSA 17.540(1). GCR 1963, 706, which governs appeals under the Michigan Employment Security Act, provides in part:
"(d) The appeal is heard by the circuit court on the certified record. Briefs and oral argument are governed by sub-rules 701.9-701.11.” GCR 1963, 706.2(d).
Under this section, GCR 1963, 701.9 governs the filing and service of briefs. GCR 1963, 701.9(a) provides that:
"(a) Within 20 days after the trial court clerk notifies the parties that the record has been sent to the circuit court, the appellant shall file a brief in the circuit court and serve it on the appellee. Appellant shall notify the trial court of the filing. The appellee may file and serve a reply brief within 20 days after the appellant’s brief is served on him. Briefs must comply with GCR 1963, 813 and 814.”
In the instant case, appellant did not file a brief, as required by GCR 1963, 701.9(a). He argued below in his answer to the motion to show cause, and now argues on appeal, that his appeal should not be dismissed for two reasons. First, because GCR 1963, 701.9(a) is merely advisory and the filing of a brief was discretionary. Second, since GCR 1963, 706 states that the appeal is heard by the circuit court on the certified record and the certified record contained a dissenting opinion, this dissent should serve as appellant’s brief on appeal in the circuit court. Appellees argue that, since compliance with the court rules is mandatory, the circuit court did not abuse its discretion by dismissing the appeal.
We disagree with appellant’s assertion that the requirement of briefs is discretionary. The clear language of GCR 1963, 701.9(a) states that "appellant shall file a brief in the circuit court and serve it on the appellee”. However, the decision whether to dismiss an appeal for failure to comply with this requirement is left to the circuit court’s discretion. See Kassin v Arc-Mation, Inc, 94 Mich App 520, 523-524; 288 NW2d 413 (1979), app dis, 411 Mich 1065 (1981). We agree with appellant that the dismissal of his appeal was an abuse of discretion.
On numerous occasions appellate courts have held that failure to file an appellate brief is a waiver of the right to participate in the appeal and justifies dismissal. See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959); Higgins v Higgins, 351 Mich 214, 215; 88 NW2d 292 (1958); Anchor Bay Concerned Citizens v Anchor Bay Bd of Ed, 55 Mich App 428, 430-431; 223 NW2d 3 (1974). Appellate briefs are required so that the reviewing court does not have to search the record to discover whether error has been committed and ascertain the authority to support the alleged error. Mitcham, supra; Couple-Gear Freight Wheel Co v Lake Shore & MS R Co, 196 Mich 429, 433-434; 163 NW 25 (1917). In the instant case, the certified record contained a statement of facts which could sufficiently inform the court of the underlying facts and issues on appeal. The dissenting opinion relied on by the appellant contains statutory and case citations as well as a legal argument why the decision of the referee should be reversed. The circuit court would not be re quired to search the record for the pertinent facts or authority in support of appellant’s position.
We believe that appellant adequately showed cause why his appeal should not be dismissed and complied with the requirement of GCR 1963, 701.9(a) by adopting the dissenting opinion as his brief. The circuit court’s order dismissing his appeal was a harsh penalty in light of the fact that appellant was proceeding in propria persona. We agree with the appellees that a person acting in propria persona should be held to the same standards as members of the bar. However, in the instant case, appellant’s adoption of the dissenting opinion served the purpose behind the requirement of an appellate brief. Had appellant retyped the dissenting opinion and labelled it "BRIEF” it would have fully complied with the requirements of the rule. His failure to do so constitutes an error on his part resulting in a defect in the proceedings but the general court rules wisely contemplated that litigants and lawyers might make such errors without suffering the cataclysmic consequence of having a case dismissed without a hearing on the merits:
"These rules are to be construed to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceedings which does not affect the substantial rights of the parties.” GCR 1963, 13.
See Rockwell v Vandenbosch, 21 Mich App 583; 183 NW2d 900 (1970).
This idea of allowing minor errors to have no adverse consequences finds its counterpart in the concept of harmless error as applied to trial judges. Not every mistake made by a trial court requires reversal, especially where the error is slight and the prejudice is minimal. There is no right to a perfect trial — only a fair trial is mandated. See People v Herrera, 12 Mich App 67; 162 NW2d 330 (1968). Indiana & Michigan Electric Co v Miller, 19 Mich App 16; 172 NW2d 223 (1969), lv den 383 Mich 781 (1970). Litigants and lawyers are entitled to similar treatment. Although the trial judge was correct in stating that appellant had erred, we, in the exercise of our appellate function, find that the punishment was out of proportion to the crime.
Reversed and remanded for a hearing on the merits at which the dissenting opinion of the board of review shall be treated as appellant’s brief. We express no opinion on the merits of appellant’s case and we do not retain jurisdiction.
No costs, a public question being involved. | [
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Per Curiam.
Plaintiffs appeal as of right from a jury verdict of no cause of action and the July 12, 1982, court order reflecting that verdict.
Plaintiff Bertha Doran, defendant’s former mother-in-law, brought defendant’s children home after her son’s weekend visitation with them. Ms. Doran pulled into defendant’s driveway, alighted from her car, fell, and broke her ankle. At the close of plaintiffs’ proofs in this negligence action, defendant moved for a directed verdict, arguing in part that the Dorans failed to present any evidence that Bertha Doran was an invitee rather than a licensee. The trial court denied that part of defendant’s motion stating,_
"[I]t’s the court’s opinion that she was certainly an invitee. She had an invitation to deliver the children to her [defendant’s] home, and to drop them off, and to go in and visit and return to her car and leave, and at any time that the father exercised visitation.”
At the close of defendant’s proofs, plaintiffs moved for a directed verdict and requested a finding and instruction that, as a matter of law, Bertha Doran was an invitee on defendant’s property at the time of the accident. Defendant renewed her motion for a directed verdict. Following a review of Leveque v Leveque, 41 Mich App 127; 199 NW2d 675 (1972), the trial court stated:
"I think there are questions of fact that ought to be resolved as to whether she was an invitee, or a licensee. That is something the jury can mull over and decide for themselves.”
The court went on to state that Bertha Doran’s service to defendant in returning the children to defendant’s home was mutually beneficial to the parties; Ms. Doran did not have to referee an altercation between her son and his ex-wife, and defendant was spared a trip and a possible altercation with her ex-husband.
Plaintiffs’ sole issue on appeal is that the trial court erred by failing to find and instruct the jury that Bertha Doran was an invitee as a matter of law. We agree.
The duty owed by a landowner depends upon the status of the injured party at the time of the injury. Leep v McComber, 118 Mich App 653, 657-658; 325 NW2d 531 (1982). A licensee is one who is on the premises of another because of some personal unshared benefit and is merely tolerated on the premises by the owner. Danaher v Partridge Creek Country Club, 116 Mich App 305, 313; 323 NW2d 376 (1982); Socha v Passino, 105 Mich App 445, 448; 306 NW2d 316 (1981). A property owner’s duty to a licensee extends only (1) to liability for injuries caused by conditions the owner knows of and realizes involve an unreasonable risk of harm, (2) where the owner fails to exercise reasonable care to make the conditions safe or warn the licensee of the conditions or risks, and (3) where the licensee does not know or have reason to know of the risk. Preston v Sleziak, 383 Mich 442, 453; 175 NW2d 759 (1970); 2 Restatement Torts, 2d, § 342, p 210.
An invitee is one who is on the owner’s premises for a purpose mutually beneficial to both parties. Danaher, supra, p 312. An owner or occupier of land owes an invitee the duty to exercise ordinary and prudent care to render the premises reasonably safe. Preston v Sleziak, supra, p 447; Danaher, supra. Thus, a landowner’s duty to an invitee is broader than that owed to a licensee.
In Leveque, supra, plaintiff was the defendants’ sister-in-law. At defendants’ request, she went to their home to pick up the defendants’ children. While plaintiff was carrying defendants’ infant child down the front stairs, plaintiff fell due to a defective porch step. The trial court granted defendants’ motion for summary judgment after holding that plaintiff was a licensee as a matter of law. This Court reversed the summary judgment, finding that plaintiff was an invitee as a matter of law. In doing so, this Court expanded the status of invitee to include a personal friend or family member, normally licensees, in instances where the predominant nature of the visit is not for social purposes, but rather for predominately beneficial purposes to the landowner. The Leveque Court did say that in most instances a finding of licensee/invitee status would be a question of fact. However, in that case, where the evidence showed that plaintiff’s visit was not for a social purpose, the Court determined that plaintiff was an invitee as a matter of law.
In this case, the evidence did not show that Bertha Doran’s sole purpose was to render services beneficial to defendant. She often visited socially with defendant on such occasions. Nevertheless, as the trial court found, Ms. Doran’s presence on defendant’s premises was mutually beneficial and primarily a service to defendant, a service defendant impliedly invited as it saved her a 24-mile round trip and a possible altercation with her ex-husband. Therefore, we find as a matter of law that Bertha Doran was an invitee. As this status affected the standard of care owed Ms. Doran, we find that the trial court caused reversible error by failing to find and instruct the jury that Ms. Doran was an invitee.
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Wahls, J.
This case presents the question of whether a municipality may lawfully prohibit its youths from engaging in the now popular pastime of playing electronic video games. We find the matter to be somewhat novel and of no small constitutional importance. The factual background is comparatively straightforward.
The City of Warren, a home-rule city, MCL 117.1 et seq.; MSA 5.2071 et seq., enacted an ordinance which under the general licensing rubric prohibited a youth under the age of 17 from any public association or involvement with electronic video games without his parent or guardian being present:
"Prohibitions and restrictions. — (1) It shall be unlawful for any licensee, employee, agent or servant of the licensee to permit a minor prior to his (her) 17th birthday to enter, loiter, remain, congregate, or play any mechanical amusement in an amusement machine center unless accompanied by a parent or guardian.
"(2) Nothing herein contained shall be construed as permitting the issuance of a license for any slot machine or as legalizing any coin-operated machine or device in which is incorporated any gambling feature, and all use thereof for gambling of any kind is prohibited.
"(3) It is unlawful for any person holding a licensee under this chapter to permit the operation of a device, as defined in Section 3-501, between the hours of 2:00 a.m. and 6:00 a.m. of any day.
"(4) Nothing in this chapter shall be construed as prohibiting the keeping and use of pool tables, billiard tables, bowling alleys, shuifleboards, or other licensed amusements and their usual appurtenances in places duly licensed and operated under applicable ordinances of the city.” Warren City Ordinance 30, § 3-505.
Defendant, Jacqueline Walker, the owner of Walker’s Pinball Arcade, catered to youths within the City of Warren. On January 18, 1979, two police officers observed several individuals in defendant’s arcade who appeared to be minors. Upon entering and questioning the youths, the officers ascertained that at least six youths were under 17 and were not accompanied by a parent or guardian. The officers issued defendant a citation charging her with "allowing a minor to operate mechanical machines”. Following a bench trial in district court, defendant was found guilty of violating the ordinance and assessed a fine and costs in the amount of $500. On appeal, the circuit court affirmed. Thereafter, defendant sought leave to appeal to this Court, which was denied in an order dated April 9, 1981. However, defendant then sought leave to appeal to the Supreme Court, which remanded the case to this Court for consideration as on leave granted. 412 Mich 888 (1981).
Defendant challenges the validity of the ordinance on the following grounds:
1. The ordinance restricts the exercise of fundamental First Amendment rights of expression and association;
2. The ordinance violates federal and state constitutional guarantees of equal protection; and
3. The ordinance violates the prohibition against age discrimination in the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.
I
Defendant asserts that the ordinance restricts, without compelling reason, the right of persons under the age of 17 to associate by prohibiting them from coming to the game center unless accompanied by an adult. Defendant has standing to raise the issue of the infringement of the First Amendment rights of potential customers. See e.g., Carey v Population Services International, 431 US 678; 97 S Ct 2010; 52 L Ed 2d 675 (1977). The case or controversy requirement of Article III of the United States Constitution is satisfied since the ordinance directly applies to defendant. Defendant is "obliged either to heed the statutory prohibition, thereby incurring a direct economic injury through the constriction of [her] market, or to disobey the statutory command and suffer legal sanctions”. Carey v Population Services International, supra, p 683.
Were this Court to hold that playing pinball or video games is a fundamental right, it is clear that the City of Warren would then have the burden of justifying the restriction with an interest sufficiently compelling to outweigh the impermissible effect of the ordinance. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975). Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973). Further, the existence of a compelling interest may yet be insufficient if we find that the ordinance is too restrictive under the circumstances. Shelton v Tucker, 364 US 479; 81 S Ct 247; 5 L Ed 2d 231 (1960).
We have searched in vain for a sustainable theory upon which to base such a ruling. However, the ordinance in this case must pass constitutional muster.
The right of association is not expressly recited in or created by the language of the First Amendment of the Constitution to the United States. But it has long been recognized as implicit within and emanating from the rights expressly guaranteed. The Fourteenth Amendment makes the same applicable to the states. Buckley v Valeo, 424 US 1; 96 S Ct 612; 46 L Ed 2d 659 (1976); Healy v James, 408 US 169; 92 S Ct 2338; 33 L Ed 2d 266 (1972). The right of association has received recognition in connection with group associations. See Anno, 33 L Ed 2d 865. However, it has never been held to apply to the right of an individual to associate for purposes purely social in character.
The criterion established thus far appears to protect the right to associate when the expressive conduct around which the association is centered is accorded protection by the First Amendment. Cousins v Wigoda, 419 US 477; 95 S Ct 541; 42 L Ed 2d 595 (1975); National Association for the Advancement of Colored People v Button, 371 US 415; 83 S Ct 328; 9 L Ed 2d 405 (1963); Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich, 426 US 696; 96 S Ct 2372; 49 L Ed 2d 151 (1976); Kedroff v St Nicholas Cathedral of the Russian Orthodox Church in North America, 344 US 94; 73 S Ct 143; 97 L Ed 120 (1952). Thus, a group which assembles for purposes constitutionally protected under the freedom of expression guarantee may properly require a compelling interest when the government seeks to interfere with or discourage the group’s pursuit.
Defendant has not demonstrated that the communicative elements of playing video games are entitled to constitutional protection. We are not prepared on these facts to so hold. Therefore, the ordinance which restricts association for this purpose is not violative of the First Amendment. We adopt the rationale of the Massachusetts Supreme Court in Marshfield Family Skateland, Inc v Town of Marshfield, 389 Mass 436; 450 NE2d 605 (1983), app dis 104 S Ct 475; 78 L Ed 2d 675 (1983):
"[A]lthough entertainment may be entitled to First Amendment protection, 'to gain protected status, that entertainment must be designed to communicate or express some idea or some information.’ * * * '[I]t appears that any communication or expression of ideas that occurs during the playing of a video game is purely inconsequential.’ ” 450 NE2d 609.
II
Defendant next asserts that the application of the 17-year-old age requirement to amusement machine centers violates the federal and state constitutional guarantees of equal protection. US Const, Am XIV; Const 1963, art 1, § 2.
Equal protection cases are analyzed under a two-tiered approach:_
"If the interest is 'fundamental’ or the classification 'suspect’, the court applies a 'strict scrutiny’ test requiring the state to show a 'compelling’ interest which justifies the classification. Rarely have courts sustained legislation subjected to this standard of review.
"Other legislation, principally social and economic, is subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. It has been said that '[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it’. A classification will stand unless it is shown to be 'essentially arbitrary’. New statutes have been found so wanting in 'rationality’ as to fail to satisfy the 'essentially arbitrary’ test.” Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975) (footnotes omitted).
The equal protection guaranty of the Michigan Constitution is applied under the same standards as the corresponding provision of the federal constitution. Fox v Employment Security Comm, 379 Mich 579; 153 NW2d 644 (1967).
Age is not a suspect classification for equal protection purposes. Massachusetts Board of Retirement v Murgia, 427 US 307, 313-314; 96 S Ct 2562; 49 L Ed 2d 520 (1976); People v Perkins, 107 Mich App 440, 443; 309 NW2d 634 (1981). Nor, of course, are mechanical amusements or amusement machine centers a suspect classification. Defendant argues, however, that the classifications created by the ordinance as to age and mechanical amusements are arbitrary.
The city offers the following in its briefs on appeal as justification for the ordinance:
"The ordinance in question was passed because children were spending their lunch money on the pinball machines instead of buying lunch. Some children were 'borrowing’ lunch money from other children to play the pinball machines. The term 'borrowing’ includes strong-arm robbery. Children were stealing money from their parents. These instances occurred when pinball machine arcades were located close to schools. On occasion [sic] where the amusement center was located close to other stores, the neighboring store owners complained that at noon time and after school there were so many children gathering around that customers could not get into their stores. With parents and school officials complaining, something had to be done to regulate the amusement centers.”
"* * * The lengthy police reports and citizen complaints documenting evidence of vandalism, truancy, drug and alcohol abuse, and irresponsible use of money, coupled with complaints of noise, littering, traffic problems and an increased crime and trespassing incidents in neighboring areas and businesses clearly demonstrates a deterioration of certain public interests.”
The city also alleged that deleterious psychological effects result from playing video and pinball games, such as gambling compulsions and addiction to playing such games.
We do not believe defendant has sustained her burden of showing that the ordinance in question is without any reasonable justification. We disagree that the ordinance must be struck down because the city chose to treat minors and pinball or video machine arcades differently than adults and bowling alleys. Cf. People v Palazzolo, 62 Mich App 140; 233 NW2d 216 (1975). The current popularity of amusement arcades, particularly among young people, has clearly created problems unique to such businesses which the City of Warren has attempted to minimize by the implementation of the ordinance under attack here. The classifications in the ordinance are not "essentially arbitrary”.
III
Finally, defendant’s argument that the ordinance violates the prohibition against age discrimination in the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., is void of merit. Section 302 of the statute prohibits age-based discrimination in places of public accommodation "except where permitted by law”. The term "law” includes the entire body of law, including, it is clear, validly passed municipal ordinances. See Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428, 441; 310 NW2d 408 (1981).
Also without merit is defendant’s contention that the city had no authority to enact the ordinance. The City of Warren had constitutional authority, Const 1963, art 7, § 22, as well as statutory authority derived from the home-rule cities act, MCL 117.1 et seq.; MSA 5.2071 et seq. See MCL 117.4i(4); MSA 5.2082(4).
Defendant’s conviction is hereby affirmed.
The penalty provisions for violation of the ordinance are set forth below:
"Sec. 3-515 Penalty. — Any person who shall violate any of the provisions of this chapter shall be penalized in accordance with Sections 1-110 and 1-111 of the Warren Code of Ordinances.”
"Sec. 1-110 General penalty. — Whenever in this code or any ordinance of the city any act is prohibited or is made or declared to be unlawful or an offense, or whenever in this code or such ordinance the doing of any act is required or the failure to do any act is declared to be unlawful, the violation of any such provision by any person shall, upon conviction, be punished by a fine not exceeding $500.00 or imprisonment for a term not exceeding 90 days, or both, except whenever a specific penalty is otherwise provided.”
In our judgment, the facts of this case present a classic "Trouble in River City” scenario (depicted in the broadway musical The Music Man), wherein popular pastimes of youths such as bowling, billiards, roller skating and pinball machines are singled out as activities which exert immoral influences on the youths. Establishments which cater to such activities have been held to be a common nuisance:
"The 'hurt’ or injury to the community, which has occasioned bowling alleys kept for gain and common use to be regarded as common nuisances, arises from their tendency to withdraw the young and inconsiderate from any useful employment of their time, and to subject them to various temptations. * * * Clerks, apprentices and others are induced, not only to appropriate to them hours, which should be employed to increase their knowledge and reform their hearts, but too often to violate higher moral duties to obtain means to pay for the indulgence. Other bad habits are in such places often introduced or confirmed. The moral sense, the correct principles, the temperate, regular and industrious habits, which are the basis of a prosperous and happy community, are frequently impaired or destroyed. Bowling alleys without doubt may be resorted to by many persons without such injurious results. The inquiry is not what may be done at such places without injury to persons of fixed habits and principles, but what has been in the experience of man, their general tendency and result. The law notices the usual effect, the ordinary result of a pursuit or course of conduct, and by that decides upon its character. It need not be the necessary and inevitable result of a bowling alley kept for gain and common use, that it is thus injurious to the community, to make it a common nuisance.” State v Haines, 30 Me 65, 75-76 (1849). Quoted in Roy v Inhabitants of City of Augusta, 387 A2d 237, 238-239 (Me, 1978).
In Michigan, see Devereaux v Genesee Twp Board, 211 Mich 38; 177 NW 967 (1920). Bloss v Paris Twp, 380 Mich 466; 157 NW2d 260 (1968). Franchise Realty Interstate Corp v Detroit, 368 Mich 276; 118 NW2d 258 (1962). See also 100 ALR3d 252. In most instances, the moral stigma disappears as the interests of the youths change and as the mores of the community change (usually as the minors become responsible adults). We are not convinced, indeed we feel strongly, that other less restrictive alternatives are available to the City of Warren to help control the truancy of its youths. Unfortunately, this observation does not reach the constitutional question. The jurisdictions that have examined similar ordinances concur that they are not unconstitutional.
See Aladdin’s Castle, Inc v Village of North Riverside, 66 Ill App 3d 542; 383 NE2d 1316 (1978). Rothner v City of Des Plaines, 554 F Supp 465 (ND Ill, 1981). Marshfield Family Skateland, Inc v Town of Marshfield, 389 Mass 436; 450 NE2d 605 (1983), app dis 104 S Ct 475; 78 L Ed 2d 675 (1983). Compare Aladdin’s Castle, Inc v City of Mesquite, 630 F2d 1029 (CA 5, 1980), rev’d in part and remanded 455 US 283; 102 S Ct 1070; 71 L Ed 2d 152 (1982), rehearing 713 F2d 137 (CA 5, 1983).
We concur in the observation by the Marshfield court that "in the future video games which contain sufficient communicative and expressive elements may be created”. 450 NE2d 609-610. However, defendant in the present case does not argue that any particular video game in her establishment merits protection. Rather, defendant argues that video games are within the genre of entertainment forms protected by the First Amendment. It is this assertion that we reject. | [
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Per Curiam.
Defendant Allstate Insurance Company appeals as of right from a judgment ordering defendant Allstate to pay no-fault automobile insurance benefits to plaintiff Eddie Thornton, Jr.
For purposes of this appeal, the parties have adopted the statement of facts as set forth in the opinion of the trial court:
"At approximately 2:40 a.m. on the morning of December 2, 1978, Eddie Thornton, Jr. (hereinafter referred to as Thornton), age 44, was operating a taxicab in the City of Flint, Michigan. He received a call over his radio informing him that there was a fare at 324 Highland Court and he proceeded to that location. Thornton pulled his cab in front of the house and honked his horn. Robert James Phifer, age 20, entered the back seat of the cab and requested that Thornton take him to 3410 Marvin Street. As Thornton began to pull away from the curb, Phifer drew a .25 caliber automatic pistol and, without a warning or a demand for money, shot Thornton once in the right side of the neck. As a result of this wound, Thornton is completely paralyzed from the neck down.
"After the shooting, Phifer demanded Thornton’s money. He was able to obtain approximately $15.00 in change. Immediately thereafter, by previous arrangement, and with the aid of an accomplice, David Lee Caradine, who waited in the house during the ambush, Phifer pulled Thornton from the cab and dragged him across the street between two houses. There, Phifer stripped Thornton of his coat and shirt and left him lying half naked in the snow. Thornton remained conscious throughout the entire ordeal.
"At the ensuing criminal prosecution of Phifer, Cara-dine testified that, after Phifer suggested calling the cab and after Phifer called the cab, but before the cab arrived, Phifer pulled out a gun and stated that he was going to shoot the cab driver. Caradine further testified that Phifer directed him to remain in the house until after he heard the gunshot, at which time he was to come outside.
"Robert James Phifer was convicted of armed robbery and assault with intent to commit great bodily harm less than murder and is currently serving a sentence of 50 to 75 years.
"* * * Thornton was licensed by the City of Flint to operate a cab. At the time of the assault, Thornton was working under an arrangement with Nelvia Miller whereby he drove a cab at night, from approximately 7:00 p.m. to 8:00 a.m. * * * Although Thornton was required to serve all parts of the City of Flint, the great majority of his trips were within the area of the north end of Flint.
"The deposition of Thornton was taken at the Martha T. Berry Medical Facility in Mt. Clemens on September 9, 1982. Thornton testified to the facts set forth herein. He further testified that he had once before, a few years earlier, been robbed while operating a different cab. He further testified, based on his memory that Nelvia Miller had previously had a cab driver who had been shot and killed, although he did not remember the name of such gentleman or the time of the occurrence. He further testified that Phifer directly entered the back seat of the car; that he had the front windows rolled up and the front doors locked.
"As a result of the shooting, plaintiff is virtually paralyzed from the neck down and he will need medical care for the balance of his life.
"The Michigan Department of Social Services (MDSS) is the state agency responsible for administering the Medicaid program in the State of Michigan, MCL 400.105 et seq.; MSA 16.490(15) et seq. Plaintiff is medically indigent, in other words, he is too poor to pay for his medical care. Thus far MDSS has paid the sum of one hundred forty-three thousand three hundred ninety-two and 20/100 dollars ($143,392.20) for the injuries sustained by plaintiff at the hands of Robert James Phifer. MDSS is subrogated to plaintiff’s right of recovery for medical assistance, MCL 400.106; MSA 16.490(16).”
The trial court held, as a matter of law, that plaintiffs injuries arose out of the use of the taxicab and that the use of the taxicab was the proximate cause of plaintiffs injuries. The court concluded, therefore, that plaintiff was entitled to recover no-fault benefits from defendant Allstate and ordered payment of those benefits to plaintiff.
The issue on appeal is whether the intentional shooting of a taxicab driver by a passenger fulfills the "arising out of’ requirement of MCL 500.3105(1); MSA 24.13105(1) so as to impose responsibility for no-fault benefits or automobile insurance benefits on the insurer of the taxicab.
Michigan’s no-fault automobile insurance statute provides:
"(1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle * * MCL 500.3105(1); MSA 24.13105(1).
The test to decide whether an injury "arises out of’ the use of an automobile is set forth in Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975), lv den 395 Mich 787 (1975). The Kangas Court identified three factors to look to in deciding whether an injury from an intentional assault arises out of the use of the automobile:
"In summary, we conclude that while the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle.” Kangas, supra, p 17.
Although in subsequent cases this Court has continued to struggle with the three operative terms in this test: "causal connection”, "incidental or fortuitous”, and "foreseeable”, in Williams v Citizens Mutual Ins Co of America, 94 Mich App 762, 764-765; 290 NW2d 76 (1980), this Court explained:
"We note that the term 'arising out of does not necessitate a finding that the injury was directly and proximately caused by the use of the vehicle. On the other hand, it cannot be extended to something distinctly remote. Each case depends on its own facts. Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307, 313-314; 282 NW2d 301 (1979). As a general rule, the injury must be foreseeably identifiable with the normal use of the vehicle. O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979); Rangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975).”
In Gajewski v Auto-Owners Ins Co, 112 Mich App 59; 314 NW2d 799 (1981), this Court denied coverage to a plaintiff injured when, on turning the ignition key in his car, an explosive device attached to the car by persons unknown detonated and severely injured the plaintiff. In reversing, the Supreme Court adopted the position of Judge Cynar’s dissent, 414 Mich 968; 326 NW2d 825 (1982), which states:
"I agree with the trial court that there was a sufficient causal relationship between plaintiff’s use of the vehicle and his injuries. This case is distinguishable from the cases in which benefits were denied because the plaintiff’s presence in the vehicle at the time of the injury was a mere fortuity. See, e.g., Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich App 213; 290 NW2d 414 (1980) (the insured’s husband forced her to the curb, trapped her in her car, and shot her several times with a revolver); Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975) (passengers of the insured’s vehicle assaulted a pedestrian); O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979) (the insured was shot by an assailant while she was sitting in her vehicle). In these cases, the injury could have resulted whether the plaintiff was using the vehicle or not. The vehicle was more than merely the site of the injury. Under the facts in this case, turning the ignition key must be identified with the normal manner of starting a vehicle. There was a direct causal relationship between the use of the motor vehicle and plaintiff’s injuries.”
In the instant case, plaintiff would not have been injured had he not been driving the taxicab dispatched on this particular call. The assailants planned to take whatever money was in the taxicab and rob its driver, regardless of who that driver was. The plaintiff’s injuries would not have occurred had plaintiff not been driving the cab. Being dispatched to and picking up fares who are strangers must be identified with the normal operation of a taxicab. Since we find a direct causal connection between the use of the motor vehicle and plaintiff’s injuries, plaintiffs injuries are compensable under the no-fault act.
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Per Curiam.
Defendant Blue Cross and Blue Shield of Michigan appeals as of right from the trial court’s grant of summary judgment in plaintiffs’ favor.
Plaintiff Dr. Francis Martin, M.D., is employed by plaintiff Oakland Neurosurgical Arts, P.C. On May 11, 1981, Elizabeth K. Allen saw Dr. Martin regarding certain treatment. Prior to commencement of any medical care, Ms. Allen signed a "Memorandum of Understanding”, certifying that she had read and understood the following statements:
"You are hereby advised that the decision to receive care, whether as an office patient or hospital patient, must be made by you freely and must be based upon the medical advice rendered by your physician. Therefore, if your insurance carrier refuses to reimburse you because, in it’s opinion, there is 'a lack of medical necessity’ the responsibility for payment still rests with you.
"It is your obligation to ask the cost of medical care, and it is our duty to discuss with you the fee for the various services to be rendered, if you ask.
"As I choose not to participate in any insurance program including Blue Shield, Medicare, Medicaid and other various prepaid programs, it is the office policy to bill the patient directly for services rendered. We will complete insurance forms to assist you in collecting your insurance benefits.
"The doctor in this office is here for one purpose— that is to render medical care. I do not wish to be involved in any lawsuits. Therefore, I will not correspond with any attorneys except when special arrangements have been made prior to your visit.
"From time to time I am asked to render a Certificate of Disability. Such will be done. But the disability determination will be based on medical factors only. The advice of an employer or union personnel, availability of a suitable job and other nonmedical factors will not be entered into consideration.”
Ms. Allen then underwent a lumbar myelogram on May 12, 1981, and a lumbar laminectomy on May 13, 1981. The charges for these services were $275 and $1,200 respectively, for a total of $1,475.
On June 3, 1981, Ms. Allen signed a Michigan Medical Claim Form. Her signature was below a boxed area entitled "Subscriber’s Certification” and containing the following instruction and information.
"Blue Cross and Blue Shield Member Please Read Carefully
"Please refer to the 'pay provider’ area indicated on the top of this claim form.
"If the ’Yes’ block is checked, payment will be sent to the doctor/provider. Your signature is not necessary.
"If the !No’ block is checked, payment will be sent to the subscriber.
"Your signature is not required to receive Blue Cross and Blue Shield of Michigan benefits. The contractual provisions concerning payment of benefits explain your rights and obligations. This is reproduced on the reverse side of this form. Your signature is required only if you agree to the certification statement below which may obligate you to make an additional payment for services.
" 'I understand the provider’s charge may exceed the Blue Cross and Blue Shield of Michigan payment, and if greater than such payment, I will be responsible for that amount.’ ”
In Ms. Allen’s case, the "yes” block was checked, indicating that payment was to be made directly to Dr. Martin. Directly above Ms. Allen’s signature was the direction "read back before signing”. On the back of the form was an explanation of benefits, including the following:
"3. Blue Cross and Blue Shield of Michigan will make the benefit payment directly to the physician/provider for services performed by a participating physician/provider for services performed within the State of Michigan. For a nonparticipating physician or for services outside the State of Michigan, Blue Cross and Blue Shield will make the benefit payment directly to the physician/provider or subscriber as requested on the report of services.”
On June 24, 1981, Dr. Martin signed the claim form. His signature also followed a direction to "read back before signing”. On the back of the form, below the heading "Physician’s/Provider’s Certification”, was the following:
"A. If Payment to Subscriber:
" 'I certify the services herein were performed personally by me or under my direct and personal supervision and in my presence, and are submitted in accordance with the provisions of the subscriber’s contract. I understand if the Blue Cross and Blue Shield member has not signed this form and thereby agreed to the above statement, no prior agreement exists regarding my fee.’
"B. If Payment to Physician/Provider:
" 'I certify the services herein were performed person ally by me or under my direct and personal supervision and in my presence, and are submitted in accordance with the provisions of the subscriber’s contract. I agree to accept the fee provided by Blue Cross and Blue Shield of Michigan as full payment for these services.’ ”
Dr. Martin had run a line through the last sentence in each of A and B.
Plaintiffs submitted the claim form to defendant, which determined that the sum of $950 was a reasonable charge for the services rendered to Ms. Allen and issued a check to plaintiffs in that amount. Plaintiffs then billed Ms. Allen for the balance of $525. Ms. Allen contacted defendant’s office concerning her obligation to pay the balance. On March 26, 1982, defendant drafted a letter to Ms. Allen, stating in part:
"The doctor billed us for direct reimbursement and we paid the maximum fee, $950. By choosing this billing method, the doctor has agreed to accept our determination as payment in full. Therefore, we will communicate directly with your doctor to resolve the issue of a balance billing.
"You have no further liability for the above mentioned service. If the doctor continues to bill, please return this letter along with a copy of the billing to our attention.”
Ms. Allen did not pay the balance claimed by Dr. Martin, so plaintiffs turned over the account to a collection agency, World Credit, Inc. On September 8, 1982, counsel for defendant drafted a letter to Dr. Martin, with copies to World Credit, Inc., and Ms. Allen, stating that, notwithstanding the stricken terms on the back of the claim form, Dr. Martin had agreed "to accept the BCBSM payment as his full fee and [was] thereby precluded from attempting to collect anything further from the patient”. The letter threatened suit for breach of contract and malicious prosecution if plaintiffs instituted proceedings against Ms. Allen. The letter went on to state that Ms. Allen had been instructed to ignore the World Credit, Inc., notices and continued dunning would be regarded as violations of § 915 of the collection practices act, MCL 339.915(f); MSA 18.425(915)(f).
On September 28, 1982, plaintiffs commenced an action in district court for tortious interference with an existing contract. In its answer, defendant asserted that no agreement to pay a balance due existed at law. Defendant also filed a counterclaim in two counts. Count I alleged breach of Dr. Martin’s participation-by-the-case agreement and requested nominal damages. Count II requested that plaintiffs be enjoined from pursuing patients for non-approved monies, that plaintiffs be required to make refunds to patients collected against, that participation-by-the-case be declared the equivalent to full participation as to that case and that alteration of the notice statements on the claim form be declared a nullity. Since Dr. Martin and other physicians associated with Oakland Neurosurgical Arts, P.C., had altered claim forms for other patients in addition to Ms. Allen, the parties agreed that Ms. Allen should serve as a representative patient/subscriber for other subscribers who were also patients of plaintiffs. Because of the equitable relief sought, defendant’s request for removal to circuit court was granted pursuant to DCR 203.5(1). The circuit court denied defendant’s motion for a preliminary injunction. The parties thereafter brought motions for summary judgment, plaintiffs’ motion under GCR 1963, 117.2(3) and defendant’s cross-motion under GCR 1963, 117.2(1), (3). Summary judgment was granted in plaintiffs’ favor. It is from this grant of summary judgment that defendant takes this appeal.
On appeal, defendant argues that Dr. Martin’s submission of the claim form to BCBSM, with benefits requested to be payable to the provider, created in Dr. Martin the legal status of participating physician and that Dr. Martin’s effort to abrogate this status by striking portions of the claim form was to no avail. Defendant contends that Dr. Martin, as a participating physician, did not have the legal ability to bill and collect from Ms. Allen an amount in addition to that paid by BCBSM. Rather, defendant contends, Dr. Martin’s agreement with BCBSM rendered void his earlier agreement with Ms. Allen.
Plaintiffs contend that since Ms. Allen specifically acknowledged and agreed to be responsible for any balance due in excess of the amount reimbursed by defendant, Ms. Allen was liable for the balance due and that defendant, without justification, instructed Ms. Allen to refuse to pay that balance, thereby interfering with the already existing contract between plaintiffs and Ms. Allen.
After reviewing the facts as stipulated, the claim form, and the applicable laws, we conclude that the writings contained on the reverse side of the claim form constituted an explanation of the procedures and consequences of submitting the form to BCBSM and requesting payment in one of two ways, "pay provider” or "pay subscriber”, and were not proposed terms to be accepted or rejected by Dr. Martin. We note that this reimbursement scheme was expressly approved by the Michigan Insurance Commissioner in a consent judgment in Colburn v Michigan Medical Service (Wayne County Circuit Court, Docket No. 5945, 1963). See also OAG, 1975-76, No 4859, pp 480-482 (June 2, 1976). We hold, therefore, that by checking off the "pay provider” box on the front of the form and signing on the front of the form, Dr. Martin agreed to accept the BCBSM payment as payment in full for his services to Ms. Allen. BCBSM’s payment to Dr. Martin, therefore, extinguished any debt owed by Ms. Allen to Dr. Martin and, thus, there was no contract between Ms. Allen and Dr. Martin with which BCBSM could have interfered.
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D. F. Walsh, P.J.
The facts in this case are adequately set out in the dissenting opinion.
In our judgment, the holding of the dissent is at odds with the well-established principle that, once all of the elements of a cause of action have occurred, the running of the statutory period of limitation is not delayed until the claimant becomes aware of the identity of the alleged tortfea sor. Thomas v Ferndale Laboratories, Inc, 97 Mich App 718; 296 NW2d 160 (1980).
The dissent places much reliance on O’Keefe v Clark Equipment Co, 106 Mich App 23; 307 NW2d 343 (1981). The O’Keefe panel cited, and applied, the "rule” set forth by this Court in Charpentier v Young, 83 Mich App 145, 149-150; 268 NW2d 322 (1978):
"We, therefore, conclude that whether a party seeking to add parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable statute of limitations in favor of an added party, is for determination in the first instance by the trial court. An added party may obtain the trial court’s review of the circumstances leading up to the filing of the amended complaint by filing a motion for accelerated judgment based upon the statute of limitations. The trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitations defense. It is then within the discretion of the trial court to grant or deny the motion based upon his evaluation of the circumstances in each case.”
Concurring in the result, Judge Riley expressed the view in Charpentier that a more definite rule would be preferable to the majority’s general discretion standard:
"A statute of limitations is primarily a technical counting process which provides some measure of security to the parties in regard to when the statutory bar goes into effect. A possible rule would be that the statute be tolled for the amount of time the court takes to decide on a motion to amend if that delay extends beyond the date on which the original limitations period would end. The problem of dilatory actions to increase this delay could be handled by the trial court’s vigilance over its motion docket.” 83 Mich App 152.
The Supreme Court reversed in Charpentier:
"Leave to appeal considered November 30, 1978, and, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, the Court of Appeals is reversed, the trial court’s accelerated judgments in favor of defendantsappellees are set aside, and the case is remanded to the trial court for further proceedings. The statute of limitations was tolled for 21 days, from March 10 to March 31, 1976, the time during which the motion to amend complaint and add parties defendant was pending, plaintiffs having demonstrated due diligence by seeking a decision on their motion within three weeks.” 403 Mich 851; 291 NW2d 926 (1978).
In this case, the dissent states: "I am unable to ascertain from the brief order how much of the Charpentier rationale is reversed and to what matters the test of due diligence is to be applied.” Our reading of the Supreme Court’s order, however, persuades us that the Supreme Court rejected the general discretion standard of this Court’s Charpentier majority. See Moore v Flower, 108 Mich App 214, 217; 310 NW2d 336 (1981):
"We see, as did Judge Riley in her concurrence in Charpentier, supra, a serious problem with permitting the trial court to extend a defendant’s liability depending on whether the trial court, in its discretion, finds that a plaintiff exercised diligence in attempting to join that defendant. Application of statutes of limitations is a counting procedure with a primary purpose being to give the parties and the courts a specific time at which the statutory bar goes into effect. We find that the Supreme Court order in Charpentier, supra, applies such a rule and hold that, when a plaintiff moves to add a party defendant or to amend a complaint to do so, the statute of limitations is tolled during the time in which the motion to add parties or amend the complaint is pending in the trial court.”
While we are persuaded of no reason to prohibit the filing of "John Doe” complaints, it is our opinion that the running of the applicable statutory limitation period is not interrupted by the filing of such a complaint. The Supreme Court has identified the purposes served by statutes of limitation:
"Statutes of limitations are intended to 'compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend’; 'to relieve a court system from dealing with "stale” claims, where the facts in dispute occurred so long ago that evidence was either forgotten or manufactured’; and to protect 'potential defendants from protracted fear of litigation’.” Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974), citing 51 Am Jur 2d, Limitation of Actions, § 17, pp 602-603.
Would-be plaintiffs must diligently investigate potential claims within the time frames established by the Legislature. Defendants are entitled to notice of claims within the applicable statutory limitation period. See Meda v City of Howell, 110 Mich App 179; 312 NW2d 202 (1981).
Reversed.
D. L. Sullivan, J., concurred.
Remanded, 414 Mich 897; 323 NW2d 6 (1982), On Remand 121 Mich App 235; 329 NW2d 35 (1982). | [
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Per Curiam.
Plaintiff, Viola A. Martin, who was seriously injured in an automobile accident on June 18, 1978, sought no-fault benefits against defendants, Detroit Automobile Inter-Insurance Exchange (DAIIE) and Nationwide Mutual Insurance Company. Defendant DAIIE filed a cross-claim against defendant Nationwide for recoupment of payments made to plaintiff prior to com mencement of the lawsuit on April 17, 1979. After a hearing and after the parties stipulated the facts, the trial court filed a written opinion holding that defendant DAIIE was solely responsible for paying plaintiff the benefits provided under the no-fault insurance policy. Defendant DAIIE appeals as of right.
When injured, plaintiff was a passenger in an automobile owned by her mother, Lois Boyd, and insured by defendant Nationwide. Plaintiff neither owned a car nor did she have a policy of automobile insurance. At the time of the accident, plaintiff was separated from her husband, Timothy Martin, and had filed a complaint for divorce. She was living with her mother. Timothy Martin was insured by defendant DAIIE.
In seeking recovery of 50% of the benefits that it paid to plaintiff, defendant DAIIE contends on appeal that it was in a position of equal priority with Nationwide, the insurer of plaintiff’s mother’s automobile. DAIIE argued that since neither insurer was the primary or secondary carrier in reference to plaintiff’s claim, it was entitled to reimbursement from Nationwide.
The parties agree that this case is controlled by MCL 500.3114(1); MSA 24.13114(1), which provides in pertinent part:
"(1) Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in section 3101(1) applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident.”
In a trilogy of cases, this Court has held that an estranged spouse who is not domiciled in the household of the named insured continues to be covered by the named insured’s no-fault automobile policy until the divorce is finalized. The first of these cases, Citizens Mutual Ins Co v Community Services Ins, involved a declaratory judgment action brought by the insurer of the automobile in which the injured party was a passenger. That insurer contended that Community Services Insurance, which provided a no-fault policy of insurance to the injured party’s estranged husband, was the primary carrier. Community Services argued that since the injured spouse was not domiciled in the same household as her husband at the time of the accident, she was ineligible for benefits under his insurance policy. This Court interpreted the words "domiciled in the same household” as used in MCL 500.3114; MSA 24.13114 to modify and relate only to "any relative of either” and not to "his spouse”. Thus, this Court held that the injured spouse need not be domiciled in the household of the named insured when the accident occurred to recover no-fault benefits under the named insured’s policy.
In Bierbusse v Farmers Ins Group of Companies, the issue was whether MCL 500.3114(1); MSA 24.13114(1) was applicable to the daughter of the named insured when, at the time of the automobile accident, the daughter was domiciled in a separate household with the estranged spouse of the named insured. In holding that the daughter was covered by her father’s no-fault policy, the Bierbusse Court stated:
"When a couple is separated pending divorce and one spouse is the named insured on a no-fault policy, the other spouse and the children of the named insured are covered by the no-fault policy, even though they are domiciled in separate households, until the divorce is finalized.”
At issue in Smith v Auto-Owners Ins Co, was whether the step-children of the named insured are afforded personal injury protection benefits under his no-fault insurance policy when, on the date of the automobile accident, they were domiciled in a separate home with their natural parent, the named insured’s estranged wife. In holding that the coverage applied to the named insured’s step-children, we stated:
"Contrary to defendant’s contention, extension of the Bierbusse rule to step-children of the named insured does not abrogate the prerequisite of domicile nor does it impair the insurer’s ability to reasonably calculate the scope of its risk. Rather, our holding is limited to the children of the named insured’s spouse who were domiciled in the marital home at the time the parties were living together, but were domiciled in a separate household with the named insured’s spouse pending a divorce.”
On appeal, defendant DAIIE contends that since plaintiff did not have her own insurance policy, she was eligible to derive coverage from the policies of both her estranged husband and her mother, since she was a resident of the household of her mother at the time of the accident as well as an occupant of her mother’s automobile.
Unlike the Smith, Bierbusse and Citizens Mutual cases, the matter at bar includes an additional aspect: the injured party, on the date of the accident, was domiciled in her mother’s home and, in fact, was a passenger in her mother’s, automobile when the accident occurred. Plaintiff did not own a no-fault insurance policy, but both her estranged spouse and mother held policies.
The statute provides that personal protection coverage is available to three classes of persons, namely, (1) the person named in the policy, (2) the person’s spouse, and (3) a relative of either domiciled in the same household. Clearly, plaintiff enjoyed coverage under both her husband’s policy and her mother’s policy. With respect to the latter, she was residing in her mother’s house and, thus, was a relative domiciled in the same household as her mother, the "person named in the policy”.
There then remains the question of priority between the carrier for the husband (defendant DAIIE) and the carrier for the mother (defendant Nationwide). In our view, the correct interpretation of the statute establishes priority in the order that they appear in the policy, namely, the named insured, the spouse of the named insured, if any, and a relative of either domiciled in the same household. Thus, as between the carrier insuring plaintiff’s spouse and the carrier insuring plaintiff’s mother, the carrier insuring plaintiff’s spouse was responsible, i.e., defendant DAIIE as insurer of plaintiff’s spouse, Timothy Martin, was liable to pay no-fault benefits to plaintiff under the facts of this case, where plaintiff carried no no-fault insurance of her own.
Defendant DAIIE was in a higher order of priority with respect to providing personal protection insurance benefits to parties within the zone of risk contemplated by the policies. Defendant DAIIE is not entitled to recoupment from Nationwide. The fact that plaintiff was separated from her husband and was suing him for divorce does not alter this result.
Our conclusion rests on more than the bare language of the statute. We perceive that the Legislature intended that a spouse is a more natural and logical source of benefits under the no-fault insurance statute than any other relative of the injured party with whom the injured party is living at the time of the accident. The carrier of another relative of the injured party with whom the injured party is living, other than a spouse, only becomes liable to pay in that classification when the injured party has neither a policy of no-fault insurance of his or her own, nor recourse to a policy of no-fault insurance belonging to his or her spouse.
Affirmed.
Plaintiff died on July 11, 1982.
For the definition of "domicile” in connection with the no-fault act, see Workman v DAIIE, 404 Mich 477, 495-498; 274 NW2d 373 (1979). In the instant matter, the parties, pursuant to a stipulation of facts filed with the trial court, agree that plaintiff was living with her mother at the time of the accident.
65 Mich App 731; 238 NW2d 182 (1975), lv den 396 Mich 834 (1976).
The Legislature amended MCL 500.3114(1); MSA 24.13114(1) in 1975 by placing a comma after "[the person’s] spouse”. 1975 PA 137, § 1, effective July 3, 1975.
84 Mich App 34; 269 NW2d 297 (1978).
Id., pp 37-38.
123 Mich App 585; 332 NW2d 620 (1983).
Id., p 589. | [
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M. J. Kelly, J.
Defendant was charged with the malicious destruction of police property, MCL 750.377b; MSA 28.609(2), and with resisting arrest, MCL 750.479; MSA 28.747. Pursuant to a plea bargain, defendant pled guilty to the charge of resisting arrest in exchange for a dismissal of the malicious destruction charge. Defendant was subsequently sentenced to three years probation with the first four months to be served in the county jail and was ordered to pay restitution in the amount of $960.27 for damages to a police car with which he had allegedly collided in the course of a chase. Defendant appeals as of right, raising two issues.
Defendant first contends that the condition of restitution to his sentence is improper. We agree. While a sentencing court is given wide latitude in imposing conditions of probation, including restitution, MCL 771.3; MSA 28.1133, such authority is not without limits.
In debating the legality of the condition of restitution imposed in this case, the defendant and the prosecution have framed the issue as a choice between two conflicting rules of restitution, one announced in People v Becker, 349 Mich 476; 84 NW2d 833 (1957), the other in People v Gallagher, 55 Mich App 613; 223 NW2d 92 (1974), lv den 393 Mich 766 (1974). In People v Becker, with four justices concurring in the opinion and four justices concurring in the result only, the Supreme Court held that restitution "can be imposed only as to loss caused by the very offense for which defendant was tried and convicted”. 349 Mich 486. In People v Gallagher, this Court held that restitution may be imposed for "the whole loss caused by a course of criminal conduct upon conviction of a crime arising out of that conduct”. 55 Mich App 618. Defendant argues that People v Becker is controlling and mandates that the restitution condition of his probation sentence be vacated.
We, however, do not see any need to discuss the conflict between Becker and Gallagher since we find that the condition of restitution imposed upon defendant is improper even under the Gallagher rule. This Court has consistently held that, in cases where restitution is imposed as part of a criminal sentence, "there must be persuasive support in the record for the sentencing judge’s conclusion that the losses for which restitution is ordered were caused by the criminal conduct of the defendant”. People v Pettit, 88 Mich App 203, 207; 276 NW2d 878 (1979), lv den 406 Mich 987 (1979). See also People v Seda-Ruiz, 87 Mich App 100; 273 NW2d 602 (1978); People v American Medical Centers of Michigan, Ltd, 118 Mich App 135; 324 NW2d 782 (1982), lv den 417 Mich 985 (1983); People v Rives, 123 Mich App 273; 333 NW2d 249 (1983), lv den 417 Mich 1099 (1983).
In this case, there was no evidence or testimony introduced at the plea-taking hearing from which to conclude that defendant was involved in an automobile collision with the police. Nor is there any evidence regarding damage to police property resulting from defendant’s criminal conduct in avoiding arrest. Defendant cannot be held criminally liable for conduct to which he never pled guilty or for which he was never tried and convicted. People v Winquest, 115 Mich App 215; 320 NW2d 346 (1982). The condition of restitution imposed as part of defendant’s sentence is vacated.
Defendant next argues that the trial court improperly imposed a three-year probation sentence for a two-year misdemeanor conviction. The Michigan Supreme Court has recently decided that an offense is a felony, as defined under MCL 761.1(g); MSA 28.843(g), "so long as the statutory maximum is for more than one year, regardless of the mandatory minimum”. People v Blythe, 417 Mich 430, 437; 339 NW2d 399 (1983). Since the statutory maximum sentence for resisting arrest is two years, the offense is a felony under MCL 761.1(g); MSA 28.843(g) and a probation sentence of up to five years may be imposed under MCL 771.2; MSA. 28.1132. See, also, People v Reuther, 107 Mich App 349, 352-353; 309 NW2d 256 (1981), and People v Stiles, 99 Mich App 116, 121; 297 NW2d 631 (1980), lv den 410 Mich 891 (1981).
Conviction affirmed. Sentence modified, the restitution order being vacated.
G. R. Cook, J., concurred. | [
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Wahls, P.J.
Plaintiffs appeal as of right an order of the trial court which granted summary judgment in favor of defendant Edwin Gregory. Plaintiffs were severely injured in an automobile collision between their vehicle and one driven by defendant Dwayne Darrel Popiolek. Defendant Gregory was a passenger in the Popiolek vehicle. Plaintiffs brought a lawsuit alleging negligence on the part of defendants Popiolek, Gregory and Goodyear Tire & Rubber Company. Plaintiffs also brought an action under the dramshop act, MCL 436.22; MSA 18.993. The present appeal concerns only defendant Gregory.
The plaintiffs’ allegations against defendant Gregory are set forth below:
"That defendant, Edwin Gregory, acted [sic] in concert with defendant, Dwayne Darrel Popiolek did possess and transport alcoholic beverages to a minor and did unlawfully purchase, consume and possess and transport alcoholic beverages in a motor vehicle while said party [sic] were minors contrary to MCL 436.33(a).
"That defendant, Edwin Gregory was further negligent in the premises in that he placed said alcoholic beverages in codefendant’s vehicle and did allow the consumption therein whereby defendant, Dwayne Darrel Popiolek drove his motor vehicle in a reckless, wanton and careless manner thereby proximately causing or contributed to plaintiffs’ injuries. That said defendant owed a duty to plaintiffs and to others to obey the statutory requirements and that said defendant did violate said statutes which placed alcoholic beverages into the stream of commerce to be used by codefendant, Dwayne Darrel Popiolek, and that such negligent acts were a direct and proximate or a proximate result of the ensuing collision and resulting serious injuries.
"That defendant, Edwin Gregory, a minor, did unlawfully purchase alcoholic beverages and did negligently open and hand a can of beer or cause to be handed a can of beer to defendant, Dwayne Darrel Popiolek, a minor, who then consumed said beverage while operating a motor veicle on the highway and that said act was in violation of a statute, same being MCL 436.34; MSA 18.1005 and said violation was negligence per se.
"That defendant, Edwin Gregory, acted in a wilful, wanton and grossly negligent manner in providing said alcoholic beverages for use and consumption within a motor vehicle and on a public highway and that said act was intentional and constituted a violation of the common law applicable.
"That further, defendant, Edwin Gregory, did violate the statutory duty imposed upon him, contrary to MCL 436.34; MSA 18.1005 and MCL 436.34(a); MSA 18.1005(1) which was the proximate cause of plaintifFs’ injuries and damages.
"That defendant, Edwin Gregory, did knowingly provide alcoholic beverages to the driver of a motor vehicle, which act was intentional and that he continued to act in concert with the operator of a motor vehicle on a public highway which action was negligence and a proxiamte cause of plaintiffs’ injuries and damages.”
Defendant Gregory made a motion for summary judgment based upon GCR 1963, 117.2(1). Defendant Gregory argued that the statutes relied upon by plaintifFs did not state a cause of action as to a passenger in a motor vehicle, but rather were applicable to the driver only. The trial court granted summary judgment on this basis. On appeal, plaintifFs argue that the allegations set forth in their complaint and amended complaint constitute a valid cause of action. PlaintifFs argue that the statutes upon which they rely were enacted in an effort to protect the general public from personal injuries and that a violation of the statutes gives rise to a prima facie case of negligence.
It is well settled in this state that violation of a statute is per se negligence if the statute was intended to protect a class of persons, including the plaintiff from the type of harm which resulted from its violation. Thaut v Finley (On Rehearing), 50 Mich App 611; 213 NW2d 820 (1973). Lover v Sampson, 44 Mich App 173; 205 NW2d 69 (1972). This Court has held that "statutes governing the use and consumption of alcoholic beverages” may provide the basis for a valid claim. Lover v Sampson, supra, pp 182-183. Thaut v Finley, supra, pp 612-613. The issue which is not settled, and which we must decide, is whether §§ 33a, 34 and 34a of the Michigan Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., form the basis for a cause of action when the alleged violator is a passenger rather than the operator of the motor vehicle.
Section 33a of the act provides:
"(1) A person less than 21 years of age shall not knowingly transport or possess, in a motor vehicle alcoholic liquor unless the person is employed by a licensee under this act, the liquor control commission, or an agent of the liquor control commission and is transporting or having the alcholic liquor in a motor vehicle under the person’s control during regular working hours and in the course of the person’s employment. A person who violates this subsection is guilty of a misdemeanor.
"(2) Within 30 days after the conviction of a person for the violation of subsection (1), which conviction has become final, complaint may be made by the arresting officer or the officer’s superior before the court from which the warrant was issued, which complaint shall be under oath and shall contain a description of the motor vehicle in which alcoholic liquor was possessed or transported by the person less than 21 years of age in committing the offense and praying that the motor vehicle be impounded as provided in this section. Upon the filing of the complaint the court shall issue an order to the owner of the motor vehicle to show cause why the motor vehicle shall not be impounded. The order to show cause shall have a date and time fixed in the order for a hearing, which date shall not be less than 10 days after the issuance of the order and shall be served by delivering a true copy to the owner not less than 3 full days before the date of hearing or, if the owner cannot be located, by sending a true copy by certified mail to the last known address of the owner. If the owner is a nonresident of the state, service may be made upon the secretary of state as provided in section 403 of Act No. 300 of the Public Acts of 1949, as amended, being section 257.403 of the Michigan Compiled Laws.
"(3) If the court determines upon the hearing of the order to show cause, from competent and relevant evidence, that at the time of the commission of the offense the motor vehicle was being driven by the person less than 21 years of age with the express or implied consent or knowledge of the owner, and that the use of the motor vehicle is not needed by the owner in the direct pursuit of the owner’s employment or the actual operation of the owner’s business, the court shall authorize the impounding of the vehicle for a period to be determined by the court, of not less than 15 days nor more than 30 days. The court’s order authorizing the impounding of the vehicle shall authorize a law enforcement officer to take possession without other process of the motor vehicle wherever located and to store the vehicle in a public or private garage at the expense and risk of the owner of the vehicle. Appeal shall lie from the order to the circuit court of the county and the provisions governing the taking of appeals from judgments for damages shall be applicable to the appeal. This section shall not prevent a bona fide lienholder from exercising rights under a lien.
"(4) A person who knowingly transfers title to a motor vehicle for the purpose of avoiding this act is guilty of a misdemeanor.” MCL 436.33(a); MSA 18.1004(1).
In construing any statute, we are governed by traditional rules of construction. When a statute is unambiguous on its face, interpretation and construction of its terms are unnecessary. Detroit v Bedford Twp, 253 Mich 453; 235 NW 217 (1931). Carpenter v Flint School Dist, 115 Mich App 683; 321 NW2d 772 (1982), lv den 417 Mich 868 (1983). However, if an ambiguity exists, this Court must give effect to the intention of the Legislature in enacting the statute. Carpenter, supra, pp 686-687.
We hold that § 33a of the Michigan Liquor Control Act applies only to the driver of a motor vehicle who knowingly transports or possesses alcoholic liquor. We find the provisions of the statute unambiguous. The Legislature intended to prevent minor drivers from transporting or possessing alcoholic beverages in a motor vehicle and further intended that any minors found in violation thereof would not only be punished as misdemeanants but would also risk having the motor vehicle impounded. A contrary reading of the statute would render subsections two and three of the section incongruous.
Sections 34 and 34a of the Michigan Liquor Control Act are set forth below:
"Sec. 34. No alcoholic liquor shall be consumed on the public highways. No alcoholic liquor, except beer and/or wine shall be consumed in public parks and places of amusement not licensed to sell for consumption on the premises.” MCL 436.34; MSA 18.1005.
"Sec. 34a. A person shall not transport or possess any alcoholic liquor in a container which is open, uncapped, or upon which the seal is broken, within the passenger compartment of a vehicle on the highways of this state. If the vehicle does not have a trunk or compartment separate from the passenger compartment, a container which is open, uncapped, or upon which the seal is broken shall be encased or enclosed.
"This section shall not apply to any chartered passenger vehicle licensed by the Michigan public service commission.” MCL 436.34(a); MSA 18.1005(1).
Unlike § 33a, the foregoing provisions make no specific reference to the driver of a motor vehicle. Rather, the statute unambiguously proscribes the consumption of all alcoholic liquor on the public highways and the transportation or possession in the passenger compartment of any alcoholic liquor which is open, uncapped, or upon which the seal is broken. We hold that such a complete prohibition applies to a passenger as well as the operator of a motor vehicle. The acts enumerated above expose the general public to a risk of harm which is no less compelling when committed by a passenger in a motor vehicle. While that may also be true for § 33a, we find that the language of § 34a evinces an intent on the part of the Legislature to eliminate the very access one driving a motor vehicle may have to alcoholic beverages. This cannot be accomplished if a person travelling within the vehicle possesses open containers of alcoholic liquors, consuming it at his or her pleasure. The Legislature has deemed the highways and automobiles travelling thereon to be an improper and unsafe environment for the consumption of alcoholic beverages, and while willing to permit consumption of some alcoholic beverages in public parks and places of amusement, forbids the very possession of the same in the passenger compartment of motor vehicles. In our judgment, these provisions admit to only one interpretation. Therefore, an allegation based upon a violation of §§ 34 and 34a of the Michigan Liquor Control Act by a passenger in a motor vehicle is legally cognizable. Defendant was not entitled to judgment as a matter of law.
Accordingly, the summary judgment is reversed and the matter remanded for trial.
Plaintiffs also argue on appeal that § 141a of the Penal Code which makes it a misdemeanor to furnish alcoholic beverages to a minor provides a basis on which to sue defendant. However, this issue is not properly before this Court; plaintiffs did not raise the issue below. Oakland County v Detroit, 81 Mich App 308; 265 NW2d 130 (1978). | [
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Per Curiam.
Defendant, Carl Orlando Brooks, pled guilty to one count of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). During the trial court’s examination of defendant for the purpose of establishing a factual basis for the guilty pleas defendant said that during the commission of the above crimes his firearm was "broke”, and presumably inoperable.
I
Defendant first claims that his pleas must be set aside because the trial court failed to advise him at his arraignment that any sentences imposed would have to be served consecutively to each other. Such advice is not required. People v Brown, 117 Mich App 382; 323 NW2d 721 (1982); People v Shabazz, 121 Mich App 320; 328 NW2d 379 (1982). Further, the minimum sentence as to the armed robbery charge could presumably be as little as one day in prison, People v Blythe, 417 Mich 430; 339 NW2d 399 (1983).
II
Defendant’s next claim is more troublesome. Essentially his claim is that the only information before the trial court at the time of the arraignment was to the effect that the weapon was "broke”, therefore inoperable, and therefore the trial court’s acceptance of the plea of guilty to felony-firearm was not factually supported. GCR 1963, 785.7(3) and 785.7(5).
Whether a firearm must be operable to warrant a conviction under the felony-firearm statute is an issue that has been before this Court on several prior occasions. The best argument for defendant proceeds as follows. In People v Stevens, 409 Mich 564; 297 NW2d 120 (1980), the defendant had been convicted of felonious assault. MCL 750.82; MSA 28.277. The felonious assault statute proscribes an assault "with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon * * The felonious assault statute does not otherwise define those various weapons, so the Supreme Court looked to the general definitions found in our state laws, specifically MCL 8.3t; MSA 2.212(20). That statute defines firearms as including: "any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion * * The weapon involved in Stevens was a starter pistol with the barrel bored out so as to permit the passage of a .22 caliber projectile, but with the firing pin filed down to the point that it would not be possible to fire the pistol. The Supreme Court concluded that the starter pistol was not capable of propelling a dangerous projectile, i.e., that it was inoperable, and thus its use did not violate the felonious assault statute.
Defendant argues by analogy that the felony- firearm statute provides that a person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony has violated the statute. The felony-firearm statute does not define "firearm” so presumably, on the authority of Stevens, we should look to the general definition as used in Stevens. Since the weapon involved in this case was arguably inoperable, i.e., incapable of firing a projectile, it did not constitute a firearm. Defendant therefore argues that his plea was not factually accurate.
Defendant’s argument finds some support in other cases. In People v Ray, 119 Mich App 724; 326 NW2d 622 (1982), complainant testified that the defendant fired at him with a .38-caliber snub-nosed pistol. The defendant testified that the weapon that he concededly fired was a starter pistol. The weapon was never recovered. Although finding that the proof justified the guilty verdict, the Court of Appeals noted in part:
"We agree with defendant that a starter pistol is not a firearm within the meaning of MCL 750.227b; MSA 28.424(2). See People v Stevens, 409 Mich 564; 297 NW2d 120 (1980).” 119 Mich App 729.
In People v Mason, 96 Mich App 47; 292 NW2d 480 (1980), the defendant was convicted by a jury of carrying a concealed weapon, MCL 750.227; MSA 28.424, possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He claimed that he should not have been convicted of the felony-firearm count because the prosecution had not proved that the firearm was operable. After holding that the prosecutor need not present proof of operabil ity as an element of a prima facie case in a felony-firearm prosecution, the Court went on to note:
"In cases where the defendant raises the issue of whether a particular weapon is operable, and, as such, a 'firearm’ under the statute, the prosecution may have to present evidence on operability to convince the trier of fact that an operable 'firearm’ was actually present. In order to survive a request for a directed verdict, however, no such evidence is needed.” Mason, supra, p 51.
The Court went on to note that the evidence in any event would have been sufficient to withstand a motion for a directed verdict.
However, by far the vast majority of decided Court of Appeals cases hold that operability of a firearm is irrelevant to a determinatiion of guilt under the felony-firearm statute. See People v Pierce, 119 Mich App 780; 327 NW2d 359 (1982). Most if not all of the cases consider the question of presumed legislative intent, the language of the statute not being so clear and unambiguous that resort to legislative intent is unnecessary. Many cases refer to the legislative intent as being to discourage carrying guns, whether operable or not, and to protect victims of crime, who presumably are not less frightened if the gun just happens to be inoperable. Other cases at least touch upon the countering theory that, by prescribing a minimum two years in prison, the Legislature intended to have such punishment apply only to those defendants who are capable of producing serious injury in fact, not those who have only the appearance of being able to produce serious injury. An argument can be made that, since a conviction of felony-firearm will almost always involve the commission of an underlying felony as well, the mandatory minimum two-year sentence should be reserved for those cases in which the weapon is in fact operable, with the defendant to receive an appropriate additional sentence, depending upon the underlying offense.
The Supreme Court analysis in Stevens, supra, to the felony-firearm statute may well apply, but application of that analysis is by no means certain. In People v Schofield, 124 Mich App 134; 333 NW2d 607 (1983), the defendant was originally charged with both armed robbery and felony-firearm. A plea agreement was reached under which he pled guilty to the armed robbery charge and the felony-firearm charge was dismissed. Defendant argued on appeal that the plea bargain was illusory because he had used a toy gun to commit the robbery, that he could not have been convicted of felony-firearm, and therefore the dismissal of that charge was of no benefit to him. The Court noted:
"The use of a toy gun, disguised as a real one, may support a conviction for armed robbery. We conclude, however, that it is insufficient for felony-firearm. The statute prohibits carrying or possessing a 'firearm’ in the course of a felony or attempted felony. The statutory term 'firearm’ however, cannot be reasonably construed to include a toy gun. MCL 8.3t; MSA 2.12(20) defines a firearm as a 'weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion’ with certain exceptions not applicable here. Toy guns, of course, discharge no projectiles. We conclude that a toy gun is not a 'firearm’ as that term is used in MCL 750.227b; MSA 28.424(2). The defendant, consequently, could not have been convicted of felony-firearm.” 124 Mich App 135-136.
Upon further review in the Supreme Court, the following order was entered:
"Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, the judgment of the Court of Appeals is reversed on May 17, 1983, and defendant’s conviction is reinstated. The record demonstrates that the charge dismissed as part of the plea bargain was one 'of which he might have been convicted at trial.’ Guilty Plea Cases, 395 Mich 96, 129 (1975). Consequently, the plea bargain was not illusory.” People v Schofield, 417 Mich 988; 334 NW2d 376 (1983).
We are not entirely sure how to interpret this order. The Supreme Court may have been saying that possession of a toy gun is sufficient to support a felony-firearm conviction. The order might also mean that, at trial, the finder of fact would have believed the anticipated testimony of the victim that the gun looked real, and disbelieved the defendant’s anticipated testimony that the gun was only a toy. Conceivably the order might mean that, given the prevailing Court of Appeals opinions at the time, a finder of fact may have convicted the defendant at trial even though the conviction might not have successfully withstood an appeal.
Nonetheless, for reasons stated in People v Pierce, supra, we conclude that the term "firearm” as used in the felony-firearm statute includes a weapon from which a dangerous projectile may be propelled even though the weapon may be in a state of disrepair and therefore be incapable temporarily of firing. We join the Pierce panel in urging the Supreme Court and the Legislature to clarify the meaning of this statute.
Affirmed.
People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). | [
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Per Curiam.
Plaintiffs are all employees of defendant who were injured in accidents after October 1, 1973, involving vehicles owned by defendant. Each plaintiff submitted an accident report after his injury, entitling him to workers’ compensation benefits. Evidently, all of the plaintiffs have received or are receiving workers’ compensation benefits. Defendant in this case is a self-insured employer for purposes of the workers’ compensation and no-fault liability statutes.
Until 1978, the law in this state precluded an employee from obtaining no-fault benefits in addition to workers’ compensation benefits. The split among the panels of the Court of Appeals which then developed was finally resolved when the Supreme Court issued its opinion in Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708 (1980), on March 20, 1980. The Court ruled that an employee who suffers accidental bodily injury in the course of his employment while occupying a motor vehicle owned by the employer is entitled to collect no-fault benefits in addition to workers’ compensation.
Based on that decision, plaintiffs instituted this action, seeking no-fault benefits for their past injuries. They also sought to certify the matter as a class action, but apparently no order was ever issued on that question. Several motions for summary judgment were made on both sides. The lower court twice denied defendant’s motion for summary judgment, and also denied plaintiffs’ motion. However, on rehearing, the lower court granted defendant’s motion for accelerated judgment, from which plaintiff appeals. We affirm.
According to MCL 500.3145(1); MSA 24.13145(1), an action for no-fault benefits "may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury * * * has been given to the insurer within 1 year after the accident”. The parties agree that none of the plaintiffs’ injuries were as recent as within one year from the date of the filing of this lawsuit. Plaintiffs argue, however, that by giving their employer notice of their injuries sufficient to trigger workers’ compensation benefits, they also fulfilled the notice requirement of the no-fault act. Plaintiffs’ claim is supported by the fact that Mr. James Opperman, an employee of defendant, administered both no-fault and workers’ compensation claims, so that, when plaintiffs submitted their accident reports to him and said they wanted "whatever benefits they were entitled to”, defendant was implicitly on notice that plaintiffs were also seeking no-fault benefits.
Plaintiffs’ logic is artful but unpersuasive: that is not the law. The same argument was made by plaintiff in Myers v Interstate Motor Freight System, 124 Mich App 506; 335 NW2d 19 (1983). In denying plaintiff’s claim, this Court ruled:
"In the instant case, plaintiff admits that he did not claim to be entitled to no-fault benefits at the time he notified defendant of his injury. Plaintiff claimed workers’ compensation benefits only. Under the plain language of the statute, plaintiff’s notice of injury did not operate to extend the one-year period of limitations applicable to actions for no-fault benefits. The fact that at the time of plaintiff’s injury neither this Court nor the Supreme Court had ruled that both workers’ compensation and no-fault benefits were available to an employee injured in a motor vehicle during the course of his employment does not alter the notice requirement of MCL 500.3145(1); MSA 24.13145(1).” Id., p 509.
The Myers analysis governs this case as well. The fact that some of the plaintiffs told Mr. Opperman to give them "whatever” benefits they had coming to them does not make this case different from Myers. At the time, all they had coming to them was workers’ compensation benefits, which they received. It appears to us that plaintiffs are attempting to apply Mathis retroactively. Were there not a statute of limitations for claiming no-fault benefits, this might be an open question. Since we hold in this case that defendant employer never received notice of plaintiffs’ claims for no-fault benefits, we need not delve into the fray concerning whether the limitations period is tolled between the time the notice is filed and the insurer acts on the claim. We note that this Court reached the same conclusion in a factually similar case, Combs v Commercial Carriers, Inc, 117 Mich App 67; 323 NW2d 596 (1982), lv den 417 Mich 923 (1983).
Plaintiffs seek to argue that defendant is equitably estopped from relying on a statute of limitations defense because Mr. Opperman knew or should have known that plaintiffs might be eligible for no-fault benefits but flatly stated that their sole remedy was workers’ compensation. Plaintiffs also alleged fraudulent concealment, perhaps to avoid this Court’s decision in Bromley v Citizens Ins Co of America, 113 Mich App 131; 317 NW2d 318 (1982), where this Court denied a similar claim because plaintiff failed to allege fraud in the complaint. However, plaintiffs’ claim of fraudulent concealment is not borne out by the pleadings or affidavits.
A plaintiff who relies upon an estoppel theory to avoid a statute of limitations defense must allege actions by defendant such as concealment of a cause of action, misrepresentation as to the statutory time in which an action may be brought, or inducement not to bring the action. Bohlinger v Detroit Automobile Inter-Ins Exchange, 120 Mich App 269, 275; 327 NW2d 466 (1982). The "concealment” or "misrepresentation” alleged by plaintiffs in this case is that Mr. Opperman failed to inform plaintiffs that, after 1977, the law was confused as to whether workers’ compensation was their sole remedy. We decline to hold that Mr. Opperman was concealing or misrepresenting the law in so doing. As this Court noted in Keller v Losinski, 92 Mich App 468, 472; 285 NW2d 334 (1979):
"Nor does this Court believe that the requirements of the doctrine of equitable estoppel are met in the present action. [The insurer] did not intentionally misinform plaintiff and then seek to deny the information it had given to plaintiff. Rather, [the insurer] accurately stated to plaintiff the position which it continues to advance. There is nothing for the Court to estop [the insurer] from denying.”
Since the possibility that employees who had received workers’ compensation benefits might also be entitled to no-fault benefits was not even raised by this Court until 1977, we assume plaintiffs’ equitable estoppel argument applies only to plaintiffs injured after 1977; before then, there would have been no reason for Mr. Opperman to mention no-fault benefits to injured employees. But we fail to see how even employees injured later could have benefitted from a statement by Mr. Opper man that they might be entitled to no-fault benefits as well. All plaintiffs’ injuries occurred over one year before the Mathis decision, and thus would be precluded by this statute of limitations period. Even if the employer had decided not to deny the claim pending Mathis, it is open to question whether that would have tolled the running of the period of limitation; more recent decisions by this Court suggest it would not. Kransz v Meredith, 123 Mich App 454; 332 NW2d 571 (1983), and cases cited therein.
We further note that, since plaintiffs have already received workers’ compensation for their injuries, receipt of further compensation from defendant is limited by the setoff provision of the no-fault act:
"Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.” MCL 500.3109(1); MSA 24.13109(1).
As to plaintiffs’ other arguments on appeal, we do not find any abuse of discretion by the trial court in refusing to force defendant to produce the injury reports. Tack v City of Roseville, 67 Mich App 34; 239 NW2d 752 (1976), lv den 397 Mich 827 (1976). Plaintiffs cite no authority for forcing defendant to make admissions regarding information on the injury report forms when defendant wishes to contest them. The documents may be admissible at trial under MRE 801(d)(2)(c) or under the business record exception to the hearsay rule, MRE 803(6). However, it is not the rules of evidence but rather GCR 1963, 312 which governs discovery procedures in the circuit court. Rule 312 does not authorize compelling a party to admit matters of fact. Finally, plaintiffs protest that the circuit court should have certified this lawsuit as a class action. We find no indication in the record that the circuit court has ruled on this one way or the other. Even if it ruled as plaintiffs suggest, the record is bereft of factual information we would need to review that decision.
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Per Curiam.
The Department of Treasury appeals as of right from an order of the Court of Claims, reversing a decision of the State Board of Tax Appeals and ordering a use tax refund to petitioner. The decision of the Court of Claims judge was based on the following facts, stipulated to by the parties:
"1. RCA Service Company (Service) is an autonomous division of RCA Corporation, a Delaware corporation (RCA).
"4. Effective January 1, 1971, RCA entered into written agreements with Consumers [Consumers Power Co.] and Storage [Michigan Gas Storage] for the leasing by RCA to Consumers and Storage of radio communication equipment, * * *.
"5. The initial term of the aforesaid lease agreements was ten years.
"6. Article XII of the lease agreements provided that Consumers and Storage were solely responsible for the installation, service and maintenance of the equipment leased pursuant to the agreement and could satisfy said responsibility through their own employees, by contract with Service or by contract with a qualified third party.
"7. Consumers and Storage investigated each of the aforesaid service alternatives prior to executing one year service contracts with Service, a division of RCA.
"8. One year contracts were executed in order to enable Consumers and Storage to assess the quality of Service performance prior to making a long term commitment to one of the maintenance and service alternatives provided in Article XII of the aforesaid lease agreements. * * *.
"9. During the term of the one year service contracts, labor unrest at Consumers and Storage resulted in lengthy work stoppages. The aforesaid work stoppages prevented Consumers and Storage from making a valid assessment of Service performance under the service and maintenance contracts.
"10. The initial one year service contracts were extended for an additional term of one year ending January 1, 1973, in order that Consumers and Storage could make the assessment of Service performance they had been prevented from making during the initial one year term of the service contracts.
"11. Consumers and Storage undertook a comprehensive performance analysis of Service maintenance and service during the one year extensions.
"12. Subsequent to an evaluation of the performance analysis, Consumers and Storage decided to enter into three year service contracts with Service in order to fulfill their obligations under Article XII of the lease agreements. * * *.
"13. The execution of the service contracts by Consumers and Storage with Service followed two years of performance analysis and a thorough exploration of the feasibility of utilizing the other alternatives provided in Article XII of the lease agreements.
"14. The service contracts executed by Consumers and Storage with Service are separate from the lease agreements with RCA and embodied in different documents.
"15. The ten year term of the lease agreements expires in 1981.
"16. The service contracts provided an initial term of three years and from year to year thereafter until 1981 unless sooner terminated by either party.
"17. In a letter to Commerce Clearing House, Inc., dated March 2, 1966, Deputy Commissioner Donovan J. Rau stated that the department’s position was that the total amount charged for rentals is subject to use tax unless a separate optional service contract is entered into between lessor and lessee and the specific service charge is separately billed to the lessee. * * *.
"18. In a subsequent letter to Commerce Clearing House, Inc., dated May 7, 1966, Deputy Commissioner Donovan J. Rau stated that the department’s position as reflected in the letter dated March 2, 1966, was rescinded, and that the department was currently taking the position that a lessor of tangible property is not entitled to deduct charges for maintenance or services even though billed separately to the lessee. * * *.”
The parties also stipulated to submit the transcript of proceedings before the State Board of Tax Appeals and exhibits which had been submitted to the board. The parties agreed that the Court of Claims judge should review the claim for refund de novo, pursuant to now repealed MCL 205.9; MSA 7.657(9).
The State Board of Tax Appeals concluded that the use tax applied to both the cost for leasing equipment and to the payments to RCA’s service division for services and maintenance. The trial judge disagreed, holding that services were not taxable under the Use Tax Act.
We believe that the decision of the Court of Claims judge should be affirmed, based on this Court’s opinion in Kal-Aero, Inc v Dep’t of Treasury, 123 Mich App 46; 333 NW2d 171 (1983). In Kal-Aero, the taxpayer provided aircraft for rent or charter and also offered flight instruction and pilot services. The parties agreed that plaintiff was liable for use tax on its leasing and chartering charges. At issue was whether charges for flight instructions and pilot services were also subject to use tax when purchased by the same customer who rented or chartered aircraft. Some customers of Kal-Aero used flight instruction or pilot services without renting aircraft from Kal-Aero. Some customers rented aircraft without utilizing flight instruction or pilot services. Charges for services were separately itemized on invoices to customers. The charges for services were the same whether or not the customer rented aircraft from Kal-Aero. This Court concluded that distinct and identifiable service transactions, which may or may not occur contemporaneously with taxable rental transactions, are clearly severable from the latter and are not subject to the use tax. Kal-Aero, supra, pp 51-52.
In this case, the testimony before the Board of Tax Appeals clearly established that Consumers and Storage were not obligated to contract for maintenance services with RCA’s service division. The parties stipulated that, in fact, these customers seriously investigated the possibility of obtaining service for their leased equipment from independent sources. The fact that no other organization actually serviced the leased equipment at issue is not of any consequence, since the taxpayer had clearly made the rental and service transactions separable and distinct, both in form and in fact. We conclude that, in the present case, the maintenance services were not "necessary or incidental to complete performance of the taxable transaction”.
We specifically reject the analysis made by the State Board of Tax Appeals. The board concluded that the only question at issue in this case was whether or not RCA could reduce its tax liability by making changes in its corporate structure. The internal structure of a business entity does not determine whether or not a use tax is appropriate on services sold in connection with a lease transaction. If the services are, in fact, incidental and necessary to complete performance of the taxable transaction, they are subject to tax. The determining factor here was that the lessees were under no compulsion to contract for maintenance services with the lessor. Charges for these services were, therefore, severable from charges under the leases.
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J. T. Kallman, J.
Defendant, Farmers Insurance Group, appeals by leave granted from an order of the Wayne Circuit Court denying its motion for summary judgment in this action for no-fault insurance benefits. Farmers Insurance was assigned to provide coverage of plaintiff Robert Lewis’ claim pursuant to § 3172 of the no-fault act, MCL 500.3172; MSA 24.13172. Farmers Insurance denied coverage to Lewis because it maintained that Lewis was the owner of a motor vehicle for which no security was in effect as required by the act. MCL 500.3113; MSA 24.13113. The question before us is whether there is a "good faith” exception to the requirements of the act.
On April 25, 1981, Lewis visited the office of a purported insurance agency and contracted to purchase a policy of no-fault insurance on his vehicle. He made a payment of $50 toward his $325 annual premium and was issued a binder of insurance which designated Northland Insurance Company as the insurer and Northland Underwriters as the producing agent. The binder indicated that it expired on October 25, 1981, or thirty days after the effective date of issuance, whichever came first. In this case, the effective date was April 25, 1981. Mr. Lewis was told that he would receive a payment booklet within thirty days.
About one month later, Lewis had not received his payment booklet and returned to the agent’s office only to discover the office vacant and no person with knowledge of where the proprietors went. Mr. Lewis made no further attempts to contact his purported insurer or pay the premium.
On July 2, 1981, Lewis was seriously injured in a collision while driving his own automobile. He submitted a claim to Northland Insurance Company. The claim was denied because the purported agent from whom Lewis purchased his binder was not an authorized agent. Apparently, the unknown "agent” had been part of a large-scale fraud.
Mr. Lewis brought suit against Northland Insurance and Northland Underwriters, but summary judgment in favor of those defendants was subsequently granted. He also applied to the no-fault assigned claims facility for benefits. Defendant Farmers Insurance was assigned to handle Lewis’ claim. Farmers Insurance denied coverage due to Lewis’s failure to maintain no-fault insurance on his own vehicle. Mr. Lewis then commenced the instant action.
MCL 500.3113; MSA 24.13113 provides in pertinent part:
A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
(b) The person was the owner or registrant of a motor vehicle involved in the accident with respect to which the security required by subsections (3) and (4) of section 3101 was not in effect.
This statutory provision represents a legislative policy to deny benefits to those whose uninsured vehicles are involved in accidents. Belcher v Aetna Casualty & Surety Co, 409 Mich 231; 293 NW2d 594 (1980). The statutory distinction is a valid classification designed to encourage compliance with the no-fault act’s insurance requirements. McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976). If a person is excluded from benefits under § 3113 of the act, he is precluded from assigned-claim benefits as well. Cunningham v Citizens Ins Co of America, 133 Mich App 471; 350 NW2d 283 (1984), lv den 422 Mich 915; 369 NW2d 192 (1985).
The plaintiff does not dispute that he is the owner of an uninsured motor vehicle which was involved in the collision which caused his injuries. However, he argues that, concomitant with the purposes of the no-fault act, a "good faith” exception to § 3113 should be implied.
The primary goal of judicial interpretation of statutes is to give effect to the intent of the Legislature. Browder v International Fidelity Ins Co, 413 Mich 603; 321 NW2d 668 (1982). The first criterion is the specific language of the statute. Kalamazoo City Education Ass’n v Kalamazoo Public Schools, 406 Mich 579; 281 NW2d 454 (1979). When the statutory language is clear, no further construction is required or permitted. Attard v Adamczyk, 141 Mich App 246; 367 NW2d 75 (1985). Here, § 3113 of the no-fault act is clear—no benefits are permitted for the owner of a vehicle whose automobile has no policy in effect. The statute does not provide exceptions, and none can be judicially imposed. Accordingly, the circuit court erred in implying a "good faith” exception.
Moreover, even if such an exception could be found, the facts in the instant case would not merit application of the exception. The plaintiff’s assertion that he in good faith believed he had obtained insurance is belied by his own deposition testimony. At the time he obtained the insurance binder, he paid only a small portion of the purported annual premium and was advised that a payment booklet would be soon forthcoming. When the booklet failed to arrive, he discovered the disappearance of his supposed insurance agent. Significantly, plaintiff made no further efforts to obtain his actual insurance policy, contact his insurer, or make further premium payments. Even if plaintiff believed that his initial $50 payment had been paid to Northland Insurance, that payment represented a proportion of the stated annual premium insufficient to afford coverage up to the time of the accident.
In conjunction with his good-faith argument, plaintiff asserts that the insurance binder consti tuted a valid policy of insurance until statutorily required notice of cancellation was issued. MCL 257.520(k); MSA 9.2220(k), MCL 500.2123; MSA 24.12123, MCL 500.3224(2); MSA 24.13224(2). However, the notice requirements do not apply to cancellations due to nonpayment of premiums. MCL 500.3212; MSA 24.13212. Since plaintiff’s policy, if valid, would have nevertheless lapsed before the accident due to nonpayment, his argument is meritless.
For the foregoing reasons, the circuit court erred in denying defendant’s motion for summary judgment. Accordingly, the circuit court is reversed.
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Per Curiam.
Defendant Kevin Ray Kines appeals, by leave granted, from a circuit court order denying defendant’s motion for summary disposition pursuant to MCR 2.116(C)10). The dispositive issue on appeal is whether plaintiff Linda Kroft suffered a serious impairment of a body function. MCL 500.3135; MSA 24.13135. We find that she did not and reverse.
Plaintiff was injured in an automobile accident on August 4, 1981. Plaintiff was taken by ambulance to the hospital. X-rays revealed that plaintiff suffered two comminuted fractures of the humerus. Her arm was set in a cast. She remained in the hospital for three days.
As a result of her injuries, plaintiff was unable to do housework for the 21/2-month period her arm was in a cast. For a few months thereafter, she experienced some limitation in movement of her arm, but was able to do most housework. Plaintiff still experiences pain when washing walls or gardening, and is unable to pick up her sons, ages five and six. She is unable to crochet or knit for the periods she previously was able to crochet or knit because her arm gets tired. Plaintiff’s physician expects her to continue to have pain associated with arduous activity.
With these facts in mind, we examine the trial court’s ruling that a jury question existed regard ing whether plaintiff met the threshold statutory requirement for recovery of noneconomic loss under the no-fault act.
Under the Michigan no-fault act, a person remains subject to tort liability for noneconomic loss occasioned by his use, maintenance or operation of a motor vehicle only if the injured party has suffered death, serious impairment of body function or permanent serious disfigurement. MCL 500.3135; MSA 24.13135.
Where there is no factual dispute regarding the nature and extent of a plaintiff’s injuries or when the factual dispute is not material to the determination of whether a plaintiff has suffered a serious impairment of body function, the trial court shall rule as a matter of law whether the threshold statutory requirement has been met. Cassidy v McGovern, 415 Mich 483, 502; 330 NW2d 22 (1982). When considering the seriousness of the injury, the court should be mindful of the other threshold requirements for recovery of noneconomic loss, death and permanent serious disfigurement, and the legislative reasons for limiting the recovery for noneconomic losses; viz., prevention of overcompensation for minor injuries and reduction of litigation in automobile accident cases. Cassidy, supra.
At this state in its legal evolution, "serious impairment of body function” must be decided on a case-by-case basis. Cassidy, supra, p 503. A few standards have developed, though, which will assist the courts. First, "impairment of body function” actually means "impairment of important body functions.” Id., p 504. Second, by its own terms the statute require that any impairment be "serious.” MCL 500.3135(1); MSA 24.13135(1); Williams v Payne, 131 Mich App 403, 409; 346 NW2d 564 (1984). Third, the section applies only to "ob jectively manifested injuries.” Cassidy, supra, p 505.
In determining whether there has been a serious impairment of an important body function, a court must apply an objective standard that looks to the effect of an injury on the person’s general ability to lead a normal life. Cassidy, supra, p 505. Recovery for pain and suffering under the act is not predicated on serous pain and suffering, but on injuries that affect the functioning of the body. Id. An injury need not be permanent to be serious, but permanency is relevant. Id., pp 505-506.
When we review the facts of this case in a light most favorable to plaintiff, Rizzo v Kretschmer, 398 Mich 363, 372; 207 NW2d 316 (1973), we agree that plaintiff sustained an arm injury that has definite objective manifestations. Further, it appears that the injury, for a period of 2 Vi months, at least, impaired an important body function, the use of plaintiff’s arm.
Nevertheless, we cannot find this impairment "serious” within the meaning of the statute. The injury did not cause and is not presently causing a significant impact on plaintiff’s ability to live a normal life. Unlike the fractures in Cassidy, supra, or in Range v Gorosh (After Remand), 140 Mich 712; 364 NW2d 686 (1984), cited by plaintiff, the injuries here did not affect plaintiff’s very mobility. Further, she returned to her housework within eleven weeks of the accident. While we are not unsympathetic to the pain and inconvenience plaintiff now experiences, it does not affect her ability to lead a normal life. Williams v Payne, supra.
Because we find that the trial court erred in ruling on the merits of defendant’s motion, we address plaintiff’s claim that the trial court and this Court may not entertain the merits of defen dant’s claim because defendant failed to submit an affidavit with his motion for summary disposition. Unlike procedure under the former rules, GCR 1963, 117.2(3) and 117.3, an affidavit is not required for such a motion under the new rules, so long as "depositions, admissions, or other documentary evidence” set forth facts in support of the motion. MCR 2.116(C)(10) and 2.116(G)(3)(a).
Because plaintiff David Kroft’s cause of action is dependent on plaintiff Linda Kroft’s right of recovery, we find it unnecessary to address defendant’s claim that the trial court erred in denying summary disposition of David Kroft’s cause of action.
The trial court’s order denying defendant’s motion is reversed. Plaintiffs’ causes of actions are dismissed. | [
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Per Curiam:.
Defendant, Joe Willie Sterling, was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c), following a jury trial held in the Detroit Recorder’s Court, Judge Warfield Moore, Jr., presiding. An earlier trial resulted in a mistrial when the jury was unable to agree on a verdict. Defendant was sentenced to concurrent terms of thirty to sixty years on the first count and forty to seventy years on the second count. Defendant raises a number of issues on appeal which he claims require reversal of his conviction. We agree that the conviction must be reversed and the case remanded for a new trial before another trial judge.
The complaining witness, sixteen-year-old Deanita Partee, testified that on May 25, 1983, as she crossed a vacant lot in the vicinity of Forrest and Avery Streets in Detroit shortly after 8:00 a.m. on her way to school, defendant grabbed her from behind, threatened her with a steak knife and pulled her to a spot behind a nearby vacant school There, defendant forced her to perform fellatio on him and to submit to cunnilingus. Afterward, the man ran away. Partee testified that about two months later, she saw the defendant again on a basketball court behind another school in the same vicinity. She flagged down a passing police car, explained the situation and rode with the police back to the basketball court where she identified defendant.
At trial, defendant took the witness stand in his own behalf and presented an alibi defense. He testified that, although his normal working hours as a ceta employee for the Department of Human Rights were from 8:30 a.m. to 4:30 p.m., on the day in question he did not arrive for work until 10:00 a.m. because there was a problem with the plumbing in his sister’s house where he was staying and he also had some work left to do on an overdue school paper. He testified that he finished the school work, walked several blocks to his cousin’s house to use the bathroom, and then reported to work at 10:00 a.m.
Defendant’s sister’s testimony verified that there was a plumbing problem on the day in question and that her brother had left at about 8:00 a.m. but returned at 9:00 a.m.
Defendant also produced the testimony of Daryl Bailey, a fellow worker at the Department of Human Rights. He testified that he had received a phone call from defendant at 8:30 a.m., explaining that he would be a little late.
Defendant first contends that he was denied a fair trial by numerous questions and comments of the trial judge. We agree that the trial judge’s conduct in questioning witnesses constituted an abandonment of his mantle of judicial impartiality and denied defendant a fair trial.
A trial court may question witnesses in order to clarify testimony or elicit additional relevant information. See MRE 614(b); People v Pawelczak, 125 Mich App 231, 236; 336 NW2d 453 (1983). However, the court’s discretion in questioning witnesses is not unlimited. The court must avoid any invasion of the prosecutor’s role and exercise caution so that its questions will not be intimidating, argumentative, prejudicial, unfair or partial. People v Cole, 349 Mich 175; 84 NW2d 711 (1957), People v Jackson, 97 Mich App 660, 662; 296 NW2d 135 (1980). The test is whether "a judge’s questions and comments 'may well have unjustifiably aroused suspicion in the mind of the jury’ as to a witness’ credibility, . . . and whether partiality 'quite possibly could have influenced the jury to the detriment of defendant’s case.’ ” People v Redfern, 71 Mich App 452, 457; 248 NW2d 582 (1976), citing People v Smith, 64 Mich App 263, 267; 235 NW2d 754 (1975) (Emphasis in original.)
Although defendant has referred to numerous instances of the trial court’s comments and questions, the propriety of which are highly questionable, the following two instances especially invaded the province of the prosecutor and may have influenced the jury to the detriment of defendant’s case.
After the prosecutor’s redirect examination of the complaining witness the trial court asked her the following questions:
Mr. Koch [Assistant Prosecutor]: I have nothing further, Your Honor.
The Court: Anything further, Mr. Binion?
Mr. Binion [Defense Counsel]: No, Your Honor.
The Court: Okay. Miss Partee, let me just ask these two questions.
One, ma’am, on the date of May 25th, nineteen hundred and eighty three, did somebody come to you and grab you about the neck and that person being a male and he have a knife in his hand, did that happen?
A. Yes.
The Court: And did that happen out there on that lot which you’ve talked about in your testimony?
A. Yes.
The Court: And then were you subsequently taken by that person in whatever manner to a location behind Hancock School and there caused to perform fellatio upon that person?
A. Yes.
The Court: And did that person have a knife?
A. Yes.
The Court: And you testified that it was in the left hand or right hand, but whatever it was, it was in the hand of that person?
A. Yes.
The Court: And is it because of that, ma’am, that you did those things because of that knife?
A. Yes.
The Court: All right. And did he also perform fellatio on you in the manner in which you described?
A. Yes.
The Court: I mean cunnilingus.
A. Yes.
The Court: Sorry.
And, ma’am, are you certain that happened?
A. Yes.
The Court: There is no doubt in your mind it happened?
A. Yes, there is, it did happen.
The Court: And it was done by a male person?
A. Yes.
The Court: And, ma’am, you’ve seen the defendant sitting here in the courtroom and throughout these matters and you see him now, do you not?
A. Yes.
The Court: And is that the man that did those things on that date to you?
A. Yes, it is.
The Court: All right. I have nothing further.
Defense counsel’s objection to the court’s questions made a short time later outside of the presence of the jury was overruled.
We agree with defendant that the trial court’s questions were not designed to "produce fuller and more exact testimony” or to "clarify points and elicit additional facts.” People v Smith, supra, p 267. The trial court assumed the prosecutor’s role with advantages unavailable to the prosecution, i.e., use of leading questions. Moreover, the trial court’s questions may well have been interpreted as the court’s seal of credibility on the complainant’s testimony.
In the second instance, the trial court questioned defendant’s alibi witness about his testimony that he received a phone call from the defendant at the time the crime was allegedly committed:
Mr. Koch: Thank you, sir.
I have nothing further of this witness.
The Court: May I see that piece of paper you have in your hand?
Would you hand it to me, please, Madam Clerk. It’s an exhibit.
Sir, on here you started on the 25th. You signed in at 8:30. So that would indicate the time you arrived at the place of employment?
A. Exactly.
The Court: And it just so happen [sic] that the phone rings and you answered the phone?
A.. When I came in.
The Court: Thank you.
Later the court interjected:
Okay. Anything further?
Mr. Binion: Nothing, Your Honor.
Mr. Koch: Nothing, Your Honor.
The Court: All right. Thank you.
Every morning you sign it at 8:30, right on the nose?
A. Yes, I do.
The Court: Oh, man, prompt to steps high.
Although the precise translation of the trial court’s comment escapes us, we can only conclude from the context that it was a derogatory comment on the credibility of the witness. Viewed together, we conclude that these questions and comments invaded the province of the jury and "pierced the veil of judicial impartiality.” People v Audison, 126 Mich App 829, 833; 338 NW2d 235 (1983). We have no recourse but to find that deféndant was denied a fair trial. The fact that defense counsel made no objection to some of these comments and questions does not alter the result since defense counsel may have been understandably reluctant to challenge the judge’s own behavior on the bench. See People v Smith, supra, pp 269-270; People v Redfern, supra, p 457.
Defendant next raises five separate instances of alleged prosecutorial misconduct committed during trial and during closing argument. We agree that several of these were improper. Defendant first argues that he was denied a fair trial because of the prosecution’s extensive questioning and argument about defendant’s substitution of counsel, letters from defendant to the court about his case, and defendant’s assistance with his defense in the form of taking notes and performing legal research. The thrust of the prosecution’s closing argument was that defendant was a "jailhouse lawyer” and "manipulative” because he had requested new attorneys and assisted in his own defense. The strong implication of the prosecution’s argument was that these facts somehow tended to prove defendant’s guilt.
We fail to see how this evidence could possibly be relevant to the issue of defendant’s guilt. Moreover, the prosecution’s argument tended to chill the defendant’s exercise of his constitutional right to the effective assistance of counsel. That right includes the right to assist in his own defense. People v Henley, 26 Mich App 15, 25; 182 NW2d 19 (1970). The prosecution’s argument shows a calculated and pervasive strategy of penalizing the defendant for the exercise of his constitutional rights by characterizing defendant’s actions as manipulative abuses of the "system.” Despite the lack of defense objection, we conclude that these remarks, together with other improper remarks discussed below, created a miscarriage of justice. People v Byrd, 133 Mich App 767, 781; 350 NW2d 802 (1984).
We also agree with defendant that the prosecution’s questions about his sex life were not probative of his guilt, People v Flanagan, 129 Mich App 786, 793; 342 NW2d 609 (1983); that the prosecutor improperly implied during closing argument that there might have been other inadmissible evidence; and that the prosecution made an improper appeal to the civic duty of the jury to rid the community of rapists, People v Wright (On Remand), 99 Mich App 801, 808-810; 298 NW2d 857 (1980). Again, defendant did not interpose a timely objection to these questions and remarks. However, in conjunction with the comments characterizing defendant as a "jailhouse lawyer,” manifest injustice has resulted.
Defendant next argues that it was error to allow testimony of police officers verifying the description the complainant gave in court of defendant as the same given to them shortly after the crime occurred. We agree. While third-party testimony may relate the circumstances and procedures surrounding an identification, People v Sanford, 402 Mich 460, 484-485; 265 NW2d 1 (1978), it is not allowed to bolster the credibility of a witness by relating a consistent description given by that witness. People v Hallaway, 389 Mich 265; 205 NW2d 451 (1973). Such testimony is allowed only to rebut impeachment testimony. Since we are remanding on other issues we find it unnecessary to consider whether this error alone, in the absence of an objection, would have required reversal. However, we are satisfied that the cumulative effect of judicial indiscretions, prosecutorial excesses and incorrect rulings on evidentiary questions deprived defendant of a fair trial.
We find no merit in defendant’s argument that resentencing is required because the trial court denied his request to take a polygraph examination made after his conviction but before sentencing. MCL 776.21(5); MSA 28.1274(2)(5) provides that "[a] defendant who allegedly has committed a crime under section 520b to 520e and 520g of Act No. 328 of the Public Acts of 1931 [criminal sexual conduct statute] shall be given a polygraph examination or lie detector test if the defendant requests it.” (Emphasis added.) The statute is silent about the time when the test must be administered. See People v Rogers, 140 Mich App 576, 579; 364 NW2d 748 (1985). The statutory language is controlling in this case. It provides that the request for the test must be granted where the defendant has "allegedly” committed criminal sexual conduct. Here, defendant had already been found guilty and no longer had a statutory right to the polygraph examination.
We also find no merit in defendant’s argument that the trial court committed error requiring reversal by "instructing” the jury during voir dire that the armed element of first-degree criminal sexual conduct was satisfied if the victim believed that defendant was armed. The reasonableness of her belief was not an issue at trial since her testimony was that she actually saw the knife.
Also without merit is defendant’s argument that resentencing should be granted because the sentence recommendation in the presentence report was not specific as required by statute, MCL 771.14; MSA 28.1144. The report’s recommendation of "incarceration” fulfilled the statutory requirement. See People v Joseph, 114 Mich App 70, 78; 318 NW2d 609 (1982), lv den 417 Mich 877 (1983). Moreover, the sentencing guidelines now provide more specific standards.
Defendant’s final argument raised in a supplemental brief is that the double jeopardy clause barred his retrial after the earlier mistrial.
In Richardson v United States, 468 US 317; 104 S Ct 3081; 82 L Ed 2d 242 (1984), the United States Supreme Court held that a retrial of the charges against a criminal defendant after a mis trial based upon a hung jury does not violate the double jeopardy clause of the United States Constitution, Am V. The Michigan Supreme Court has since considered the same issue under the state constitution, Const 1963, art 1, §§ 15 and 17, and held that reprosecution after a mistrial caused by the failure of a jury to reach a verdict does not violate the Michigan Constitution. People v Thompson, 424 Mich 118; 379 NW2d 49 (1985).
The precise issue raised by the defendant was previously addressed by the Michigan Supreme Court in People v Hall, 396 Mich 650, 654; 242 NW2d 377 (1976). The Hall Court reasoned:
Defendant challenges that his second trial after the first trial ended with a hung jury violated his right not to be twice placed in jeopardy under Const 1963, art 1, § 15, citing People v Duncan, 373 Mich 650; 130 NW2d 385 (1964). In Duncan, as in this case, there was a lengthy period of jury deliberations. In both cases testimony and supplementary charges were given. In contract to Duncan, the trial court here followed the better practice (as suggested by Duncan) by making further inquiry to determine whether there was any probability that the jury ultimately could agree on a verdict. When the court ascertained there was not, the mistrial was declared. The holding in Duncan applies in this case. The double-jeopardy guarantee does not bar retrial where, as here, the trial court has reasonably concluded that the jury is unable to agree on a verdict. [Emphasis added.]
Accord: People v Riemersma, 104 Mich App 773, 779; 306 NW2d 340 (1981), People v Harvey, 121 Mich App 681, 689-690; 329 NW2d 456 (1982).
The record in this case shows that the trial court reasonably concluded that the jury was unable to agree on a verdict. The jury began deliberating at 4:19 p.m. on December 21, 1983. At 12:40 p.m. the following day, the jury sent the court a note saying "Hopelessly Deadlocked.” The jury continued to deliberate that day and after a Christmas recess on December 27, 1983. At 3:08 p.m. on the 27th, the trial court finally declared a mistrial because the jury could not reach an agreement. After this lengthy deliberation, we cannot say that the trial court’s conclusion that the jury could not agree was unreasonable. Thus, defendant’s subsequent retrial was not barred by double jeopardy.
Reversed and remanded for a new trial before a different judge of the Recorder’s Court.
This is at least the third time we have had to reverse jury convictions from Judge Moore’s court on similar grounds within the last three years. See People v Hudgins, 125 Mich App 140; 336 NW2d 241 (1983), and People v Audison, 126 Mich App 829; 338 NW2d 235 (1983).
In a second supplemental brief defendant cites People v Tyson, 423 Mich 357; 377 NW2d 738 (1985), for the proposition that double jeopardy bars his retrial because the necessity for a new trial was precipitated by prosecutorial or judicial misconduct. We conclude that Tyson does not require a complete dismissal. | [
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